EDITORS' NOTE: After this story was published, the Supreme Court decided in favor of Proposition 12.
It is still dark when a small group of Humane Society of the United States staff and supporters take their places in line outside the Supreme Court around 5:45 a.m. on Oct. 11. The National Pork Producers Council is challenging California’s Proposition 12, the strongest farm animal protection law in the world. The group from the HSUS—which led the campaign to put Proposition 12 on the ballot and secure its approval in 2018—is hoping to get inside the Supreme Court to watch oral arguments. For a year, staff across the organization have been preparing for this day.
By 6:30 a.m., the line extends from the court’s steps south along First Street and around the corner. Ralph Henry, HSUS director of litigation, arrives to chat, bearing snacks. He’s been involved in more than a dozen Supreme Court cases throughout his career. This is the most complex: “There is no clear doctrine. We don’t know where the court stands.”
The sun rises over those waiting outside the Supreme Court and the bright light shines off the white marble of the building. The mood in line is expectant, excited, but the small HSUS group is just shy of being among the 50 or so members of the general public allowed inside to hear the arguments starting at 10 a.m. Those left in line huddle around a cell phone and listen in. Nearby, HSUS president and CEO Kitty Block, there to speak with reporters, also has a cell phone pressed to her ear.
Within the courtroom, the justices do not divide along the usual conservative-liberal lines. Conservative Justices Clarence Thomas and Neil Gorsuch both express deep skepticism about striking down Proposition 12 and concern for the state of California’s right to protect the health, safety and moral interests of its citizens. Liberal Justices Elena Kagan and Sonia Sotomayor also vigorously debate attorneys for the National Pork Producers Council and the Department of Justice who argue that Proposition 12 is unconstitutional because it interferes with interstate commerce and would place too heavy a financial burden on out-of-state pork farmers, disrupting pork production nationwide. Aren’t some out-of-state pork producers already complying with the measure, the justices ask?
As the 70 minutes scheduled for the argument stretches to 120, it is hard to discern which way the court is leaning. As is routine, the justices pose tough questions to both sides. Conservative Justices Gorsuch and Amy Coney Barrett, along with Kagan and liberal Justice Ketanji Brown Jackson, ask attorneys representing the state of California and the HSUS whether allowing California to protect the moral interests of its citizens could lead to economic divisions between red and blue states.
During the final minutes, HSUS chief legal counsel Jonathan Lovvorn, who’s seated at the counsel table, watches the justices’ reactions as the arguments come to a close.
One issue has not been debated. The HSUS was prepared to defend the legitimacy of California’s concern for the welfare of farm animals, Lovvorn says. It didn’t need to. Instead of focusing on arguments that animal welfare needn’t be considered, the Court has focused on the effects of the California law on interstate commerce: Do they outweigh an individual state’s moral concern for the treatment of animals? The National Pork Producers Council itself argued that gestation crates—which confine mother pigs so tightly they can’t turn around—might actually be good for pigs.
“When the pork industry stops arguing about whether we should care about animals and argues instead over how to protect animals, we’ve essentially won,” Lovvorn says. “Always before it was, ‘This is not a serious concern.’ [This time,] not one justice, no one said anything belittling the importance of protecting the welfare of farm animals.”
We have other pork producers who say they’re perfectly happy to step into the void that your firms don’t wish to fill and segregate out pork parts [including Perdue]. And we also have one of your own members attesting that prices will not increase to consumers outside California because they won’t bear it. … So in what way have you plausibly alleged harm to interstate commerce or consumers rather than to your member firms?
Justice Neil Gorsuch
Kate Brindle, HSUS senior specialist for farm animal public policy, also finds this hopeful. “Not once was there a dismissal of the moral concern for animals,” she tells other HSUS staff. “There were no pig puns, no jokes, no laughter. Proposition 12 was treated with sobriety and deep analysis.”
Outlets such as the Associated Press, ABC News, The New York Times and National Public Radio cover the oral arguments as major news.
A decision by the Supreme Court is expected by this spring. It may not be a clear win or loss, says Rebecca Cary, the HSUS’s lead attorney in the case. The Court could send the case back to the lower courts, asking them to weigh the health, safety and moral interests of California against the impact of Proposition 12 on interstate commerce. If that happens, Cary says the HSUS is ready: “We would really look forward to the opportunity to give the courts more detail about why Proposition 12 is lawful.”
After oral arguments ended and he was descending the steps of the Court to talk to the press, Lovvorn was overcome with a realization: No matter the case’s outcome, the HSUS will prevail. More and more consumers and more and more retailers are demanding humanely raised pork. The pork industry’s cruel treatment of animals is coming to light. “We are going to win this fight,” he says. “The only question is whether it happens sooner or later.”
Among the 27 amicus briefs filed in support of Prop 12:
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The pork-producing states of Illinois and Michigan, along with other states and cities
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The American Public Health Association
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378 animal welfare scientists and veterinarians
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Northeast Organic Dairy Producers and other small and independent farmers
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The Global Animal Partnership, which currently supplies gestation crate-free pork to the market
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Agriculture and resource economics professors affiliated with the National Pork Producers Council
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Perdue Premium Meat
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