VOICES: Wrestling with the pigs in the Supreme Court

Mark Twain famously quipped that if you wrestle with the pigs, you both will get dirty, but the pigs will enjoy it. Recently, the pigs (through the State of California) were wrestling in the United States Supreme Court, wrestling for more living space as they would go from farrowing to market. And, in a very recent case, the pigs won.

In National Pork Producers Council v. Ross, the plaintiffs had challenged a California law that prohibited the sale of any pork in the State of California from pigs that have been kept in crates from farrowing to the slaughterhouse. That law had been approved by the people of California in 2018 when they adopted Proposition 12 that effectively encouraged “free range” pigs.

While that California law would apply only to pork sold in California, its impact would be felt nationally because 99% of the pork consumed in California is raised and processed in the rest of the country. And, in the rest of the country, there are many producers that use confined gestation crates and cages to minimize space and maximize profits as they raise and bring pigs to market.

California maintained that it had the right to control the quality of food coming into its state, while, on the other side of that pork chop argument, the producers claimed that California was not adopting a food safety issue but, instead, was imposing its moral beliefs on the rest of the states. They also argued that the U.S. Constitution’s commerce clause effectively prohibits one state from projecting its legislation into other states in a way that would infringe the autonomy of the other states, and further argued that this prohibition would be an impermissible burden on interstate commerce.

Now, I grew up on a farm in Iowa, and certainly our pigs, calves and chickens were free range, sometimes too much so, as we struggled to keep them from running away. We would hand-feed them as soon as they were weaned and then watch them grow to market weight. Periodically, we would load our pigs and truck them to the Omaha Stockyards to sell on the open market.

That has all changed, of course, Those stockyards no longer exist, and the big meat producers often raise their own pigs. For example, the new Seaboard Foods pork plant in Sioux City now processes up to 10,000 hogs per day. To supply that many hogs to its pork processing plant, Seaboard Foods has its own pig farms located within truck range of the plant, including at least two pig farms in my home county, one of which virtually abuts our original farm.

To my surprise, the Supreme Court, in a muddled and convoluted opinion, ruled in favor of the pigs. In doing so, the court gave only minor lip service to restrictions on extending the California law into other states and to the burdens on interstate commerce. Thankfully, many of the major pork producers such as Seaboard Foods (e.g., St. Joe Pork & Seaboard Farms brands) and JBS Foods (e.g., Swift & Pilgrim’s brands) are moving away from crates and cages and moving more towards group housing which is only a gate or two away from free range pigs.

Given those marketplace adjustments in pork raising operations, I believe that the impact of the Supreme Court’s decision on the pork operations in other states will be more moderate than initially feared, although it is possible that those adjustments will result in higher prices for pork. In the final analysis, it appears that the Supreme Court’s wrestling with the pigs did leave the judges with a very dirty and disjointed opinion, but just like the old adage, the pigs survived this wrestling match without getting dirty. In fact, the pigs won this wrestling match.

Dayton attorney Merle Wilberding is a regular Ideas & Voices contributor.

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