The Supreme Court issued a decision in National Pork Producers Council v. Ross, holding that California may regulate sale of pork products in state even if it may affect interstate commerce. Not much of an election law angle.

One theory advocated by the petitioners, per the Court: “Failing in their first theory, petitioners retreat to a second they associate with Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Under Pike, they say, a court must at least assess ‘”the burden imposed on interstate commerce”‘ by a state law and prevent its enforcement if the law’s burdens are ‘”clearly excessive in relation to the putative local benefits.”‘”

Here, the Court has a lot to say about balancing tests–some very skeptical.

I suggested last year that I thought the Anderson-Burdick balancing test for reviewing election rules in federal court may not survive the decade. So the Court’s overly skeptical language on these points is worth noting, I think–although only three justices expressed the greatest skepticism.

In an opinion by Justice Gorsuch, joined only in this part by Justices Thomas and Barrett (all selections lightly edited):

While Pike has traditionally served as another way to test for purposeful discrimination against out-of-state economic interests, and while some of our cases associated with that line have expressed special concern with certain state regulation of the instrumentalities of interstate transportation, petitioners would have us retool Pike for a much more ambitious project. They urge us to read Pike as authorizing judges to strike down duly enacted state laws regulating the in-state sale of ordinary consumer goods (like pork) based on nothing more than their own assessment of the relevant law’s “costs” and “benefits.” That we can hardly do. Whatever other judicial authorities the Commerce Clause may imply, that kind of freewheeling power is not among them. Petitioners point to nothing in the Constitution’s text or history that supports such a project. And our cases have expressly cautioned against judges using the dormant Commerce Clause as “a roving license for federal courts to decide what activities are appropriate for state and local government to undertake.” While “[t]here was a time when this Court presumed to make such binding judgments for society, under the guise of interpreting the Due Process Clause,” we have long refused pleas like petitioners’ “to reclaim that ground” in the name of the dormant Commerce Clause.

Not only is the task petitioners propose one the Commerce Clause does not authorize judges to undertake. This Court has also recognized that judges often are “not institutionally suited to draw reliable conclusions of the kind that would be necessary . . . to satisfy [the] Pike” test as petitioners conceive it.

Our case illustrates the problem. On the “cost” side of the ledger, petitioners allege they will face increased production expenses because of Proposition 12. On the “benefits” side, petitioners acknowledge that Californians voted for Proposition 12 to vindicate a variety of interests, many noneconomic. How is a court supposed to compare or weigh economic costs (to some) against noneconomic benefits (to others)? No neutral legal rule guides the way.The competing goods before us are insusceptible to resolution by reference to any juridical principle. Really, the task is like being asked to decide “whether a particular line is longer than a particular rock is heavy.” Bendix Autolite Corp. v. Midwesco Enterprises, Inc., 486 U. S. 888, 897 (1988) (Scalia, J., concurring in judgment).

Faced with this problem, petitioners reply that we should heavily discount the benefits of Proposition 12. They say that California has little interest in protecting the welfare of animals raised elsewhere and the law’s health benefits are overblown. But along the way, petitioners offer notable concessions too. They acknowledge that States may sometimes ban the in-state sale of products they deem unethical or immoral without regard to where those products are made (for example, goods manufactured with child labor). See Tr. of Oral Arg. 51 (“[A] state is perfectly entitled to enforce its morals in state”); see also Western Union Telegraph Co. v. James, 162 U. S. 650, 653 (1896) (holding that States may enact laws to “promote . . . public morals”). And, at least arguably, Proposition 12 works in just this way—banning from the State all whole pork products derived from practices its voters consider “cruel.” Petitioners also concede that States may often adopt laws addressing even “imperfectly understood” health risks associated with goods sold within their borders. And, again,no one disputes that some who voted for Proposition 12 may have done so with just that sort of goal in mind.

So even accepting everything petitioners say, we remain left with a task no court is equipped to undertake. On the one hand, some out-of-state producers who choose to comply with Proposition 12 may incur new costs. On the other hand, the law serves moral and health interests of some (disputable) magnitude for in-state residents. Some might reasonably find one set of concerns more compelling. Others might fairly disagree. How should we settle that dispute? The competing goods are incommensurable. Your guess is as good as ours.

More accurately, your guess is better than ours. In a functioning democracy, policy choices like these usually belong to the people and their elected representatives. They are entitled to weigh the relevant “political and economic” costs and benefits for themselves, Moorman Mfg. Co. v. Bair, 437 U. S. 267, 279 (1978), and “try novel social and economic experiments” if they wish, New State Ice Co. v. Liebmann, 285 U. S. 262, 311 (1932) (Brandeis, J., dissenting). Judges cannot displace the cost-benefit analyses embodied in democratically adopted legislation guided by nothing more than their own faith in “Mr. Herbert Spencer’s Social Statics,” Lochner v. New York, 198 U. S. 45, 75 (1905) (Holmes, J.,dissenting)—or, for that matter, Mr. Wilson Pond’s Pork Production Systems, see W. Pond, J. Maner, & D. Harris, Pork Production Systems: Efficient Use of Swine and Feed Resources (1991).

