An Empirical Study of Obstacle Preemption in the Supreme Court

• Publication year: 2021

89 Nebraska L. Rev.682. An Empirical Study of Obstacle Preemption in the Supreme Court

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Gregory M. Dickinson(fn*)

An Empirical Study of Obstacle Preemption in the Supreme Court

TABLE OF CONTENTS

I. Introduction..........................................682

II. Defining Federal Preemption..........................684

III.Judicial Alignment on Preemption.....................685

IV.The Wyeth Clarification...............................687
A. Factual Background and Legal Claims.............687
B. The Liberal Bloc's Majority Opinion ...............688
C. Justice Thomas's Concurrence.....................690
D. The Conservative Bloc's Dissent...................691
E.Lessons and Unanswered Questions...............692

V. An Empirical Study of Obstacle Preemption in the Supreme Court from 1994-2009 .......................693
A.General Observations .............................694
B.Ideological Realignment on Obstacle Preemption .................................694
C.Obstacle Preemption Voting Blocs .................698

VI. Counting to Five: The Court's Emerging Conflict Preemption Analysis ..................................700
A. Justice Thomas ...................................701
B. The Liberal Wing .................................702
C. The Newcomers ...................................705

VII. Conclusion ............................................707

I. INTRODUCTION

The Supreme Court's preemption jurisprudence over the last few decades has been unpredictable to say the least. Preemption defies traditional conservative-liberal alignment, as conservatives are torn between support of federalism and capitalist efficiency, and liberals are torn between support of strong national governance and multiplicity of legal remedies. As a result, justices often "flip" to take positions in tension with those that they take in federalism cases that do not involve questions of preemption. This tension between competing values combined with the complexity of preemption doctrine and the

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sheer number of values at stake in preemption cases produces great uncertainty. Court watchers and business interests alike have been unable to predict the path of the Court's jurisprudence.(fn1)

With its recent decision in Wyeth v. Levine,(fn2) however, the Court has clarified its preemption analysis. Justice Thomas, in his concurrence, firmly rejects an entire line of the Court's preemption decisions-"purposes and objectives" obstacle preemption. This rejection is not a sudden development; Justice Thomas has disfavored obstacle preemption for some time. What is significant, though, is the opinion's frankness and the clarity that it lends to the Court's past (and future) conflict preemption analysis.

While urging the Court to abandon its obstacle preemption doctrine as overly broad and unsupported by congressional authorization, Justice Thomas simultaneously advocates for the expansion of what has traditionally been a very narrow category of preemption: impossibility preemption. Such an expansion is likely made necessary by the gap that would otherwise be left by his rejection of the obstacle preemption category. The natural question, then, is whether Justice Thomas's expanded impossibility preemption might look very much like the narrow version of obstacle preemption that has been applied by the Court's liberal bloc for some time. If this is the case, do we now have a firm five-Justice majority applying a unified doctrine to obstacle preemption cases? If so, what does that doctrine look like?

This Article sets out to answer these questions through an empirical analysis of the Court's obstacle preemption decisions. Justice Thomas's drift to disfavor obstacle preemption has been gradual. Although he did not formally renounce the doctrine until Wyeth, he has presumably been applying a similar analysis for some time. An examination of each of the Court's obstacle preemption cases over the last fifteen years confirms that presumption. The analysis shows that Justice Thomas's decisions very closely parallel those of the Court's liberal bloc over the same time period. His broad impossibility analysis is thus functionally coterminous with a narrow version of obstacle preemption. Justice Thomas and the Court's liberals form a distinct and somewhat reliable anti-obstacle preemption bloc. The analysis also shows, however, that because Justice Thomas and the Court's liberals arrive at their positions through quite different analyses, their bloc is subject to fracture in certain particularly contentious cases.

