Michael C. Dorf

Do the Supreme Court's Current Justices Hold Sincere Views About States' Rights? A Failure-to-Warn Case Reveals an Apparent Inconsistency

By MICHAEL C. DORF
Monday, March 9, 2009

Last week, in Wyeth v. Levine, the U.S. Supreme Court held that approval by the federal Food and Drug Administration (FDA) of the warnings on the packaging of the anti-nausea drug Phenergen did not invalidate a Vermont jury verdict. The jury awarded damages to Diana Levine for the loss of her arm, on the ground that the FDA-approved warnings were not adequate.

Wyeth was a legitimately difficult case, in which plausible arguments could be, and were, made for either result. On one hand, as Justice Alito, joined by Chief Justice Roberts and Justice Scalia, argued in dissent, the FDA-approved label did in fact contain a bold-faced warning about the very injury that befell Levine: It said that Phenergen is safe when injected into a muscle or a vein, but if it accidentally enters an artery it can cause gangrene. Therefore, allowing tort liability for the drug manufacturer's failure to warn of the gangrene risk (and the resulting risk of amputation) in more specific terms, does seem to undercut the whole point of FDA approval of warnings.

On the other hand, as the majority opinion authored by Justice Stevens emphasized, federal regulation of drugs and their labels has long been understood to supplement, rather than supplant, state tort suits. The Food, Drug, and Cosmetics Act does not contain any language expressly forbidding state tort suits that have the incidental effect of requiring stronger warnings than those approved by the FDA. In fact, in 1976, Congress did add such language expressly "preempting" state tort suits, but only with respect to FDA approval of medical devices. Congress' omission of any parallel preemption provision for approved drugs and their labels, the majority argued, was telling.

The merits of the Wyeth decision will be hotly debated for some time, and are well-summarized in two preview columns on this site by Anthony Sebok and Benjamin Zipursky (here and here). In this column, I shall call attention to an oddity of the Supreme Court's preemption jurisprudence that Wyeth underscores: The Justices who tend to be most sympathetic to states' rights claims when the issue is the scope of congressional power tend also to favor a broad view of federal preemption, even though preemption displaces state law with federal law; conversely, the Justices who take a broad view of congressional power tend to take a narrow view of preemption.

Below, I shall explore the possibility that the Court's conservatives and liberals alike only pay lip service to considerations of federalism, caring more about ensuring the outcomes that fit their ideological predispositions.

States' Rights in Tenth Amendment Cases and in Preemption Cases

The Constitution creates a federal government of limited powers. As the Tenth Amendment affirms, powers that are not granted to the federal government are reserved to the States or the People. Nonetheless, the actual powers that are granted to the federal government have often been interpreted broadly. In some periods of American history, the Supreme Court has sought to rein in Congress's assertions of federal power, but by the middle of the Twentieth Century, it appeared that these battles were over. From roughly the mid-1930s until roughly the early 1990s, the Supreme Court upheld nearly every Act of Congress that was challenged as exceeding the federal government's constitutional authority.

Then, under the leadership of the late Chief Justice Rehnquist, the Court re-asserted some limits on federal power. In case after case, the five most conservative Justices of the Rehnquist Court—Justices O'Connor, Scalia, Kennedy, Thomas, and the late Chief himself—found that Congress had gone too far. Meanwhile, the most liberal Justices during that period—Stevens, Souter, Ginsburg, and Breyer—consistently dissented.

Yet even as the conservatives favored, and the liberals opposed, states' rights in congressional power cases, the pattern in preemption cases was quite different. In preemption cases, it was the liberals who tended to favor state interests—by finding no preemption—while the conservatives tended to find in favor of broad federal power having been exercised to preempt state action.

Wyeth itself is a good example: The most liberal Justices all were in the majority, finding no preemption, while the three dissenters, voting for preemption, are solidly conservative. (Justices Kennedy and Thomas are outliers whose votes I shall explain shortly.)

Do Bottom-Line Results Explain the Voting Pattern in Federalism Cases?

Faced with the odd reversal in orientation reflected by the Justices' votes in congressional power cases and preemption cases, respectively, it is tempting to look for a hidden variable. The most obvious explanation is that the Justices are simply "result-oriented"—that is, conservative Justices make arguments favoring state interests when that will lead to conservative results and they make arguments favoring federal interests when that will lead to conservative results, while meanwhile, liberals do the opposite in pursuit of their own preferred policy outcomes.

The result-orientation hypothesis fits the pattern we see pretty well. These days, conservatives have an anti-regulatory bias, while liberals have a pro-regulatory bias. In a congressional power case, the consequence of finding no federal power is typically no regulation, or at least less regulation than there would be if the law were upheld. Thus, other things being equal, we would expect conservatives to be inclined against finding federal power and liberals inclined in favor of finding federal power in these cases. In fact, that is exactly what occurs.

Meanwhile, in preemption cases, a finding in favor of preemption typically means no or less regulation, because federal preemption displaces state common law, statutory, and administrative regimes that would otherwise add to the regulatory burden that interstate firms must bear. Conservatives who regard our economy as beset by over-regulation would thus be inclined in favor of federal preemption, while liberals who see a greater need for regulation would be inclined against preemption. And indeed, this too describes what we generally see.

