Justice Scalia's Two-Front War

[marmar]

from The American Prospect:



Justice Scalia's Two-Front War

Despite lip service to "judicial restraint" Scalia has been waging a war against consumer product regulation as well as protections for workers, at both the state and federal level.

Simon Lazarus and Harper Jean Tobin | March 6, 2008 | web only



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: "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. .......(more)

The complete piece is at: http://www.prospect.org/cs/articles?article=justice_scalias_two_front_war