The Solicitor General’s view prevailed in both of the preemption decisions issued last week by the Supreme Court. In both cases, preemption was utilized as a defense against state law claims, and the Court reached the merits without any consideration of a cause of action. Neither majority decision even mentioned the presumption against preemption, though Sotomayor referred to it in a footnote of her dissent in one of the cases, raising the question of whether the presumption will continue to be viable after the retirement of its champion, Justice Stevens.
In a case involving the National Childhood Vaccine Act, the decision was the men against the women (though Kagan was recused), with Scalia writing the opinion holding that state law claims were preempted by the text and structure of the statute. Scalia stated that as a result, “even those of us who believe legislative history is a legitimate tool of statutory interpretation have no need to resort to it.” He then criticized the dissent’s recitation of legislative history. Breyer concurred to emphasize his deference to the federal government and his willingness to consider legislative history and statutory purpose. Sotomayor and Ginsburg dissented, reading the text and legislative history to compel a contrary result. Brueswitz v. Wyeth, 2011 WL 588789 (Feb. 22, 2011).
The case issued the next day involved the preemptive effect of a federal regulation: the Federal Motor Vehicle Standard Safety. Breyer wrote the Court’s opinion holding that preemption was “not a significant objective of the federal regulation.” He again emphasized the importance of the views of the federal government. Kagan was recused. Sotomayor joined the opinion but also concurred, highlighting that “the mere fact that an agency regulation allows manufacturers a choice between options is insufficient to justify implied pre-emption.” Thomas concurred in the judgment, explaining that he rejects “purposes and objectives preemption as inconsistent with the Constitution.” Williamson v. Mazda Motor of America, Inc., 2011 WL 611628 (Feb. 23, 2011).