The Supreme Court is closed today for a legal holiday, but resumes its hearings tomorrow with one of the most important cases in years on the power of states under the Constitution to define their own way of life. The sometimes bold and daring state of California, not surprisingly, is at the center of that case. A second hearing Tuesday seeks clarification of the right of persons accused of crime to seek DNA tests of evidence gathered at the crime scene, for potential use in their defense.
The Court will broadcast “live” the audio (no video) of the hearings on its homepage, supremecourt.gov To listen, click on “Live Audio” and follow the prompt when the courtroom scene appears. The audio also will be available, under the title of the case, on C-Span TV at this link: cspan.org/supremecourt
First hearing Tuesday: National Pork Producers Council v. Ross. Scheduled for 70 minutes, the hearing begins at 10 a.m.
Background: California is the state that is most likely to try new things, especially when it thinks innovation will improve the quality of life of its people. It probably is the state that most exemplifies what Supreme Court Justice Louis D. Brandeis wrote about in 1932 in one of his most famous constitutional comments: “It is one of the happy incidents of the federal system that a single courageous state may, if its citizens choose, serve as a laboratory; and try novel and economic experiments without risk to the rest of the country.”
But the issue before the Court in this new case is whether a California experiment, requiring the humane treatment of animals in the food industry, has harmful effects beyond its own borders, and thus may be unconstitutional.
This controversy traces its constitutional roots back to the 1820s, when the Court under Chief Justice John Marshall was providing sometimes expansive interpretations of the words and phrases in the then-still-fresh U.S. Constitution. This case focuses on the meaning of these words in Article I, Section 8: “The Congress shall have power to regulate commerce…among the several states…”
From that time to the present, the Commerce Clause has drawn Justices in every generation into some of the most energetic constitutional debates. The controversy in the new California case turns on the quite peculiar fact that the Supreme Court has recognized two Commerce Clauses: the words in Article I recited above, and a second one that appears nowhere in the Constitution: the so-called “dormant Commerce Clause” (sometimes referred to as the “negative Commerce Clause”).
Year after year, the Court debates the original 1789 Article I version of the Commerce Clause as it weighs the breadth of Congress’s power to regulate the nation’s economy. In recent years, conservative Justices have grown highly skeptical of the sweeping authority modern Congresses have exercised — a situation perhaps best illustrated by the fact that the Court ruled in 2012 that the key part of Obamacare, the massive reform of the nation’s health insurance system, would have been unconstitutional when judged under that Commerce Clause. (The Court upheld it, under a separate congressional power, over taxes.)
The Court, just as often, is drawn into controversy over the sweep of that “other” Commerce Clause – the “dormant” one. That is the version before the Justices tomorrow.
Chief Justice Marshall was the first to suggest the existence of that second clause, in the famous 1824 case, Gibbons v. Ogden, involving New York State’s attempt to regulate steamboat traffic on the Hudson River. Marshall strongly suggested – without saying so explicitly – that the drafters of the Constitution meant that Congress’ power over the nation’s commerce was to be exclusive, and that the states could regulate commercial activity only if Congress had left its power unused or, as he put it, “dormant.”
He provided a little more meaning in 1829 in a far less celebrated case, Willson v. Black Bird Marsh Creek Co., involving the constitutionality of a Delaware law authorizing the building of a dam across a creek of that name. If Congress had passed a law regarding that dam, Marshall wrote, any state law in conflict with that “would be void.” But Congress had not done so and thus, he wrote, the Delaware law was not “repugnant to the power to regulate commerce in its dormant state.”
The Court has long since abandoned the idea that Congress has the “exclusive” power over commerce, but it has never abandoned the concept of the “dormant” economic power of Congress, despite repeated suggestions by some conservative Justices that it should. What that power means now is that states are left with authority to adopt commercial laws or regulations that operate inside the state, but Congress reserves for itself the regulation of commerce between or among the states – even if that power is “dormant,” as yet unused.
That translates into a sturdy ban on state authority to protect their own residents or their own internal commerce in ways that have a negative impact beyond the state’s borders, potentially resulting in discrimination against other states or the people or businesses in other states. Aside from the constitutional theory creating this ban, there is an economic one, as well: the American economy operates mostly in a national “common market,” so goods and services must be allowed to move freely, uninhibited by a state’s “protectionism” toward its own role in that market.
Perhaps no state is more likely to test the limit of the “dormant Commerce Clause” than California, the home of a dynamic form of “direct democracy” in which the citizens regularly take governing power into their own hands, through the ballot box, to promote new laws or changes in the state constitution. Tomorrow’s case involves just such an exercise.
In November 2018, the state’s voters approved “Proposition 12,” enacting a requirement that breeders of pigs within California must avoid holding the animals in pens or cages that prevent them from lying down, standing up, fully extending their legs, or turning around freely. A separate provision that went into effect early this year enlarged the space requirement.
The initial 2018 measure also went further, with a novel feature: it banned the sale within California of pork, veal or eggs that were produced anywhere in the country under conditions that California deemed “cruel” or “inhumane.” That was explained under the state’s power to protect the “health, safety and morals” of its residents as consumers of food products – a classic form of state regulation.
