The Antipreemption Court

The Roberts Court is often derided as a pro-corporation Court. I’ve lost count of how many stories measure the Chamber of Commerce’s success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.

I think we have something of an Antipreemption Court.

Consider three preemption cases argued this term.

First, Hencely v. Fluor Corp reversed the Fourth Circuit, and found that federal law did not preempt the state-law tort claim.  Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. As I noted at the time, these votes lined up with how the justices view preemption more generally.

Second, today the Court decided Montgomery v. Caribe Transport II, LLC. Here, the Court unanimously found that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett wrote a delightful majority opinion. In only a few pages, she briskly walked through all the statutory arguments. She was confronted with an anomaly raised by the government, and responded: “The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute.” Amen.

Justice Kavanaugh wrote a concurrence joined by Justice Alito, finding that the preemption analysis is harder than the majority suggests. Ultimately Kavanaugh writes that Congress and the President can fix any problems.

The brokers and their amici raise serious concerns about the repercussions of state tort liability against brokers, and they may of course (among other possibilities) ask Congress and the President to change federal law.

That worked for Lilly Ledbetter! Still, the case was unanimous. Paul Clement, who argued Montgomery, usually does not lose 9-0. But the GOAT didn’t get a single vote here.

The third preemption case, Monsanto Company v. Durnell, was also argued by Paul Clement. And if Hencely and Montgomery are any indication, I think Clement may lose this one as well. It won’t be unanimous, but it may be 5-4 or even 6-3 for the plaintiffs. I wrote about Monsanto here and here. The Justices, even the conservative ones, are not going to engage in any creative reading of statutes to preempt federal law–even if the consequences are catastrophic. The answer will be, as Justice Kavanaugh suggested, for Congress to address the situation.

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