When the Supreme Court opens its term next month, the absence of retired Justice John Paul Stevens will be felt in many ways – particularly when the Court takes up several cases dealing with the issue of federal preemption of state law claims and regulations, experts say.
“Justice Stevens has been, up to this point, the voice against preemption,” said Eric G. Lasker, a partner in the Washington office of Hollingsworth LLP, speaking at a Supreme Court media briefing yesterday hosted by the Washington Legal Foundation.
Michael A.Carvin, a partner in the Washington office of Jones Day, echoed that sentiment yesterday at a Supreme Court discussion panel hosted by the American Constitution Society for Law and Policy.
Justice Stevens has been the most reliable anti-preemption vote,” Carvin said.
The Court’s newest jurist, Justice Elena Kagan, has indicated that she will recuse from two major preemption cases being taken up this fall. In Williamson v. Mazda Motor of America, the Court will consider whether a tort claim against a manufacturer for choosing not to install a combination lap/shoulder belt in a vehicle’s middle backseat is impliedly preempted by a federal motor vehicle regulation. In Bruesewitz v. Wyeth, the Court will take up the question of whether the Vaccine Act expressly preempts all vaccine design defect claims, regardless of whether the vaccine’s side effects were unavoidable. That matter involves a plaintiff who alleged that she suffered seizure disorders as a result of taking a polio vaccine as a child. (More on the potential effect of Kagan’s recusals in those cases can be found here from Lawyers USA)
So which justice or justices might emerge as the new voice against preemption in Stevens absence?
On the issue of express preemption, experts say Justice Ruth Bader Ginsburg may take the anti-preemption baton, given her past opinions.
But on the issue of implied preemption, states and plaintiff’s attorneys may have an unlikely ally: Justice Clarence Thomas.
“Justice Thomas has been consistent in his opposition to the idea of implied preemption,” Lasker said.
Thomas was part of the majority in the landmark implied preemption case Wyeth v. Levine holding that state law drug claims are not automatically preempted by federal regulation. But Thomas also wrote a separate concurrence in that case because, as he wrote, “I cannot join the majority’s implicit endorsement of far-reaching implied preemption doctrines [because] implied preemption doctrines that wander far from the statutory text are inconsistent with the Constitution.”