If, as petitioners insist, California’s law really does threaten a “massive” disruption of the pork industry, —if pig husbandry really does“‘imperatively demand’” a single uniform nationwide rule—they are free to petition Congress to intervene. Under the (wakeful) Commerce Clause, that body enjoys the power to adopt federal legislation that may preempt conflicting state laws. That body is better equipped than this Court to identify and assess all the pertinent economic and political interests at play across the country. And that body is certainly better positioned to claim democratic support for any policy choice it may make. But so far, Congress has declined the producers’ sustained entreaties for new legislation. And with that history in mind, it is hard not to wonder whether petitioners have ventured here only because winning a majority of a handful of judges may seem easier than marshaling a majority of elected representatives across the street.

Justice Sotomayor, joined by Justice Kagan, explained why she did not join this part of Justice Gorsuch’s opinion:

JUSTICE GORSUCH, for a plurality, concludes that petitioners’ Pike claim fails because courts are incapable of balancing economic burdens against noneconomic benefits. I do not join that portion of JUSTICE GORSUCH’s opinion. I acknowledge that the inquiry is difficult and delicate, and federal courts are well advised to approach the matter with caution. Yet, I agree with THE CHIEF JUSTICE that courts generally are able to weigh disparate burdens and benefits against each other, and that they are called on to do so in other areas of the law with some frequency. The means-ends tailoring analysis that Pike incorporates is likewise familiar to courts and does not raise the asserted incommensurability problems that trouble JUSTICE GORSUCH.

Justice Barrett separately explains her thoughts on judicial balancing:

But to weigh benefits and burdens, it is axiomatic that both must be judicially cognizable and comparable. See Department of Revenue of Ky. v. Davis, 553 U. S. 328, 354–355 (2008). I agree with JUSTICE GORSUCH that the benefits and burdens of Proposition 12 are incommensurable. California’s interest in eliminating allegedly inhumane products from its markets cannot be weighed on a scale opposite dollars and cents—at least not without second-guessing the moral judgments of California voters or making the kind of policy decisions reserved for politicians. Ante, at 18–21; Davis, 553 U. S., at 360 (Scalia, J., concurring in part). None of our Pike precedents requires us to attempt such a feat.

. . . If the burdens and benefits were capable of judicial balancing, I would permit petitioners to proceed with their Pike claim.

Chief Justice Roberts, joined by Justices Alito, Kavanaugh, and Jackson, dissented on this part:

Speaking for three Members of the Court, JUSTICE GORSUCH objects that balancing competing interests under Pike is simply an impossible judicial task. I certainly appreciate the concern, see United Haulers, 550 U. S., at 343, 347, but sometimes there is no avoiding the need to weigh seemingly incommensurable values. See, e.g., Schneider v. State (Town of Irvington), 308 U. S. 147, 162 (1939) (weighing “the purpose to keep the streets clean and of good appearance” against the “the constitutional protection of the freedom of speech and press”); Winston v. Lee, 470 U. S. 753, 760 (1985) (“The reasonableness” under the Fourth Amendment “of surgical intrusions beneath the skin depends on a case-by-case approach, in which the individual’s interests in privacy and security are weighed against society’s interests in conducting the procedure.”); Addington v. Texas, 441 U. S. 418, 425 (1979) (“In considering what standard should govern in a civil commitment proceeding, we must assess both the extent of the individual’s interest in not being involuntarily confined indefinitely and the state’s interest in committing the emotionally disturbed under a particular standard of proof.”). Here too, a majority of the Court agrees that it is possible to balance benefits and burdens under the approach set forth in Pike.

Justice Kavanaugh writes separately to ensure that balancing tests are saved:

n.3 The portions of JUSTICE GORSUCH’s opinion that speak for only three Justices (Parts IV–B and IV–D) refer to THE CHIEF JUSTICE’s opinion as a “dissent.” Ante, at 18–21, 25–27. But on the question of whether to retain the Pike balancing test in cases like this one, THE CHIEF JUSTICE’s opinion reflects the majority view because six Justices agree to retain the Pike balancing test: THE CHIEF JUSTICE and JUSTICES ALITO, SOTOMAYOR, KAGAN, KAVANAUGH, and JACKSON. On that legal issue, JUSTICE GORSUCH’s opinion advances a minority view.