April 2004
Preemption in the Rehnquist Court
At an April 2 AEI conference, Michael Greve discussed his ongoing empirical analysis of preemption decisions in the Rehnquist Court. Daniel Schweitzer of the National Association of Attorneys General and Thomas Merrill of Columbia Law School responded to his findings and offered their own thoughts about trends in preemption jurisprudence.
Michael S. Greve
AEI
The Supreme Court's view of its role in federal preemption cases is typically characterized in one of three ways: as a guardian of federal supremacy, a neutral body devoted to error correction, and a protector of federalism. The first should yield a high number of reviews for state court cases and for any case in which the lower court ruled against preemption; the second, a higher reversal rate; the third, an increased level of hostility to preemption over time. As an alternative, we propose a theory of signaling based on party and amicus briefs.
Over the entire time period (1986-2002), the Rehnquist Court granted certiorari to forty cases from state courts and sixty-two cases from lower federal courts. However, of those forty state cases, twenty-eight involved a state court decision against preemption (possibly supporting the federal supremacy view). The split between state and federal was nearly even before 1993, but from 1994 to 2002 (which we refer to as the Late Rehnquist Court), review shifted dramatically to federal court cases, which could be read as support for the federalism theory. But along with the certiorari grant shift, there was a tremendous shift in the rate of reversal-from a nearly even split to thirty-one reversals and ten affirmances in the Late Rehnquist Court. This points to the error-correction theory, but the forces driving the change remain unclear.
Perhaps a better way to understand the behavior of the Rehnquist Court in preemption cases is to posit that signals matter: maybe the justices rely on cues to orient themselves and reach their conclusions. Our data suggests three significant patterns: 1) the existence of a state as a party (particularly as a petitioner) greatly decreases the chance of a pro-preemption outcome; 2) state amicus briefs in state party cases have a similar effect (but do little or nothing in private party cases); and 3) the Solicitor General's position is more significant if he argues against federal preemption, or if he is a Republican.
Daniel Schweitzer
National Association of Attorneys General
A state attorney general (AG) will file an amicus brief for one of five major reasons: 1) the office has an institutional interest in the case; 2) the AG has litigated the issue before; 3) the AG has an interest in the issue at stake; 4) a client agency encourages the AG's involvement; and 5) the AG has resources to invest. Joining a brief, of course, is much easier than writing one, and states have become increasingly willing to sign sister states' briefs. While recent trends suggest that states will act as amici in any preemption case that is not completely irrelevant, states will withhold support for briefs that are poorly written or (at least in some states) opposed by the governor's office.
Mr. Greve's paper raises a question about state amicus filings-specifically, his data shows that states file amicus briefs more often for the petitioner than for the respondent. During my tenure at the National Association of Attorneys General, the reverse has been true (but only barely). It is important to recognize that when the Supreme Court grants certiorari, that is a loss for the respondent, potentially reflecting poor legal counsel. There may be real benefit to having a state step in. On the other hand, it is possible that Mr. Greve's numbers are driven in part by earlier state amicus participation at the certiorari stage. Having filed before the grant, states may be more likely to file in the actual review.
In terms of the efficacy of state amicus briefs, it certainly makes sense that the briefs would send more powerful messages if they were less common. But they are still useful in at least two situations. State briefs can supplement private briefs that are badly written, and they can provide detailed information in the style of "Brandeis briefs," providing the Court with real world examples of the consequences of their rulings.
Thomas W. Merrill
Columbia Law School
Mr. Greve should adopt a tighter theory of judicial motivation; he tends to mix ideological, formalist, and strategic motivations. One of the most interesting puzzles of the Rehnquist Court is why the "federalist five" form a reliable bloc in mainstream federalism cases (those involving the Commerce Clause, or sovereign immunity) but not in preemption decisions. Preemption cases, of course, have a tremendous impact on the contours of federalism. I would suggest that the justices are quite strategic when it comes to the mainstream federalism context, but in preemption cases we see what the court would look like without strategic behavior. It is, frankly, a mess.
For substantive, consistent rules that might guide justices in preemption cases, take a look at environmental statutes and their preemption and savings clauses. Congress seems to think that in a circumstance where an object is likely be regulated by one state, preemption is not appropriate. It will pass some kind of savings clause. Alternatively, if something is likely to be regulated by many states-with lots of inconsistency--Congress will pass an express preemption clause. This model might not be a bad place to start.
I have three empirical observations about Mr. Greve's findings: State participation may appear significant because it acts as a proxy for the case being statutory instead of tort based. The Court may be more interested in whether a case is tort or not than in who is litigating. Second, the affirmance rate in preemption cases may be declining because the justices are becoming more efficient. The longer they serve together, the better they get at anticipating each other's arguments, and they may avoid cases that they expect to affirm. Finally, as to why so many states are filing amicus briefs when doing so does not seem to affect outcomes, an arms race may be a useful analogy. If amicus briefs are only filed on one side, that might have a significant effect on the outcome in favor of the side with amicus support. It is also worth noting that this phenomenon may be driven by lawyers who would like to do the glamorous work of Supreme Court litigating. Brief filing may not be as exciting as direct involvement, but it is not a bad fallback position.
AEI research assistant Kate Rick prepared this summary.
