Opinion of Kavanaugh, J.
SUPREME COURT OF THE UNITED STATES
No. 21–468
NATIONAL PORK PRODUCERS COUNCIL, ET AL., PETITIONERS v. KAREN ROSS, IN HER OFFICIAL CAPACITY AS SECRETARY OF THE CALIFORNIA DEPARTMENT OF FOOD & AGRICULTURE, ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT
[May 11, 2023]
Justice Kavanaugh, concurring in part and dissenting in part.
In today’s fractured decision, six Justices of this Court affirmatively retain the longstanding Pike balancing test for analyzing dormant Commerce Clause challenges to state economic regulations. Ante, at 1 (Sotomayor, J., joined by Kagan, J., concurring in part); ante, at 2–3 (Roberts, C. J., joined by Alito, Kavanaugh, and Jackson, JJ., concurring in part and dissenting in part); see Pike v. Bruce Church, Inc., 397 U. S. 137 (1970). Although Parts IV–B and IV–D of Justice Gorsuch’s opinion would essentially overrule the Pike balancing test, those subsections are not controlling precedent, as I understand it.
But Part IV–C of Justice Gorsuch’s opinion is controlling precedent for purposes of the Court’s judgment as to the plaintiffs’ Pike claim. There, a four-Justice plurality of the Court applies Pike and rejects the plaintiffs’ dormant Commerce Clause challenge under Pike. The plurality reasons that the plaintiffs’ complaint did not sufficiently allege that the California law at issue here imposed a substantial burden on interstate commerce
