# NPPC v. Ross/Opinion of Justice Sotomayor

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 Sotomayor, with whom Justice Kagan joins, concurring in part.
I join all but Parts IV–B and IV–D of Justice Gorsuch’s opinion. Given the fractured nature of Part IV, I write separately to clarify my understanding of why petitioners’ Pike claim fails. In short, I vote to affirm the judgment because petitioners fail to allege a substantial burden on interstate commerce as required by Pike, not because of any fundamental reworking of that doctrine. *** In Pike v. Bruce Church, Inc., 397 U. S. 137 (1970), the Court distilled a general principle from its prior cases. “Where [a] statute regulates even-handedly to effectuate a legitimate local public interest, and its effects on interstate commerce are only incidental, it will be upheld unless the burden imposed on such commerce is clearly excessive in relation to the putative local benefits.” Id., at 142. Further, “the extent of the burden that will be tolerated will of course depend on the nature of the local interest involved, and on whether it could be promoted as well with a lesser impact on interstate activities.” Ibid.
​As the Court’s opinion here explains, Pike’s balancing and tailoring principles are most frequently deployed to detect the presence or absence of latent economic protectionism. See ante, at 15–18. That is no surprise. Warding off state discrimination against interstate commerce is at the heart of our dormant Commerce Clause jurisprudence. See ante, at 7, 9–11, 15–16.
As the Court’s opinion also acknowledges, however, the Court has “generally le[ft] the courtroom door open” to claims premised on “even nondiscriminatory burdens.” Department of Revenue of Ky. v. Davis, 553 U. S. 328, 353 (2008); see ante, at 17. Indeed, “a small number” of this Court’s cases in the Pike line “have invalidated state laws … that appear to have been genuinely nondiscriminatory” in nature. General Motors Corp. v. Tracy, 519 U. S. 278, 298, n. 12 (1997); see ante, at 17. Often, such cases have addressed state laws that impose burdens on the arteries of commerce, on “trucks, trains, and the like.” Ibid., n. 2. Yet, there is at least one exception to that tradition. See Edgar v. MITE Corp., 457 U. S. 624, 643–646 (1982) (invalidating a nondiscriminatory state law that regulated tender offers to shareholders).
Pike claims that do not allege discrimination or a burden on an artery of commerce are further from Pike’s core. As The Chief Justice recognizes, however, the Court today does not shut the door on all such Pike claims. See ante, at 17–18, and n. 2; post, at 2–3. Thus, petitioners’ failure to allege discrimination or an impact on the instrumentalities of commerce does not doom their Pike claim.
Nor does a majority of the Court endorse the view that judges are not up to the task that Pike prescribes. Justice Gorsuch, for a plurality, concludes that petitioners’ Pike claim fails because courts are incapable of balancing economic burdens against noneconomic benefits. See ante, at 18–21. 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. See ante, at 28. 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. See post, at 3–4. 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.
In my view, and as Justice Gorsuch concludes for a separate plurality of the Court, petitioners’ Pike claim fails for a much narrower reason. Reading petitioners’ allegations in light of the Court’s decision in Exxon Corp. v. Governor of Maryland, 437 U. S. 117 (1978), the complaint fails to allege a substantial burden on interstate commerce. See ante, at 21–25. Alleging a substantial burden on interstate commerce is a threshold requirement that plaintiffs must satisfy before courts need even engage in Pike’s balancing and tailoring analyses. Because petitioners have not done so, they fail to state a Pike claim.