Justice Scalia's Two-Front War

Modern American conservatives are widely perceived as reflexively pro-states' rights. But as long ago as 1982, movement icon Antonin Scalia, then a University of Chicago law professor, warned members of the fledgling Federalist Society to shed such myopic nostalgia. Conservatives' underlying goal, he said, is "market freedom." While that goal surely justifies opposition to federal economic intervention, he observed, it should also entail actively exploiting federal authority to stop objectionable meddling by state governments. He counseled conservatives to "fight a two-front war" against overzealous regulation at the state no less than the federal levels: "[W]ith all these targets out there," he noted, there must be "at least a few targets to be shot at."

These past two weeks, Justice Scalia and his fellow conservatives on the Supreme Court could be seen merrily shooting at regulatory targets on both the federal and state "fronts." With respect to the latter, they were focused on a target prophetically singled out in his Federalist Society speech: state laws holding manufacturers liable for "design defects," which "subject interstate businesses to greatly increased damages." Scalia's 1982 agenda contemplated federal legislation to curb state regulatory excess, in keeping with the traditional conservative nostrum that major policy decisions should be made by the people's elected representatives, not unaccountable "activist" judges. But after a quarter century of service on the federal bench, "judicial restraint" has been dropped from Scalia's playbook. He and his allies appear on course to reverse generations of precedent and, with scant or no authorization from Congress, shut down all 50 states' tort law regimes insofar as they apply to medical devices, drugs, or other products regulated by the federal Food and Drug Administration.

Scalia scored his most direct bull's-eye on Wednesday, Feb. 20, when he wrote the Court's opinion in a case, Riegel v. Medtronic, which forecloses any legal remedies for individuals who are injured by defectively designed medical devices, if those devices received premarket approval from the FDA. The 1976 federal law that created the approval process expressly barred states from imposing "requirements" on medical device manufacturers "different from or in addition to" those prescribed by the FDA. The Court held that this preclusion of inconsistent state regulation -- what the Court calls "pre-emption" -- applied not only to state statutes and regulations -- which the 1976 Congress plainly intended to pre-empt -- but also to common-law tort suits against FDA-approved devices, about which the law was silent. In committee reports, hearings, and debate about the bill, its supporters had repeatedly made clear that Congress considered the new federal prescreening law a supplement to traditional state common-law remedies -- not a replacement.

The two principal sponsors of the law, Sen. Ted Kennedy and Rep. Henry Waxman, emphasized this point in a brief to the Court. Nevertheless, not only Scalia but seven of his colleagues, including "liberal" Justices Stevens, Souter, and Breyer, found Kennedy's and Waxman's plea unpersuasive; they concluded that, whatever Congress subjectively "intended," it wrote the term "requirements" into the statute, and it was illogical to conclude that that covered only certain types of legal requirements and not others. In what is fast becoming a trend in pre-emption cases, one of those justices, Stevens, wrote an opinion reluctantly concurring in the decision in light of the Court's accumulating precedents, even though the result was not what Congress actually intended.

Given Congress' less-than-punctilious drafting, the outcome of Riegel v. Medtronic was not surprising, in and of itself. But Scalia's aggressive opinion is truly startling and portentous. Until now, even when the Court has decided to pre-empt -- i.e., invalidate -- state laws in particular cases, it has at least paid lip service to affording state laws a rebuttable presumption against preemption, particularly regarding traditional areas of state and local concern like the common law of negligence or "torts." In Scalia's Riegel opinion, this presumption has been replaced by open hostility to state common-law doctrines empowering juries to award damages, which Scalia calls "less deserving of protection" than statutes or regulations.

Also absent from Riegel is the Court's usual boilerplate nod to congressional intent as the "touchstone" of pre-emption analysis. Scalia fairly sneered that it is "not our job to speculate" on Congress' purpose, despite the historical fact that, in passing the 1976 medical-device law, Congress plainly sought to strengthen incentives for safe manufacturing practices. Eliminating the strongest such incentive – state tort liability – could hardly have been a result Congress silently intended. The bottom line is that Scalia and his fellow conservatives, sure of their control of the Court, have in effect proclaimed their freedom to ignore altogether the goals that drove Congress to enact laws, and to choose interpretations that contradict or undermine those goals.

These harbingers of a tectonic shift away from judicial deference to Congress or the states were reinforced five days after the Riegel decision, on Monday, Feb. 25, when the justices heard oral argument in a negligence suit against the manufacturer of a diabetes drug called Rezulin, Warner-Lambert v. Kent. Rezulin had originally been approved but subsequently was forced off the market by the FDA, after patients experienced serious adverse liver-related effects. The Court's animated questioning revealed no hint of traditional judicial deference to Congress or the states. The only issue that engaged the justices was a stark question of public policy -- whether it makes more sense to authorize state courts and juries to resolve negligence claims for damages or to vest exclusive authority in the FDA's regime for regulating drugs. Scalia again derided the wisdom of juries, and Justice Kennedy worried that depositions and document requests for lawsuits would be too burdensome on FDA officials. They and some of their colleagues seem quite prepared to make these choices without any realistic regard for the view of the New Deal Congress that first established the FDA's drug-regulatory regime in 1938.

