Cato Supreme Court Review: 2007-2008

By Robert A. Levy; Ilya Shapiro et al. | Go to book overview

Federal Preemption at the
Supreme Court

Daniel E. Troy and Rebecca K. Wood*


Introduction

It has been a striking time for federal preemption at the Supreme Court. This past term, the Court heard six preemption cases, deciding four in favor of federal preemption by large margins, one against preemption, and coming to a draw in the sixth case in which Chief Justice John Roberts did not participate.1 In the coming term, the Court is poised to hear two additional significant preemption cases.2

*Daniel E. Troy is senior vice president and general counsel of GlaxoSmithKline.
Until recently he was a partner in the Life Sciences and Appellate practices at Sidley
Austin LLP, and before that was chief counsel of the Food and Drug Administration.
Rebecca K. Wood is a partner in the Appellate and Products Liability practices at
Sidley Austin LLP. The authors have represented the party or amicus curiae in each
of the three cases involving federal preemption in the prescription drug and medical
device contexts at the Supreme Court in the last year: Warner-Lambert v. Kent, Riegel
v. Medtronic, Inc.
, and Wyeth v. Levine. Sidley Austin LLP also filed amicus briefs in
two other cases discussed in this article, Exxon Shipping Co. v. Baker, and Rowe v. N.H.
Motor Trans. Ass'n
. The authors would like to thank Carter G. Phillips and Eamon
P. Joyce, their colleagues at Sidley Austin LLP, and Will Adams, a 2008 summer
associate at Sidley Austin LLP and law student at Harvard Law School, for contribut-
ing to this article. The views expressed here are solely their own. A version of this
article also will appear in Engage: The Journal of the Federalist Society's Practice Groups.

1 See Table, infra. The pro-preemption decisions are: Chamber of Commerce v.
Brown, 554 U.S., 128 S. Ct. 2408 (2008); Preston v. Ferrer, 552 U.S., 128
S. Ct. 978 (2008); Riegel v. Medtronic, Inc., 552 U.S. ———, 128 S. Ct. 999 (2008); and
Rowe v. N.H. Motor Trans. Ass'n, 552 U.S. ———, 128 S. Ct. 989 (2008). The Court
rejected preemption (in a somewhat different sense) in Exxon Shipping Co. v. Baker,
554 U.S. ———, 128 S. Ct. 2605 (2008), see note 68, infra, and divided 4–4 in Warner-
Lambert v. Kent, 552 U.S. ———, 128 S. Ct. 1168 (2008) (per curiam), with the Chief
Justice recusing. See note 72, infra.

2 See Wyeth v. Levine, No. 06–1249 (filed Mar. 12, 2007) (addressing preemption
of state-law challenges to prescription drug warnings approved by the FDA) (to be
argued Nov. 3,2008); Altria Group v.Good, No. 07–562 (filed Oct. 26, 2007) (addressing
preemption of state-law challenges to statements in cigarette advertising authorized
by the Federal Trade Commission) (to be argued Oct. 6, 2008).

-257-

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