ELR Citation: 53 ELR 20076
No(s). 21-468 (U.S. May 11, 2023)

The U.S. Supreme Court, in a splintered 5-4 decision, affirmed dismissal of a constitutional challenge to a California law that forbids in-state sale of pork meat from breeding pigs that are "confined in a cruel manner." Out-of-state pork producers challenged the law on dormant Commerce Clause grounds, arguing it reached extraterritorially and imposed substantial burdens on interstate commerce. A district court held that the law did not regulate extraterritorially because it did not solely target interstate commerce and that it regulated in-state and out-of-state conduct equally. It dismissed the suit, and the Ninth Circuit affirmed. At the Supreme Court, Justice Gorsuch, writing the lead opinion, rejected the contention that Court precedent interpreting the dormant Commerce Clause created a "per se" rule that prohibited virtually all state laws that had the "practical effect of controlling commerce outside the [s]tate" even if they did not intentionally discriminate against out-of-state commerce. Rather, he explained that such precedent "typifie[d] the familiar concern with preventing purposeful discrimination against out-of-state economic interests." The majority of the Justices also rejected the contention that the law's benefits for California residents did not outweigh the costs it imposed on out-of-state economic interests; but they disagreed over their reasons for doing so. 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.