Whether a party alleging that Proposition 12 discriminates against interstate commerce states a claim under Pike v. Bruce Church, and whether lower federal courts should consider all Justices' opinions or only opinions concurring in the result when evaluating fractured Supreme Court opinions

In National Pork Producers Council v. Ross, six Justices “affirmatively retain[ed] the longstanding Pike [v. Bruce Church] balancing test for analyzing dormant Commerce Clause challenges to state economic regulations.” 598 U.S. 356, 403 (2023) (Kavanaugh, J., concurring and dissenting in part). And five Justices believed that California’s Proposition 12—which enacts a pork sales ban to regulate the manner in which pigs are housed in States across the country—could “impose[] a substantial burden on interstate commerce under Pike.” Id. at 410. But because the petitioner there had “disavow[ed] any claim,” the lawsuit failed. Thus, when a lawsuit arose that did allege discrimination, however, the result should have been clear: a party actually alleging a discriminationbased challenge to Proposition 12 states a claim, and “at least survive past the motion-to-dismiss stage.” Id. Not in the Ninth Circuit. Here, petitioner vigorously pursued a Pike challenge to Proposition 12 (among several other claims), yet the Ninth Circuit rejected them all with little analysis. The panel concluded it was bound to do so because of its own prior ruling in NPPC, even despite the subsequent rulings from this Court. That’s wrong substantively and procedurally. Substantively, although appearing in a fractured decision, the rulings reached by a majority of Justices are right—petitioner does state a claim under Pike, not to mention petitioner's several other claims. Procedurally, the only way the Ninth Circuit reached this conclusion was by rejecting the majority views from this Court in NPPC, because some of those ii opinions were styled as “dissents.” The Ninth Circuit’s approach exacerbates a hopeless division among the circuits about how to evaluate holdings from fractured opinions from this Court. The questions presented are: 1. Whether a party alleging that Proposition 12 discriminates against interstate commerce, both directly and under Pike v. Bruce Church (among many other viable counts), states a claim, as a majority of Justices concluded in Ross. 2. Whether lower federal courts evaluating fractured opinions from this Court consider all Justices’ opinions to determine the majority position on a legal issue as the First, Third, Fourth, and Eighth Circuits hold, or whether lower courts are limited to consider only opinions concurring in the result as the District of Columbia, Second, Fifth, Sixth, Ninth, Tenth, and Eleventh Circuits hold.