The Roberts Court’s Antipreemption Shift: How the Supreme Court is Rejecting Corporate-Friendly Preemption Claims

The Roberts Court is often derided as a pro-corporation Court. Countless stories highlight the Chamber of Commerce’s high success rate before the Supreme Court. Yet the reality is more nuanced: the Court frequently rules in ways corporations dislike. A prime example is its approach to preemption—a legal doctrine where federal law overrides state laws, often shielding corporations from liability in state tort lawsuits.

Corporate defendants typically favor broad preemption to avoid state-level liability, while plaintiffs push for narrow interpretations to preserve their claims. On the Supreme Court, however, this divide does not follow ideological lines. Justice Clarence Thomas, a federalist, has long opposed broad preemption. Justice Neil Gorsuch appears to share this skepticism. Justices Brett Kavanaugh and, to a lesser extent, Samuel Alito, are the most likely to support expansive preemption. Chief Justice John Roberts and Justice Amy Coney Barrett often hold the deciding votes.

Unlike in other conservative-leaning cases, there is no automatic majority for preemption. In fact, counting to five may be difficult. The Roberts Court may well be an Antipreemption Court.

Three Key Preemption Cases This Term

1. Hencely v. Fluor Corp (2024)

In Hencely v. Fluor Corp, the Court reversed the Fourth Circuit and ruled that federal law did not preempt a state-law tort claim. Justice Thomas authored the majority opinion, joined by Justices Sonia Sotomayor, Elena Kagan, Gorsuch, Barrett, and Ketanji Brown Jackson. Justice Alito dissented, with Chief Justice Roberts and Justice Kavanaugh concurring.

This alignment reflected the justices’ broader views on preemption. As one commentator noted at the time, the votes aligned with each justice’s general stance on the issue.

2. Montgomery v. Caribe Transport II, LLC (2024)

The Court unanimously ruled in Montgomery v. Caribe Transport II, LLC that federal law did not preempt a state-law tort claim against transportation brokers. Justice Barrett penned a concise majority opinion, dismissing statutory anomalies raised by the government with a sharp observation:

"The text of subsection (c)(2)(A) controls. Better to live with the mystery than to rewrite the statute."

Justice Kavanaugh filed a concurrence, joined by Justice Alito, arguing that the preemption analysis was more complex than the majority suggested. He concluded that Congress and the President could address any concerns—a suggestion that left room for legislative or executive action. While corporate interests and their allies warned of dire consequences from state tort liability, the Court’s unanimous decision left no room for doubt. Even Paul Clement, a renowned Supreme Court advocate who argued the case, failed to secure a single vote.

3. Monsanto Company v. Durnell (2024)

The third major preemption case this term, Monsanto Company v. Durnell, was also argued by Paul Clement. Given the outcomes in Hencely and Montgomery, Clement’s prospects appeared dim. Analysts predicted a 5-4 or even 6-3 ruling against Monsanto, with the Court declining to stretch statutory interpretation to favor corporate preemption.

For deeper analysis on Monsanto Company v. Durnell, see prior commentary here and here.

Why the Roberts Court is Rejecting Broad Preemption

The Court’s reluctance to embrace broad preemption reflects a broader judicial philosophy. Even conservative justices are hesitant to engage in creative statutory interpretations that would shield corporations from state liability. The justices appear more inclined to defer to the text of federal statutes rather than expand preemption to favor corporate defendants.

This trend suggests that corporations seeking broad preemption may face an uphill battle in the Roberts Court. The Court’s skepticism of expansive preemption could reshape litigation strategies for businesses and plaintiffs alike.