California insists it is only regulating economic activity that occurs within its borders, the sale of consumer goods, while its challengers insist that the practical effect is to regulate industry – especially the meat industry – everywhere else in the nation. California’s consumers make up a huge market all on their own, so conditions underlying what they buy radiate outside its borders.
The California program has been challenged twice in the Supreme Court. The Justices simply denied review, probably for procedural reasons, of the first appeal last year, in a case filed by the North American Meat Institute. Two other challengers – the National Pork Producers Council and the American Farm Bureau Federation – have had more success, gaining Supreme Court review after lower federal courts once more rejected the challenges based on the “dormant Commerce Clause.”
The questions before the Court: Is it unconstitutional for a state to adopt an economic policy that has effects occurring mostly outside of the state, forcing changes in a nationwide industry? Does the harm done outside the state outweigh any benefits California seeks for its residents, making the policy unconstitutional?
Significance: The most significant outcome of this case would come if the Court’s dominant new conservative majority were to abandon altogether the concept of the “dormant Commerce Clause.” While that doctrine has deep roots in U.S. history, it is not in the text of the Constitution, and the Court has struggled for generations to work out a theory to justify it. For example, in 1987, then-Justice Antonin Scalia wrote bluntly that “our application of the doctrine makes no sense.” It would take the votes of at least five Justices to discard the doctrine now.
Short of that, the majority may be persuaded by the pork industry’s argument that the time has come to impose more restrictive limits on the power of an individual state to adopt economic policies that have comparatively little benefit within that state, but have broad and deep impact on an industry that operates nationwide, largely outside the borders of an individual state. In this case, that industry argues that more than 99 percent of the pork that is sold in California is produced outside of that state. And, it contends, the industry is highly integrated, so any regulation of how pigs are raised in any state has a direct impact across the whole nation.
The industry has the full support of the Biden Administration’s Justice Department, which contends that federal meat inspection rules will take care of any concern that Californians might have about the purity of the pork they consume. The government’s legal brief argues that the pork industry has made “plausible” arguments that California has no legitimate interest in how pigs are housed in other states, and that the state policy “has no human health or safety benefits.”
The large stack of legal briefs filed in the case includes an interesting one, by U.S. Senator Cory Booker, a New Jersey Democrat, arguing that the courts should stay out of the effort to manage how industry is regulated, arguing that the Constitution assigns that task primarily to Congress, which, he said, is better able than the courts to make economic judgments. Congress, his brief added, has found no need to rescue the pork industry from California’s regulation.
California has the fervent support of the U.S. Humane Society, promoting its interest in animal welfare. The Society will have its own lawyer appearing in tomorrow’ hearing alongside the state’s lawyer. The pork industry’s lawyer will have a hearing partner, a Justice Department attorney.
Second hearing Tuesday: Reed v. Goertz. The hearing is scheduled for one hour, and will begin after the California hearing has ended.
Background: Science plays an important role in America’s criminal law system, and one of the most useful scientific methods is a form of genetic profiling, called “DNA testing.” DNA stands for deoxyribonucleic acid. That is present in many types of human cells, such as saliva, blood, skin tissue, semen, sweat, hair and bone. Every person’s DNA is different (except for identical twins), so its presence in a test is strong proof of individual identity – at a crime scene, the identity of the criminal.
In an important ruling in 2011 (Skinner v. Switzer), the Supreme Court ruled that persons charged with crimes under state law have a right to file a civil rights case in federal court if they seek testing of crime-scene DNA, but that is denied. Constitutionally speaking, the denial could be challenged as a violation of fair legal procedure (“procedural due process”).
This case involves a Bastrop, Texas, man who faces a death sentence after he was convicted of the 1996 murder of a 19-year-old woman. The appeal is by Rodney Reed, a black man, who was found guilty of murdering the white woman. He has filed repeated challenges in state and federal court to his conviction, insisting on his innocence and claiming that the young woman was killed by her white boyfriend, who discovered that Reed was having a secret sexual relationship with the woman.
Reed’s conviction was based partly on DNA testing of semen found on the victim’s body and clothing. He has sought wider testing of DNA evidence found at the scene when the woman’s body was discovered on a rural road near the small Texas town. His appeal to the Supreme Court raises only a question of timing: when does a two-year period begin for filing a civil rights lawsuit seeking DNA tests after a testing request has been denied.
The question before the Court: Does the two-year filing period begun to run only after all state court proceedings over the DNA test issue have been decided, or does it start as soon as the initial state court denies the testing request?
Significance: The Supreme Court agreed to settle a split among lower federal courts on when that filing period begins to run. While that is a significant issue for those involved in such controversies, and while it can make a significant difference on the procedural rights at issue, the outcome is not likely to have an impact outside of the timing question.
On Wednesday, the Court will hear a celebrity legal battle, between the estate of the pop artist Andy Warhol and a famous photographer, Lynn Goldsmith. The issue is whether Warhol violated Goldsmith’s copyright on a photo of the singer Prince when Warhol adapted a silkscreen image of it for Vanity Fair magazine. A second hearing Wednesday tests when a highly-paid supervisor is entitled to overtime pay.
