Reminder that it is Justice Gorsuch, the author of the opinion, who has consistently pushed back as to how the dormant commerce clause can be applied. Justice Gorsuch’s opinion holds that California’s law on pork sales is strictly kosher because it doesn’t intentionally discriminate economically against out-of-state businesses, unlike other state laws that the Court has struck down. Gorsuch along with conservative Justices Thomas and Barrett were true to their federalist beliefs and did not find any Constitutional basis for federal preemption of a state’s policy preferences on how food sold in that state should be produced. To rule otherwise, would grant the federal government powers to override state laws on virtually unlimited matters of varying import, something that seems to have escaped the Chief Justice.
Justice Kavanaugh puts it best: California “has attempted, in essence, to unilaterally impose its moral and policy preferences for pig farming and pork production on the rest of the Nation” and “propounded a ‘California knows best’ economic philosophy” that “undermines federalism and the authority of individual States.”
Justice Gorsuch writes that Congress, under its Commerce Clause authority, can pass a law that overrules state regulation like California’s. That’s a good message to send to Capitol Hill. But until that happy day, and especially in this polarized era, the majority opinion will embolden more states to impose their social policies on the commerce of other states.
The Court’s majority also offers no clear guidance to lower-court judges who will have to decide challenges to those state laws. Don’t be surprised if the policy preferences of judges replace the judge-made doctrine the Court has now thrown over the side.