Like we did with Justices Gorsuch and Kavanaugh, when they were first nominated, we took a look at Judge Amy Coney Barrett's record on preemption. There wasn't much. She's authored exactly one opinion that discussed preemption, and that involved "complete" preemption under the Labor Management Relations Act. Her opinion in Boogaard v. National Hockey League, 891 F.3d 289 (7th Cir. 2018), affirmed dismissal of a personal injury suit (involving an overdose of illegal drugs) on this basis:
The district court did get it right. The doctrine of complete preemption confers exclusive federal jurisdiction in certain instances where Congress intended the scope of a federal law to be so broad as to entirely replace any state-law claim. In this case, §301(a) of the Labor Management Relations Act displaces entirely any state cause of action for violation of a collective bargaining agreement. It does not matter that the lawsuit styles itself as something other than a breach-of-contract action. If the suit's claims are founded directly on rights created by collective-bargaining agreements or are substantially dependent on analysis of a collective-bargaining agreement, then §301 governs those claims.
Id. at 293-94 (citations and quotation marks omitted). Not bad, but not terribly relevant to the preemption defenses raised by our drug/device clients.
We then checked for any Barrett-authored dissents or concurrences in preemption cases. There are none.
Before going on the bench, Judge Barrett was a law school professor, so we also looked for law review articles she wrote that might have addressed preemption topics. Her article, Amy Coney Barrett, "Substantive Canons and Faithful Agency," 90 Bos. Univ. L.R. 109 (2010), is primarily about how "textualists" should use canons of judicial construction. In it Judge Barrett indicated opposition to one of our long-standing bugbears, the "presumption against preemption":
That is not to say that textualists accept all canons of this sort. For example, they reject the canons that . . . that express preemption provisions should be narrowly construed.
Id. at 121-22 (footnote omitted). The footnote cited: Altria Group, Inc. v. Good, 555 U.S. 70, 102 (2008) (Thomas, J., dissenting); and Cipollone v. Liggett Group, Inc., 505 U.S. 504, 544-48 (1992) (Scalia, J., dissenting), both of which "argu[ed] that the presumption against preemption has no place in the construction of an express preemption clause." Substantive Canons," 90 Bos. Univ. L.R. at 122, n.56. The article comes back to the purported presumption later, stating:
In the context of legislation that does not implicate fundamental rights or a suspect class, faithful enforcement of the Constitution requires a court to hew as closely as possible to the norm of faithful agency by enforcing the text unadulterated by judicial tweaking. . . .
The faithful agent must evaluate whether the same is true of other substantive canons. For example, the presumption against preemption is commonly justified as protecting the norm of federalism. Some have criticized it as illegitimate, however, on the ground that the Supremacy Clause is not biased against the exercise of federal power. If the Constitution is best understood as neutral or favorable to federal preemption of state law, then a canon enforcing a supposed constitutional value reflecting the opposite bias cannot legitimately qualify the obligation of faithful agency.
Id. at 180-81 (footnotes omitted). Since we have been arguing for the abolition of this presumption since the inception of the Blog, we can't find any fault with this discussion.
That's pretty much it. We found no substantive discussions of preemption in any of Judge Barrett's other scholarship.
However, given that personal jurisdiction is, along with preemption, our other hottest topic right now, we must also note ? this time with displeasure ? that Judge Barrett joined (but did not write) the seriously adverse, and just as poorly reasoned, class action/personal jurisdiction decision in Mussat v. IQVIA, Inc., 953 F.3d 441 (7th Cir. 2020), that we criticized here. On personal jurisdiction, we would much prefer Justice Ginsburg.
This article is presented for informational purposes only and is not intended to constitute legal advice.