The Volokh Conspiracy

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Supreme Court

SCOTUS Chooses California Over Pork Producers and Bacon Consumers (and Issues Four Other Opinions Too)

The Supreme Court issues five merits opinions, but there are still forty more waiting.


The Supreme Court issued opinions in five argued cases today, bringing the total number of merits decisions up to 18, with forty* more to go (unless some get mooted out).

The biggest decision of the day was National Pork Producers Council v. Ross, a Dormant Commerce Clause challenge to California's law barring in-state sale of animal products that fail to meet California's regulatory requirements. The pork producers argued this law unconstitutionally burdened interstate commerce and extraterritorialized California's regulatory preferences. A majority of the Supreme Court disagreed.

Justice Gorsuch wrote for the Court, but only one justice (Thomas) agreed with him in full. In fact, the Justices were quite splintered. See for yourself:

GORSUCH, J., announced the judgment of the Court, and delivered the opinion of the Court with respect to Parts I, II, III, IV–A, and V, in which THOMAS, SOTOMAYOR, KAGAN, and BARRETT, JJ., joined, an opinion with respect to Parts IV–B and IV–D, in which THOMAS and BARRETT, JJ., joined, and an opinion with respect to Part IV-C, in which THOMAS, SOTOMAYOR, and KAGAN, JJ., joined. SOTOMAYOR, J., filed an opinion concurring in part, in which KAGAN, J., joined. BARRETT, J., filed an opinion concurring in part. ROBERTS, C. J., filed an opinion concurring in part and dissenting in part, in which ALITO, KAVANAUGH, and JACKSON, JJ., joined. KAVANAUGH, J., filed an opinion concurring in part and dissenting in part.

There's quite a bit in there to unpack, but there are some important takeaways from the bottom-line result.

First, the opinion signals a narrowing of the Dormant Commerce Clause to an anti-discrimination rule, as opposed to a broader protection for the frictionless movement of goods and services across state lines.

Second, the opinion provides a bright green light for states to adopt environmental laws that regulate goods and services based upon how they are produced (e.g. their carbon intensity, etc.). California already leads the way with such laws, and this decision should make it more difficult for business groups to challenge such measures.

Third, the decision complicates the already questionable "Roberts Court is pro-business" narrative, by demonstrating (yet again) that when conservative jurisprudential commitments conflict with corporate interests, the former prevail. Combined with decisions such as Virginia Uranium v. WarrenNational Pork Producers shows that business groups cannot depend on conservative justices to support their challenges to state regulations.

National Pork Producers was one of five total decisions issued today. The other four were:

  • Santos-Zacaria v. Garland, in which a unanimous Court concluded that the exhaustion requirement in 8 U. S. C. §1252(d)(1) is not jurisdictional so a noncitizen who seeks to challenge an order of removal can proceed to federal court without first exhausting all administrative remedies. Justice Jackson wrote for the Court. Justice Alito concurred in the judgment joined by Justice Thomas.
  • Financial Oversight and Management Board for Puerto Rico v. Centro de Periodismo Investigativo, in which an 8-1 Court concluded that Congress did not abrogate the Board's sovereign immunity. Justice Kagan wrote for the Court. Justice Thomas dissented.
  • Percoco v. United States, in which a unanimous Court concluded that a private citizen with influence over government decision-making cannot, on that basis, be convicted for "honest services" fraud. Justice Alito wrote for the Court. Justice Gorsuch concurred in the judgment, joined by Justice Thomas.
  • Ciminelli v. United States, in which a unanimous Court concluced that "potentially valuable economic information" of the sort "necessary to make discretionary economic decisions" is not the sort of traditional property interest that can support a conviction for wire fraud under federal law. Justice Thomas wrote for the Court. Justice Alito concurred.

It is worth noting that these last two opinions — Percoco and Ciminelli—continue the Court's recent trend of narrowing the applicability of federal laws used to prosecute political corruption.

With today's decisions, Justices Jackson, Kagan, and Gorsuch have tied Justice Kavanaugh's mark of three opinions for the Court this term. Justices Thomas and Alito each got out their first majorities of the term today, in addition to adding more to their counts of separate opinions. The only justice not to have authored an opinion for the Court in an argued case thus far is the Chief. Presumably this is because he is holding one or more big-ticket cases for himself.

Predictions are hard, especially about the future, but today's releases incline me to think that the Chief will have Sackett from the October sitting, and at least one of the affirmative action cases from November (unless his opinion does not command a majority). I am also inclined to think that Alito may have Brackeen. Of course, these predictions are worth no more than you paid for them.


*Note: The Court heard argument in sixty cases this term. The reason there will be no more than 58 opinions in argued cases is because one of those cases (In re Grand Jury) was DIGed (dismissed as improvidently granted), and SEC v. Cochran case was combined with Axon Enterprise v. FTC for decision.

[Note: I mistakenly wrote that Justice Barrett joined all of Justice Gorsuch's National Pork Producers opinion. She did not join Part IV-C, however. The error has been corrected.]