Yes, you read that right.

Yesterday, the U.S. Supreme Court unanimously ruled in favor of Delbert Williamson and his family, upholding their right to sue Mazda Motor Co. in state court following the tragic death of Thanh Williamson in a crash of the Mazda motor vehicle in which she was riding, which did not contain a lap/shoulder seatbelt at her seat.  (Constitutional Accountability Center filed a brief in the case supporting the Williamsons in their appeal.)  Mazda’s request to displace state consumer-safety laws and remedies through “federal preemption” doctrine was squarely rejected by the Court.  

But while it wasn’t terribly surprising that the Court arrived at the correct result in Williamson, some observers might be surprised that it is Justice Clarence Thomas, in this case, whose concurring opinion explains how the Constitution establishes a system of federalism that preserves the right of states to protect the health and safety of their citizens. This is the same vision of constitutional federalism, striking just the right balance between federal power and the ability of states to serve as laboratories of democracy, that progressives have advocated in consumer-safety cases such as Williamson and Wyeth v. Levine.  

In fact, in Wyeth, Justice Thomas joined Justice John Paul Stevens’s excellent majority opinion preserving state consumer protections against drug companies, and, as in Williamson, wrote a concurrence explaining that the text and history of the Constitution do not support applying the powerful doctrine of preemption of state law based on judicial speculation and implied policy preferences.  (CAC filed a brief in Wyeth as well, much of which was echoed in Justice Thomas’s concurrence in that case.) So what explains Justice Thomas’s emergence as a surprising ally for progressives on preemption? The facts of Williamson yield some clues.  

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 contained a provision expressly preserving traditional common-law remedies.  Accordingly, motor vehicle 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’s brief in Williamson supported the vitality of state common-law remedies that enhance Americans’ safety, and argued 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. Williamson revisited the doctrine of “implied preemption,” last applied by the Supreme Court in Wyeth v. Levine (discussed here and here), under which a court may hold that a state law is preempted by a federal law, even though the latter does not expressly provide for preemption.  Some applications of “implied preemption” have been far removed from the constitutional basis for preemption—the Supremacy Clause—and the text of the federal statute that is supposedly preempting state law.

As Justice Thomas explained in his concurrence yesterday—quoting his equally powerful concurrence in Wyeth—“‘freeranging speculation about what the purposes of the [regulation] must have been” is not constitutionally proper in any case. . . .The Supremacy Clause commands that the ‘[l]aws of the United States,’ not the unenacted hopes and dreams of the Department of Transportation, ‘shall be the supreme Law of the Land.”” U. S. Const., Art. VI, cl. 2.”  The plain text of the motor vehicle regulation at issue in Williamson was enough to resolve the case under Justice Thomas’s understanding of the Supremacy Clause: the federal law purposefully included a savings clause that allows state common law to establish higher standards than the ones imposed by the federal regulation.  Thus, the Williamsons’ lawsuit presented no conflict requiring federal preemption because a manufacturer could clearly comply with both the federal standard and a common law rule by meeting the higher common law standard.

States long have been at the forefront of consumer protection.  As noted above, when not expressly preempted, states may, through jury verdicts and traditional state common-law remedies, hold manufacturers to a higher standard of safety than the federal government does.  The Constitution’s Framers intended to protect the ability of states to carry out their law-making and common-law rule-making functions; nothing in the Supremacy Clause or in historical preemption cases suggests otherwise.  Justice Thomas’s understanding of the Supremacy Clause recognizes that.

Of course, establishing the supremacy of federal laws when an actual conflict arises between state and federal law is necessary and important to the functioning of our federal government.  But so, too, is the vital and historical role that state common law plays in protecting the public’s health and safety and in ensuring that individuals can obtain compensation for injuries caused by the failure of corporations or persons to meet a state’s health and safety standards.

The Court as a whole got it right yesterday in ruling unanimously for the Williamsons, but Justice Thomas articulated the version of constitutional preemption most faithful to the Constitution’s progressive text and history.  Accordingly, while many have commented on yesterday’s five-year anniversary of Justice Thomas’s silence on the bench, we should give credit where it is due and note how powerfully Justice Thomas has spoken through his Williamson concurrence.