Thread by @DavidMuraskin

Gorsuch's question suggests he is willing to limit dormant Commerce Clause to pure discrimination. Seems like Republican Justices did not take #Prop12 case to side with #hog industry, but to increase state's power to pass laws.

Gorsuch compares @NPPC & @FarmBureau to Lochner. That's the #SCOTUS equivalent of saying "come on man."
Also asks why courts should get into policy balancing as required by #BigAg's rule.
Calling it now #Prop12 stands, at least 6-3 (Dems + Thomas, Barrett, Gorsuch).

May get a dissent saying that the Courts should have applied Pike balancing by Alito and Barrett and saying it should survive a motion to dismiss. But, that's it.

Now in follow-up questions Alito now argues this case should get to discovery because of the low pleading standard. This is a HailMary to save this case, he sees its going down.
Even he says facts in #amicus briefs merit consideration. That means worst case remand for trial.

This just confirms earlier call, #Prop12 stands with possible dissent that rejects #BigAg's rule in favor of arguing for more fact finding--something Republic Justice's hate in all other cases.
This argument could not be going worse for #BigAg at this point.

Kagan proving up case does not need to be remanded as by showing that #California clearly has an interest in morally raising pigs under #Prop12.
Gets #Ag to admit its position requires states can't pass "morally" based laws. Hard to see anti-abortion republicans buying that.

Gorsuch says @NPPC & @FarmBureau relying on the most dormant of dormant Commerce Clause jurisprudence. Legal equivalent of an eye roll emoji.
Now making fun of the #pork specific constitutional . #SCOTUS. Cites @NimanRanch brief, noting other pork producers will meet demand.

Kavanaugh now suggesting @NPPC & @FarmBureau brought wrong claim.
Suggests remand of case. Because #BigAg will LOSE if Court actually decides case, trying to save it.

Barrett saying Big #pork relying on extending out-of-date cases through relying on dicta. Legal equivalent of saying "bless your heart."
Barrett confirming #pork position is state can't legislate based on morals. Man they're screwed.

Question is now whether Solicitor General can save #Prop12 arg for #BigAg as Timothy Bishop of MayerBrown just shit the bed (and yes I'm taking pleasure in this, he's a regular hack for factoryfarms). #SCOTUS

Solicitor General is taking a much narrower position than and Thomas points out if US actually believed #Prop12 was a problem it could preempt it. Thomas giving no hope to #Prop12 haters.

Roberts first questions about States' power to regulate immoral conduct. He's a wild card, as he's so pro-business, but now distinguishing #Pork's cases, maybe it will be 7-2 in favor of #Prop12.

Roberts says SG "over reading" precedent, another "bless your heart" from the Republicans to the business community.

Kagan comparing #gestationcrate limits in #Prop12 as limits on importing products from slave labor.
Says there is a "yuck" factor too.
Showing there are laws passed to regulate morals. Even Alito seems to be struggling with the argument can't legislate based on morals.

Barrett pointing out Solicitor General's args for narrower rule could actually be pretty broad, seeming to confirm she isn't on the Alito, Kavanaugh remand for fact-finding band wagon. She's worried about remanding and that opening the door to a prohibition on rules like #prop12

No one understanding SG or #BigAg's position that #California could ban pork but it couldn't regulate how the #pork is produced.
Boils down to if you want to participate in #CA market need to meet #CA rules. #SCOTUS

Alito trying another desperate HailMary that #Prop12 could interfere with #NAFTA or #USMCA because applies to Canadian or Mexican pork, trying to find some way to remand this case without actually adopting #BigAg's rules. He knows Court ain't going to strike down #Prop12. #SCOTUS

We're approaching the Respondents getting up. We'll know in the first 10 min whether there is any wiggle room in the votes to uphold #Prop12, but absent surprising questions this is over.

The Qs of the SG are going long. At bottom SG can't get away from idea it believes states can't pass laws based on morals. Maybe some justices will hold that bc they'll do something else w/ laws where their morals are at stake, but seems like Barrett is struggling with that here.

