Against Incommensurability in the Prop 12 Case and Beyond

by Michael C. Dorf

My latest solo Verdict column (by contrast with the various debt-ceiling columns I've been co-authoring with Prof Buchanan) offers an animal-welfare-centric view of last week's SCOTUS decision in National Pork Producers Council (NPPC) v. Ross. The pork industry plaintiffs challenged a provision implementing the part of California's Proposition 12 that mandates minimum welfare standards for the (mothers of and the) pigs slaughtered for pork products sold in state. Nearly all of the pork sold in California is produced out of state, so the plaintiffs argued that Prop 12 is extraterritorial legislation in violation of the dormant Commerce Clause (DCC).

After explaining why the case is unlikely to have far-reaching consequences for state abortion regulations, my column focuses on the pleasantly surprising fact that the Court treats animal welfare as a very serious concern of the law. To be sure, I'm realistic. I don't fool myself that Prop 12 will lead to the collapse of animal agriculture. But I count the case as a modest victory. Readers interested in the animal welfare issues should also look for my conversation with Mariann Sullivan, host of the Animal Law Podcast, which will air next week and follows up on the episode we recorded shortly after the oral argument in NPPC.

In today's essay, I examine a somewhat more abstract issue that was not ultimately decisive in NPPC but that divided the Justices: the possibility of balancing incommensurate values. 

The lead opinion by Justice Gorsuch is partly for a majority and partly for a plurality. The main reason why Justice Gorsuch did not get a majority for his entire opinion concerns his reconceptualization of DCC doctrine.

With the possible exception of Justice Thomas, who doesn't believe there is such a thing as the DCC, everyone on the Court agrees that the DCC forbids protectionist state laws that discriminate against interstate commerce. (Even Justice Thomas thinks the Constitution limits state protectionist laws, but he would locate protection in the Import/Export Clause of Article I, Sec. 10 and the Privileges and Immunities Clause of Article IV, Sec. 2).

In addition, pursuant to Pike v. Bruce Church Co. (1970) and related cases, the Court has held that even non-discriminatory state laws violate the DCC if the burden the law imposes on interstate "commerce is clearly excessive in relation to the putative local [i.e., in-state] benefits." Justice Gorsuch's NPPC opinion would read Pike and other nominally balancing cases as resulting in invalidation only when they reveal that a facially neutral law is actually discriminatory/protectionist. Although he doesn't cite the case, we might best understand Justice Gorsuch's approach as rendering the DCC parallel to the Court's understanding of equal protection pursuant to Washington v. Davis (1976): a disparate impact (on a racial minority or interstate commerce) can be evidence of illicit discrimination but is not unconstitutional on its own.

Justice Gorsuch correctly reads many but not all of the Court's Pike balancing cases. Many really do manifest a goal of smoking out protectionism. But others seem to weigh costs and benefits for their own sake. The partial concurrence/partial dissent of CJ Roberts (which was joined by Justices Alito, Kavanaugh, and Jackson) is pretty persuasive in its characterization of some of those prior cases as really about balancing regardless of discrimination.

Accordingly, Justice Gorsuch's approach should be understood as not merely a recharacterization of the Court's precedent but in some sense as a break. And he articulates a number of reasons for that break. Perhaps the key such reason is that he believes balancing costs and benefits to be an impossible task for the judiciary when the interests to be balanced are incommensurate. He favorably quotes Justice Scalia's memorable statement from Bendix Autolite Corp. v. Midwesco Enterprises, Inc. (1988): that balancing incommensurables is "like judging whether a particular line is longer than a particular rock is heavy."

That was a bridge too far for Justices Sotomayor and Kagan, who joined most of the rest of Justice Gorsuch's opinion but not the part rejecting all balancing. That's not entirely surprising. In the modern era, liberals have generally been more favorably inclined to balancing tests and standards than conservatives, who generally prefer formalism and bright-line rules--at least when their respective ideological druthers don't swamp their methodological commitments.

To be sure, Justices Sotomayor and Kagan weren't the only ones who disagreed with Justice Gorsuch's endorsement of Justice Scalia's incommensurability critique. Only Justices Thomas and Barrett fully agreed with him on that point. Given that three other conservatives (Roberts, Alito, and Kavanaugh) thought balancing permissible in the DCC context and in other settings in which legal tests call for means/ends review, the divide cannot be understood as dividing solely on a right/left axis. But that's surely a big part of what's going on. 

Despite counting myself as a liberal, I had always been fond of Justice Scalia's bon mot regarding lines and rocks. However, now that I reflect on it a bit more deeply, I think there's much less to it than I used to believe.

Let's begin with the literal comparison. Is it really impossible to say some line is longer than some rock is heavy? Suppose the line goes from the center of the Earth to the center of the sun, while the rock is a pebble. Surely the line is longer than the rock is heavy. Or suppose the line goes from one end of the head of a pin to the other, while the rock is the asteroid Ceres (which has a mass of nearly 10^21 kilograms). Then the rock is heavier--not in an absolute sense but using common sense. Length and mass are different measures, but we have means of converting based on familiar objects that provide a relative scale. Indeed, we sometimes use different measures almost interchangeably, as when we use fluid ounces as a measure of volume and ounces as a measure of weight.

We routinely balance incommensurables in daily life. Is a particular donut tastier than a particular kale salad is healthy? You might decide that on a particular occasion you'll sacrifice some degree of health for some other degree of pleasure. The better the donut tastes, the more willing you might be to eat it rather than the kale salad. Or you decide that a particular commute is longer than a particular house is comfortable, so you purchase a one-bedroom condo near the center of town rather than a four-bedroom house in the suburbs for the same price.

A utilitarian might say that these decisions reflect a common metric after all: the donut supplies more utils than the kale salad; the urban condo more utils than the suburban house. But few people ever attempt to convert such decisions into a common currency. At most, a thoughtful decision maker might make a list of pros and cons. That list will contain what Justice Gorsuch would call incommensurables.

Thus, it's not that balancing incommensurables is impossible. We would better understand Justice Gorsuch to be saying that balancing incommensurables--which is to say pretty much all balancing--is an inappropriate task for judges, presumably because it involves too much judgment and discretion. That claim is common among formalists, but it assumes that there are alternative methods of adjudication in the sorts of cases SCOTUS decides and that those alternatives do not equally call for the exercise of judgment and discretion. And while proponents of rules over standards and formalisms like textualism and originalism certainly claim that their methods are more determinate than the alternatives on offer, the evidence is pretty strongly to the contrary.

Bottom line: The complaint about incommensurability is best understood as a formalist complaint about discretion and therefore shares the flaws of the latter.