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Pigs can't fly, but they can produce tough legal questions at the Supreme Court

Saul Loeb
AFP via Getty Images

Pigs, morality and the U.S. Constitution were all in play at the U.S. Supreme Court on Tuesday.

The case was about more than pigs, of course. It involves how much regulation a state may constitutionally enact when those laws have a significant effect on what happens in other states. Tuesday's case pitted most of the pork producers in the U.S. against a California law enacted by referendum by lopsided margins. The law bans the sale of pork in California when it is produced "inhumanely" — specifically, when the pork comes from pregnant or nursing sows confined in cages so small that the pigs cannot turn around.

California has fewer than 1% of the breeding pigs in the country. The state imports more than 99% of the pork meat it consumes. So the National Pork Producers Council and the American Farm Bureau Federation brought a legal challenge, contending that California's law is unconstitutional.

Now that may not sound like a humdinger to a lot of readers, but the Supreme Court's time limits on arguments seem to have flown out the window of late, and an oral argument that was scheduled for an hour and 10 minutes morphed into well over two hours on Tuesday.

Pork producers argument

Timothy Bishop, representing the pork producers, conceded that California could ban pork products outright in the state, but he maintained that it could not impose a state law that principally affects what happens in other states.

Justice Elena Kagan took issue with drawing lines that way. "If you're thinking about costs," she said, "California banning your produce would be the greatest cost of all."

Bishop replied that the law's main impact is "on the state where the business is located." He noted that Iowa has 65,000 sow farms, which would be affected by the California law. What California is doing, Bishop said, is essentially trampling on Iowa's ability to breed those sows.

Justice Sonia Sotomayor pointed to a brief in the case from scientists who argue that keeping sows so confined increases the likelihood of new diseases jumping from animals to humans. The policy, she reasoned, could just as legitimately be health-based, as well as morality-based.

Justice Amy Coney Barrett seemed dubious about the pork industry's assertion that a state's moral interest should have no role to play. In that vein there were many hypotheticals.

Supposing this case occurred prior to the end of slavery, asked Kagan. Could a state ban goods produced by enslaved people?

Justice Neil Gorsuch, in turn, asked why not let the market decide whether California's law would achieve its desired results. After all, he said, there appear to be some pork producers willing and able to step in and meet California's requirements.

California's view

Defending California's law, state Solicitor General Michael Mongan faced just as many tough questions. Chief Justice John Roberts noted a problem with morality-based regulations. "I think people in some states ... that produce a lot of pork, in Iowa or North Carolina or Indiana, may think there's a moral value in providing a low-cost source of protein to people, maybe particularly at times of rising food prices."

Several justices noted that a lot of policy disputes could inspire states to wield laws like this as a sort of weapon. What, they asked, would stop Texas from banning products produced by union labor, or another state from banning fruit picked by undocumented workers, or yet another state from banning goods produced by people in a state with a lower minimum wage?

"We live in a divided country," Justice Kagan observed. "The balkanization that the Framers were concerned about is surely present today ... do we want to live in a world where we're constantly at each others throats and ... Texas is at war with California and California at war with Texas?

Justice Samuel Alito, taking aim at California's role in the market, asked, "Is California unconcerned about all this because it is such a giant? ... You can bully other states, and so you're not really concerned about retaliation?"

The questions were sufficiently difficult that conservative Justice Brett Kavanaugh and liberal Justice Kagan noted that the case had come to the court at what is known as the pleadings stage, without a trial or findings of fact. That could allow the court to make a minimal decision and send the case back to the lower courts for a fuller exploration.

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Nina Totenberg is NPR's award-winning legal affairs correspondent. Her reports air regularly on NPR's critically acclaimed newsmagazines All Things Considered, Morning Edition, and Weekend Edition.