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.