How Result-Oriented Are the Justices?

Still, it would be a crude over-simplification to say that the Justices simply vote for their policy preferences in federalism cases (or more generally). In Wyeth, for example, Justice Thomas—probably the most conservative member of the Court—joined the liberals in finding no federal preemption. In fact, he did not even join the majority opinion because he thought it was too sympathetic to the preemption claim. Justice Thomas, who has also staked out the Court's most state-protective view in congressional powers cases, was pretty clearly voting based on his jurisprudential views, not his regulatory policy views, in Wyeth.

Likewise, other Justices have voted contrary to what we might presume are their policy preferences in preemption cases. Justice Kennedy and Justice Breyer, for example, both voted against preemption in the Wyeth case, but they had both voted for preemption in a case whose meaning was the focus of intense disagreement in Wyeth—the 2000 case of Geier v. American Honda Motor Co. Justice Kennedy is the most liberal of the current Court's conservatives, while Justice Breyer is the most conservative of the current Court's liberals, so it is possible that their swings reflect subtle policy differences between automobile safety and drug safety, rather than legal differences as such. However, there is no compelling evidence for this proposition.

Moreover, most of the Justices have sometimes voted against their policy preferences in Congressional power cases. For example, in 2005, in Gonzales v. Raich,all of the liberals voted to uphold the application of a federal prohibition on marijuana, even in a state that had legalized medical marijuana. Meanwhile, the three dissenters—the late Chief Justice Rehnquist and Justices O'Connor and Thomas—are hardly supporters of NORML. Only Justices Scalia and Kennedy voted in line with what we might presume to be their policy preferences—rather than with their broader views about federalism—in the Raich case, and Justice Scalia wrote a separate concurrence in the judgment that did a creditable job of reconciling that vote with the balance of the Court's federalism jurisprudence.

Nor is it impossible to reconcile a narrow view of states' rights under the Tenth Amendment with a narrow view of federal preemption. The more liberal Justices who have dissented from the rulings restricting federal power take the view that Congress, rather than the Court, is best positioned to make judgments about the right mix of federal and state regulatory authority. Accordingly, when it comes to preemption, they are reluctant to find an intent to displace state law unless Congress or a federal agency has made that intent reasonably clear. Seen in this light, the presumption against preemption that Justice Stevens applied in Wyeth (and that Justice Alito thought inappropriate) can be understood as the price Justice Stevens would have Congress pay for the deference he would afford it in matters of congressional power.

Conversely, we can account for Justice Scalia's relative eagerness to find federal preemption by looking to his views about executive agencies. For him, Wyeth was mainly a case about the need for the courts to defer to the FDA's judgment that preemption was needed. We might extend this defense against the charge of result-orientation to Chief Justice Roberts and Justice Alito as well, although neither has been a Justice for long enough to have voted in many of the key cases.

The Unconscious Role Played by Policy Preferences

Thus, the seeming inconsistency we see in the Justices' federalism and preemption votes does not constitute incontrovertible proof that they are playing fast and loose with the law, by substituting views about tort suits and drug regulation for federalism principles derived from the Constitution and federal statutes. For any given case, we can tell a story of principled disagreement.

Nonetheless, the overall picture remains suspicious, especially when viewed in the context of a very large body of political science research showing that Supreme Court Justices tend to vote in accordance with their ideological leanings as gauged on a left/right scale. Indeed, the strong form of this so-called "attitudinal" model posits that legal arguments play no real role at all in the decision-making processes of the Supreme Court.

To be sure, legal scholars (including yours truly) have criticized some of the political science literature for its assumptions about what constitutes a "legal" rather than an "attitudinal" explanation for a Justice's vote. Still, there is no gainsaying the broader conclusion the political scientists draw: If you want to know how the Supreme Court will decide any given case, you would do best to start by noting each Justice's likely attitude towards the possible outcomes.

That is more or less the point that President Obama made during the 2008 campaign, when he said that he thought hard cases were decided on the basis of a judge's values. Conservative critics have either misunderstood or deliberately misconstrued Obama's statement to mean that he believes judges should disregard the law and decide cases based on their conscience. His real point, however, was that even as they strive to decide hard cases according to the law, judges' sympathies and values invariably influence them, even if unconsciously.

To acknowledge as much is not to deny that the law places real constraints on judges or to advocate lawlessness. It is simply to accept the reality that, in a close case, liberals will want to read federal law to permit holding a drug maker accountable to a patient who has lost an arm, and conservatives will want to read federal law to shield from liability a drug maker that has complied with FDA rules.

There are exceptions, of course. For example, Justice Thomas is so strongly committed to limiting federal preemption that, unlike his colleagues, he probably regarded Wyeth as an easy case—one that therefore afforded no opportunity for his sympathies to play even an unconscious role.

Such exceptions do not, however, undermine the overall pattern. As Damon Runyon remarked: "The race is not always to the swift, nor the battle to the strong, but that's the way to bet."



Michael C. Dorf, a FindLaw columnist is the Robert S. Stevens Professor of Law at Cornell University. He is the author of No Litmus Test: Law Versus Politics in the Twenty-First Century and he blogs at michaeldorf.org.

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