Part II presents a brief overview of the Court's current preemption doctrine. Part III details the breakdown of traditional left-right voting blocs in preemption cases and the consequent failure of political voting models to explain the Court's preemption jurisprudence. Part

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IV uses the recent Wyeth v. Levine decision as a lens through which to view the Court's peculiar voting patterns in obstacle preemption cases. Part V presents an empirical analysis of the Court's obstacle preemption cases over the last fifteen years. The data show an emerging five-Justice voting bloc opposed to obstacle preemption resulting from the surprising alignment of Justice Thomas with the Court's liberal wing. Finally, Part VI identifies the factors that the loosely aligned voting bloc finds most relevant to its preemption decisions, exposes weak points in the bloc where fracture is likely, and discusses how recent appointments will affect voting alignments.

II. DEFINING FEDERAL PREEMPTION

Congress's power of preemption, rooted in the Supremacy Clause of the Constitution,(fn3) permits federal law to trump state law where it is undesirable or impossible for two independent legal regimes to coexist. The Supreme Court has recognized two primary categories of preemption: express and implied.(fn4) Express preemption occurs where a federal statute expressly withdraws from the states regulatory power over a certain area of law.(fn5) Express preemption doctrine, therefore, involves the difficult but familiar judicial task of determining the intended preemptive reach of statutory language.(fn6) Implied preemption is subdivided into two types: field preemption and conflict preemp-tion.(fn7) Field preemption occurs where a federal regulatory regime is so pervasive as to imply that Congress intended to occupy an entire field of the law, leaving no room for states to supplement that federal regu-lation.(fn8) Similarly, but on a smaller scale, conflict preemption occurs

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where, though Congress has demonstrated no intent to occupy an entire field of law, federal law conflicts with a particular state law.(fn9) This conflict may take either of two forms. First, state law will be preempted "where it is impossible for a private party to comply with both state and federal law."(fn10) Second, state law will also be preempted where, though it is not literally impossible to comply with both state and federal law, state law "stands as an obstacle to the accomplishment and execution of the full purposes and objectives of Congress."(fn11)This taxonomy of preemption yields four fundamental varieties: express preemption, field preemption, impossibility preemption, and obstacle preemption. This Article will focus primarily on conflict preemption (both impossibility and obstacle preemption), but the others will receive passing attention where relevant to the conflict preemption inquiry.

III. JUDICIAL ALIGNMENT ON PREEMPTION

As many studies have shown, political ideology is an important determinant of Supreme Court decisions. Justices' votes can be explained, at least in part, by their political preferences.(fn12) In a typical federalism case, for instance, conservative justices tend to favor states' rights, while more liberal justices tend to favor a strong central gov-ernment.(fn13) In the preemption context, however, political ideology often pulls in opposite directions.(fn14) A decision against preemption in favor of states' rights, typically considered conservative, may have a liberal outcome, and vice versa. "[A] 'liberal' vote for the federal gov-

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ernment (and against the states) is also a vote for 'big business' (and against pro-regulatory constituencies that want states to regulate above the federal baseline)."(fn15) Justices' political preferences stand in tension, making for "odd coalitions that appear to defy conventional left/right, liberal/conservative analysis."(fn16)

In response to this tension, says conventional wisdom, the conservative and liberal wings of the Court flip from their positions on federalism.(fn17) Conservatives can be expected to vote in favor of preemption and liberals to vote against it, with the odd result that the liberals find themselves promoting states' rights while conservatives counter with a plea for a robust national regulatory system.(fn18) Empirical evidence supports this conventional wisdom. Attitudinal models of judicial decision making rank the Rehnquist Court from most liberal to most conservative as follows: Justice Stevens anchors the liberal wing, followed by Justices Ginsburg, Breyer, Souter, O'Connor, Kennedy, Rehnquist, Scalia, and Thomas on the conservative pole.(fn19) The Rehnquist Court's voting record on preemption, with the exception of Justice Thomas, closely matches this array: Justice Stevens, on the liberal end, votes in favor of...