I’ve checked outside my window twice, and I saw no pigs flying by. And I’ve not heard any reports that hell froze over. So imagine my complete surprise when I realized that I totally agreed with Justice Clarence Thomas today in his concurring opinion in Wyeth v. Levine, which rejected Big Pharma’s argument that drug companies could not be sued under state law based on allegations that a FDA-approved drug warning was inadequate to prevent a foreseeable harm.
Without going into an extended analysis of Justice Thomas’s concurring opinion, the crux of it was a full-throated rejection of implied preemption. He summed his position as follows:
I write separately...because I cannot join themajority’s implicit endorsement of far-reaching impliedpre-emption doctrines. In particular, I have become increasingly skeptical of this Court’s "purposes and objectives" pre-emption jurisprudence. Under this approach,the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressionalpurposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wanderfar from the statutory text are inconsistent with the Constitution, I concur only in the judgment.
Here, at least, is a conservative Justice who is consistent when it comes to federalism. While Scalia et al. champion federalism when it suit a given objective, and hew to principle of strict construction when interpreting federal legislation, these so-called conservative justice have been more than happy to read presumed preemptive intent into legislation when the end result is to deny consumers the right to bring a lawsuit based on a defective product. So, let’s give credit where credit is due: Justice Thomas, more than any of the other Justices, got the real question of preemption analysis exactly right. Federal Legislation should not be found to preempt state law unless the text of the statute expressly and clearly states that this was the Legislature’s intent. Period.