As it happened, Chief Justice Roberts did not participate in Warner-Lambert for ethical reasons, which left the Court divided 4-4. The effect of this tie vote is to allow the individual lawsuit at issue in that case to proceed, but without setting a precedent affecting future cases. In view of Roberts’ skepticism during the Riegel oral argument about suits against FDA-approved pharmaceutical products, there appears to be a majority of Justices prepared to eliminate altogether what the plaintiffs' lawyer, Alison Zieve, called "the traditional tort system as it exists in most every state" for compensating victims of negligently manufactured or marketed prescription drugs.

The justices' readiness to contemplate wiping out state tort-law protections seems unaffected by the fact that tort remedies have remained in place during the entire 70 years since the governing federal statute was enacted. Nor does it appear of interest to Justice Scalia and his allies that the 1938 law, unlike the 1976 medical-device pre-market screening law at issue in the Riegel case, contained no provision requiring pre-emption of anything. Warner-Lambert thus sets a troubling tone for next term, when the Court will hear a case that will determine whether, in fact, the entire tort system is pre-empted when it comes to prescription drugs. No wonder that a Web site by lawyers who defend product liability suits against pharmaceutical companies has already speculated, only half in jest, that this entire line of work will soon disappear.

While Scalia and company show increasing fervor for reading federal laws as broadly as possible when the result is pre-empting state product liability at the behest of corporate defendants, they employ a decidedly different set of interpretive principles when interpreting federal laws that provide redress for workers. As noted in "Repealing the 20th Century," in the December 2007 issue of The American Prospect, this judicial doublethink has made a mockery of the law governing workers' health and pension plans, eliminating state remedies for a host of plan misconduct with broad-ranging preemption, and simultaneously whittling federal remedies down to nearly nothing (a situation basically unchanged by a modest, though encouraging pension decision this term). In two oral arguments last week -- Gomez-Perez v. Potter and CBOCS West v. Humphries -- these justices showed equal enthusiasm for similarly cramped interpretations of the nation's workplace-discrimination laws. Even the Bush administration's lawyers couldn't keep up with demands by the justices to ignore well-settled precedents.

In both of these cases, workers sued because their employers had retaliated against them for complaining that they were targets of age discrimination. Although some of the nation's anti-discrimination laws expressly include the word "retaliation" and some do not, the courts have long treated them all as prohibiting retribution against workers who complain or blow the whistle on discrimination. In 2005, the high court affirmed in Jackson v. Birmingham Board of Education that the concept of discrimination includes retaliation, so that including it separately in statutes is unnecessary. Moreover, as Justice Breyer observed during the argument in one of last week's cases, these laws simply will not work if employees are not free to challenge discrimination. Even the Bush Justice Department, to its credit, has generally recognized the good sense of this view in its advocacy before the Court.

Nevertheless, the Court now seems poised to read retaliation protections for workers right out of federal civil-rights laws. Of the 2005 decision, authored by now-retired Justice O'Connor, Justice Scalia crowed that "it didn't make any sense then" and "it doesn't make any sense" now. By thus effectively licensing employers to repress challenges to discriminatory practices, the Court's conservatives will further the damage wrought by the already-notorious May 2007 decision in Ledbetter v. Goodyear Tire & Rubber, in which they barred all suits to redress discriminatory pay not filed within four months of the employer's discriminatory act.

Indeed, Justice Kennedy and Chief Justice Roberts joined Scalia in connecting the narrowing of retaliation safeguards to their more general campaign to close courthouse doors to individuals seeking to enforce their rights under federal laws. They suggested that redress for retaliation was barred because the statute in question lacks an explicit right to sue – even though such suits have been accepted by the Court for 40 years. "We inferred that cause of action in the bad old days," Scalia mocked, "when we were inferring causes of action all over the place." Lawyers on both sides of these cases, having assumed the existence of a well-settled right to sue, were visibly caught off guard by the conservative justices' stony disdain for those precedents and the essential role they have long played in making statutory guarantees of equal opportunity a workplace reality. When Roberts used this line of reasoning to question the validity of a 1969 decision on which the Court had heavily relied in its 2005 Jackson decision, Solicitor General Paul Clement protested: "It -- I mean, it's hard to say. I mean, you know, Jackson was just three terms ago, Mr. Chief Justice."

During William Rehnquist's years as Chief Justice, Scalia often expressed alienation from even what most observers considered the largely conservative thrust of that Court's jurisprudence. In one 1996 dissent he lashed out: "Day by day, case by case, [the Court] is busy designing a Constitution for a country I do not recognize." The arrogant bluster on display these past two weeks shows how confident he is that these "bad old days" are behind him. And with good reason. So far this term, Scalia has disagreed with only one out of nearly 20 decisions issued by the Court -- a distinction only he and Chief Justice Roberts can claim. He has stayed the course and, finally, his two-front war appears to be going well.

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