Page:NPPC v. Ross.pdf/31

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Cite as: 598 U. S. ____ (2023)
25

Opinion of Gorsuch, J.

App. to Pet. for Cert. 335a; see also Brief for Agricultural and Resource Economics Professors as Amici Curiae 15, 23 (suggesting negligible effect on out-of-state prices for consumers not interested in Proposition 12-compliant pork). Further experience may yield further facts. But the facts pleaded in this complaint merely allege harm to some producers’ favored “methods of operation.” Exxon, 437 U. S., at 127. A substantial harm to interstate commerce remains nothing more than a speculative possibility. Ibid.

D

The Chief Justice’s concurrence in part and dissent in part (call it “the lead dissent”) offers a contrasting view. Correctly, it begins by rejecting petitioners’ “almost per se” rule against laws with extraterritorial effects. Post, at 1. And correctly, it disapproves reading Pike to endorse a “freewheeling judicial weighing of benefits and burdens.” Post, at 2. But for all it gets right, in other respects it goes astray. In places, the lead dissent seems to advance a reading of Pike that would permit judges to enjoin the enforcement of any state law restricting the sale of an ordinary consumer good if the law threatens an “ ‘excessive’ ” “har[m] to the interstate market” for that good. Post, at 4–9. It is an approach that would go much further than our precedents permit. So much further, in fact, that it isn’t clear what separates the lead dissent’s approach from others it purports to reject.

Consider an example. Today, many States prohibit the sale of horsemeat for human consumption. See Cavel Int’l, Inc. v. Madigan, 500 F. 3d 551, 552–555 (CA7 2007). But these prohibitions “har[m] the interstate market” for horsemeat by denying outlets for its sale. Not only that, they distort the market for animal products more generally by pressuring horsemeat manufacturers to transition to different products, ones they can lawfully sell nationwide. Under the lead dissent’s test, all it would take is one complaint