Against Freewheeling, Extratextual Obstacle Preemption: Is Justice Clarence Thomas the Lone Principled Federalist?
Federal preemption of state tort law unequivocally alters the al-location of authority between the states and the national government. The Supreme Court’s preemption jurisprudence creates a federalism puzzle: Justices who have been ardent defenders of state autonomy in Commerce Clause, Tenth Amendment, and Eleventh Amendment immunity cases are transformed into aggressive purveyors of preemption, trampling upon state regulatory autonomy.
Notwithstanding alternative explanations of the Court’s preemption jurisprudence, the one with the greatest staying power is that which attributes everything to ideology and politics. Most prominently, Richard Fallon has argued that “[b]ecause federal preemption eliminates state regulatory burdens, preemption rulings have a tendency—welcome to substantive conservatives—to minimize the regulatory requirements to which businesses are subject.” The conservative Justices, in other words, permit their respective views of underlying substantive disputes to guide their respective conclusions about proper allocation of decisional authority. Edward Rubin and Malcolm Feeley—among others—have described this charge of opportunism by asserting that “claims of federalism are often nothing more than strategies to advance substantive positions.” Or, as Jonathan Macey has cynically asserted, “[c]onservatives and liberals alike extol the virtues of state autonomy whenever deference to the states happens to serve their political needs at a particular moment.”