#Prop12 Respondents, here we go...
Expect a lot of Alito and Kavanaugh questions bc want some way to hold for #BigAg here. #SCOTUS

Barrett and Kavanaugh asking questions about limit on laws reflecting state's morals, but at most this line gets a remand to see if #gestationcrate pork is less safe, it is! Remand for fact finding in #Prop12 is a win, just a longer road.

Kavanaugh now suggesting people have all different sorts of morals so why should we let people regulate based on that. Same dude who voted to strike down #Roe and return it to the States.

Alito picking up on same thing. This is a cancel culture arg, we can't have these folks passing moral judgment on people like me.
Admittedly, this is a hard line, but all the hypos are far afield from this case.

Roberts now asking whether this law is protectionist, but problem is @NPPC & @FarmBureau disclaimed that. Also asking about how we know why law was passed. Again trying to find way to save THIS law, but not adopt #BigAg's view.

So Roberts is a swing vote, but #Prop12 proponents could lose two votes and still win right now.

Everyone looking for a limit on the Respondents' arguments. If you could pass laws based on morals bc you don't want to torture pigs could you ban products if the company doesn't give paternity leave.

Jackson now asking about pleading, don't we need to take the facts in favor of #BigAg bc case is so early.
This is the Alito, Kavanaugh effort to save the law, but Jackson knows Alito and Kavanugh won't apply this rule consistently, i.e., when a business isn't the plaintiff.

Alito back to cancel culture, says #California can bully other states by imposing its morals.
He's trying to pullback Gorsuch and Barrett, but they want cancel culture on their side.

Almost no questions for California in private question round, now @HumaneSociety counsel up.

Back to limits on State's laws to pass laws based on moral objections (here #gestationcrates that is inhumane).
#HSUS counsel relying on religion and history to point out regulation of food based on morals, this is arg crafted for Barrett, Thomas, and Gorsuch.

Jackson worried about a series of laws prohibiting products people think are immoral. Problem is this is exactly what Gorsuch, Barrett and Thomas want. Could see a concurrence from her talking about limits.

Barrett tips her hand and says the questions they're asking here relate to the #Roe question, what morals do we allow people to be enforced.

Alito complains rule proposing that "old morals are okay but new ones are not" don't make any sense.
This guy would overturn gay marriage in a second based on this exact line of argument, but consistency is for another day.

Roberts now says providing cheap food can be a moral good.
Roberts trying to reclassify law as a protectionist law bc California doesn't have pork factory farms and thus doesn't care about screwing around with them.

Sotomayor bringing back in that #gestationcrate pork is less safe #pork, this could help reassure Jackson.

Kagan pointing out that #NPPC & #FarmBureau plead themselves out of court in #Prop12 and counsel misrepresented the facts alleged to try to salvage case. This is just what Plaintiffs attorneys deal with, however, so this point will get dropped.

Jackson still worried about pleading standard and that we are so early in the case, but her argument is framed about a balancing test, rejecting #BigAg's theory of the case.

#Hog counsel about to get up, curious if he has learned anything in an hour.

#NPPC & #FarmBureau counsel is arguing that #Prop12 is no different than keeping out products bc you don't like business' politics. This is the legal cancel culture argument.

#BigAg now, FINALLY, pointing out this case is early and need to take its facts as true at this stage.
This is throwing in the towel. I know I can't get what i asked for, give me something.
Can you imagine #BigAg trying to prove #gestationcrates are safe and humane in court?!?

And we're done.
Stand by 6-3 call, maybe 7-2. There could be concurrences about limits on "morally-based laws," but that's for another day.

This case shows once again business is willing to vastly overreach before this Court as they think it will do irrational things.
Doesn't sound like it here.
But, .@FarmBureau & @NPPC members know your dues went to this waste of time. #Prop12 #SCOTUS