The Volokh Conspiracy

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How Did Justice Gorsuch Lose A Majority In National Pork Producers?

Thomas assigned the majority to Justice Gorsuch, but he couldn't hold five all the way.


National Pork Producers v. Ross is one of the more unusual Supreme Court splits I've seen in recent years. On its face, there are five votes to affirm. But the divide is quite fractured. There is no single controlling opinion. Justices in the majority and dissent have an unusually high level of agreement. And Justice Gorsuch seems to adopt two positions that are very much in tension.

Let's start with Justice Gorsuch's majority opinion. Part I provides a detailed history of food safety regulations, as well as the history behind Proposition 12. Part II provides an overview of the Court's "dormant" Commerce Clause doctrine. You can tell that Gorsuch is skeptical of these cases, but no one (here at least) urged the Court to reconsider those precedents. Part III rejects the so-called "extraterritoriality doctrine" and the "per se rule." (Chief Justice Roberts's dissent doesn't entirely disagree with Part III, but would adopt something short of a per se rule). In Parts I, II, and III, Gorsuch is writing for a majority. He is joined by Justices Thomas, Sotomayor, Kagan, and Barrett.

However, things go off the rails in Part IV. The five members of the majority do not agree on a single rationale. Part IV-A, which commands a majority, explains how the Court has followed Pike. So far, so good. The remainder of Part IV fractures into two camps. The first, conservative camp involves Justices Gorsuch, Thomas, and Barrett. The second, progressive camp involves Justice Gorsuch, Sotomayor, and Kagan. These two camps are very much at odds, and it isn't entirely clear how Gorsuch joins both camps.

The conservative camp joins Parts IV-B and IV-D. In Part IV-B, Gorsuch repeats over and over again that the Courts are not equipped to balance the "benefits" and "burdens" of state regulations. (I see shades of Bruen here–interest balancing is bad). And Gorsuch repeats, over and over again, that the Courts should not second-guess the wisdom of state legislatures. He would let Congress fix any commerce problems. It's no surprise that Justices Sotomayor and Kagan could not join Part IV-B. They think courts are equipped to balance these benefits and burdens. (Again, shades of the Bruen dissent). And Part IV-B is afflicted by Lochnerphobia. Justice Gorsuch cites Brandeis in New State Ice, Holmes in Lochner, and makes a terrible Herbert Spencer pun.

How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours. More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant "political and economic" costs and benefits for themselves, Moorman Mfg. Co. v. Bair, 437 U. S. 267, 279 (1978), and "try novel social and economic experiments" if they wish, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges cannot displace the cost-benefit analyses embodied in democratically adopted legislation guided by nothing more than their own faith in "Mr. Herbert Spencer's Social Statics," Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J.,dissenting)—or, for that matter, Mr. Wilson Pond's Pork Production Systems, see W. Pond, J. Maner, & D. Harris, Pork Production Systems: Efficient Use of Swine and Feed Resources (1991).

I told you the pun was terrible. For what it's worth, Barrett articulated this position on Lochner and economic policy during her confirmation hearing.

Then we have Part IV-C, which Sotomayor and Kagan joined, which narrowly applies the Exxon precedent. If this case was clearly governed by precedent, then one would think that Gorsuch could command a majority on Part IV-C, and there was no need to write Part IV-B. But Thomas and Barrett did not agree with each other on Part IV-C. But Thomas and Barrett did not agree with each other on Part IV-C.

In Part IV-D, Sotomayor and Kagan jump ship, and Thomas and Barrett return. Here, Gorsuch responds to the Chief's dissent. He repeats the refrain that the Courts cannot reassess the "wisdom" of state legislation.

Justice Sotomayor concurred, joined by Justice Kagan, which explained why she did not join Parts IV-B and IV-D. She would simply find that the state did not impose a "substantial burden on interstate commerce." But Sotomayor would not cause "any fundamental reworking of that doctrine." The upshot here is that she asserted that Thomas and Barrett reworked the doctrine. Sotomayor would never even get to Pike balancing. This divide should have been apparent at conference, but perhaps it wasn't.

Justice Barrett wrote a three-paragraph concurrence. She agreed with Justice Gorsuch that the benefits and burdens of Proposition 12 were "incommensurable"–that is, could not be measured and balanced by the courts. And she did not think Pike requires "such a feat." But Barrett disagreed with Gorsuch, Sotomayor, and Kagan that the plaintiffs "failed to allege a substantial burden on interstate commerce." Here, Barrett agrees with the Chief Justices's dissent that there was such a burden. Barrett concludes, "If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim."

Let me try to summarize the score. Gorsuch, Thomas, and Barrett think that the benefits and burdens of Proposition 12 cannot be balanced, so California wins. Gorsuch, Sotomayor, and Kagan think the benefits and burdens of Proposition 12 can be balanced, and under that balancing test, California wins. I am confounded how Justice Gorsuch joined both camps.

Chief Justice Roberts wrote the principal dissent, which was joined by Justices Alito, Kavanaugh, and Jackson. There is much agreement between Gorsuch and Roberts. The Chief rejects the "extraterritorial" doctrine, and also rejects a "per se" rule. Roberts thought there was a substantial burden on interstate commerce. On this front, Barrett agreed with Roberts+3. In other words, five Justices found there was a substantial burden on interstate commerce, assuming you could even make such a measurement in the first place. Roberts would have remanded the case so the Ninth Circuit could have applied the Pike test. (Barrett would not have remanded, since she thought the Court was incapable of balancing benefits and burdens.)

What happened here? Let's assume that there were (at least) five votes at conference to affirm the Ninth Circuit, with the Chief Justice in dissent. In that case, Justice Thomas assigned the majority opinion to Justice Gorsuch. Now we know that Thomas and Gorsuch are big skeptics of the Dormant Commerce Clause doctrine. That assignment was "not an auspicious start." Gorsuch then circulates a majority opinion, and included Part IV-B. Gorsuch probably saw his analysis as a faithful application of precedent, and thought the Chief was wrong. (Wouldn't be the first time.) Thomas and Barrett agreed. But Sotomayor and Kagan saw red flags. Gorsuch adds what is now Part IV-C to keep Sotomayor and Kagan. But he loses Thomas and Barrett. After Roberts circulated his dissent, Gorsuch added part IV-D, which only Thomas and Barrett joined.

Roberts's dissent is especially conciliatory, and refers to the majority's "thoughtful opinion." By contrast, Gorsuch's majority takes shots at the Chief, gratuitously citing the Holmes Lochner dissent (which Roberts extolled in Obergefell) and Shelby County (which Roberts wrote). My suspicion, based on nothing, is that Roberts was able to pick to pick off one or more votes from Gorsuch. In other words, Gorsuch lost votes on Parts IV-B. Maybe Justices Alito or Jackson. I don't think Kavanaugh flipped, as he wrote a lengthy attack on California's burdening of interstate commerce, with a well-placed reference to birth control. He was locked in with the Chief.

Of course, take this speculation with a pound of salt pork.