by Elizabeth B. Wydra, Chief Counsel

Between yesterday’s election results and the church-state case argued first this morning, Williamson v. Mazda Motor, the preemption case in which the Supreme Court heard argument today, may not be a hot news item.  But it should be.  As the questions from the Justices reflected this morning, Williamson involves key questions of federalism, constitutional text and history, and whether citizen-juries in the states can hold corporations accountable for unsafe products (in this case, a lap-only seatbelt—as opposed to a shoulder/lap combo belt—that allegedly contributed to the death of Thanh Williamson after her minivan was struck by another vehicle).

The federal motor vehicle safety standard in effect at the time the Williamsons’ minivan was manufactured did not require car manufacturers to install lap-shoulder belts in the vehicle location in which Ms. Williamson was seated, but noted that lap-shoulder belts appeared to be safer and encouraged car manufacturers to develop appropriate ways of installing them.  This federal standard established only a regulatory floor, not a ceiling, and had a provision expressly preserving traditional common-law remedies.  Accordingly, car companies such as Mazda were not precluded from meeting higher standards of safety, and, indeed, through jury verdicts and traditional state common-law remedies, states may hold manufacturers to a higher standard of safety than the federal government does.  As discussed here, CAC filed a brief in Williamson, supporting the vitality of state common-law remedies that enhance Americans’ safety, and arguing that the text and history of the Constitution’s Supremacy Clause – which makes federal law controlling over state and local laws –only require preemption when a state law or remedy directly conflicts with federal law.

Justice Ruth Bader Ginsburg did not appear to think that the Williamsons’ state common law action against Mazda was in conflict with federal law.  Justice Ginsburg repeatedly emphasized in her questions—and in several instances even appeared to helpfully answer questions previously posed to Williamson’s counsel, Martin Buchanan—that the federal safety standard at issue in the case unambiguously set a minimum safety standard.  Thus, state common-law actions that hold companies and manufacturers to higher standards of safety are not in conflict with the federal minimum standard.

Chief Justice John Roberts and Justice Antonin Scalia were a little more skeptical.  Roberts was concerned that if the federal standard-setting agency had not required lap-shoulder belts in part because of the cost to install them, then it was inappropriate to allow state juries to require manufacturers to install the lap-shoulder belts and push the extra cost of the higher safety standard onto the car manufacturers.  Chief Justice Roberts even seemed fine with the implication of this line of reasoning: that any agency standard that considered cost in setting a minimum standard would thus serve as both a floor and a ceiling.  Essentially, Roberts was suggesting that any time the federal government provides different options for complying with safety standards but does not mandate a particular option because of cost concerns, state jury verdicts that find one option inadequate to another are preempted.

Justice Scalia appeared worried about juries having anything to do with standard setting.  The first question posed to Mr. Buchanan, Williamson’s counsel, was from Justice Scalia, in which he expressed utter incredulity that the federal government would want juries made up of average citizens supplementing federal safety standards by holding manufacturers accountable for safety defects in their products.  Putting aside the fact that juries have been seen as a bulwark of liberty since the Founding, Mr. Buchanan had an excellent answer: “Well, Justice Scalia, I believe common law has an important role to play, not only in compensating victims but also in providing manufacturers with an incentive to develop safer vehicles, even safer than the Federal minimum standards.”

Justice Ginsburg also had a good comeback to Justice Scalia’s line of questioning—maybe it doesn’t make a whole lot of sense to allow juries to impose safety standards above what the federal government requires, but that’s what the statute says, so…why are we still talking about this?  (OK, she didn’t actually say that last bit, but I’m pretty sure she was thinking it.)

Mr. Buchanan and the Williamsons were supported by the United States, and William Jay, Assistant to the Solicitor General, gave quite a masterful argument in court as amicus curiae.  For example, Jay pointed out that the non-preemption argument he made today is consistent with the government’s position for the past 20 years, citing the Solicitor General’s brief in Wood v. General Motors filed in 1990—at which time the Principal Deputy Solicitor General was none other than John Roberts.  Jay argued that “you could predict the position that the government would take in this case from that brief. The government said in that case that options don’t preempt, merely because they are options.”  It was a nice touch.

Greg Garre, himself a former Solicitor General under George W. Bush, argued on behalf of Mazda.  At the very beginning of his time, Garre was hit with the minimum-maximum—or floor-ceiling—conundrum.  Garre appeared to be arguing that options in a federal safety standard do preempt state common law, at least if the provision of options was based on a cost-benefit analysis.  Justice Stephen Breyer interjected with a plea to Congress to just say whether it is setting a minimum in statutes, or whether it is setting both a floor and a ceiling.  In the absence of such clear language, Justice Breyer noted that the Court should defer to what the agency says—and, in Williamson, the agency says no preemption—because the agency will be far more familiar with the tens of thousands of pages of agency records and “chances are they will come to a better, correct conclusion than I will with my law clerks.”  He added, to much laughter, “I have a lot to do.”

Justice Sonia Sotomayor and Chief Justice Roberts returned to what had now become a rather existential debate over how one can tell when a statue is setting a minimum standard or providing options that preempt state common law that prefers one option over another.  Roberts noted that, “a minimum, of course, always gives you options.”

Buchanan, in his rebuttal, brought everyone back to the basic facts that should decide this case.  The federal seatbelt safety standard was intended to be a minimum standard.  The federal standard has a savings clause that preserves state common law actions, like the Williamsons’ suit.  The standard is clearly structured to preserve common law actions and state court jury verdicts to provide for enhanced vehicle safety and encourage manufacturers to make the safest cars possible.

Under the Constitution’s Supremacy Clause, which is the constitutional source of preemption, federal law displaces state law only when there is a direct conflict between the two.  Here, the federal law is in harmony with the state law.  It would require a misreading of the federal law and a distortion of constitutional text and history to find preemption in this case.  Let’s hope the Supreme Court instead follows the text and history of the Constitution, respects the text and structure of the federal safety standard, and preserves the long-heralded role of state court juries as institutions that are able to hold the powerful to account and compensate the victims of wrongdoing.