by Doug Kendall, President, Constitutional Accountability Center

Today, in a ruling that surprised many, the Supreme Court held, 5-4, that federal law does not “preempt” state trial courts from reviewing deceptive advertising claims brought by smokers of “light” cigarettes and their loved ones against Altria (Philip Morris’ parent). Ms. Good and other claimants argue that Philip Morris promoted “light” cigarettes as delivering less tar and nicotine to consumers than do regular brands, even though the company knew this was false or misleading.

We’ll let others give more detail about the facts of the case and the implications for future tobacco litigation. At this point we’ll just chime in with a brief discussion of a couple of the other interesting aspects of the case.

First, the scope of Justice Stevens’ accomplishment in this case should not be understated. Sixteen years ago in Cipollone v. Liggett Group, Inc., 505 U.S. 504 (1992), Justice Stevens wrote a plurality opinion joined by Chief Justice Rehnquist and Justices O’Connor and White. None of those justices is on the Court today, yet Justice Stevens was able to turn that 4 justice plurality into a 5 justice majority, despite a trend in the Court’s preemption case law in favor of broad preemption. He accomplished this feat by bringing two justices that weren’t on the Court at the time of Cipollone (Justices Breyer and Ginsburg) and two justices that were on the Court but had a different view of the case then (Justices Souter and Kennedy) around to his position. As this ruling indicates, Justice Stevens’ impact on the Court – measured in his ability to persuade his colleagues about his view of the law – goes far beyond his one vote. This is something folks on the left should keep in mind. The Court is likely to shift to the right when Justice Stevens retires, no matter who is named as his replacement.

Second, Altria v. Good is one of a relatively few recent preemption cases in which the Court has split sharply along ideological lines. What has made preemption cases so interesting for litigators over the past two decades is precisely the fact that the justices have been unpredictable in their voting patterns. This is the way it should be: preemption cases involve a wide variety of detailed federal statutory schemes. There is or should be no set “liberal” or “conservative” way to read a federal statute. But, sadly, this seems to be changing when it comes to express preemption cases, where the Court’s conservative bloc appears to have coalesced around a fairly rigid pro-preemption position. Justice Thomas’ Altria dissent was joined by Chief Justice Roberts and Justices Scalia and Alito.

Justice Thomas attributes this ideological split to the fact that the conservative justices refuse to apply a “presumption against preemption” in express preemption cases, and he argues at some length against the wisdom of this presumption. This echoes earlier opinions by Justice Scalia in Cipollone and Justice Thomas in Bates v. Dow; it is the first time Chief Justice Roberts and Justice Alito have tipped their hand in this debate. But this strikes us as something of a red-herring. The “presumption against preemption” has always played a minor to non-existent role in preemption cases – it has, as many commentators have noted, been “honored in the breach.” While Justice Stevens cites the presumption as part of a discussion of black letter preemption law, the rest of his opinion is a straightforward explication of why an anti-preemption position here is the best reading of the Federal Cigarette Labeling and Advertising Act.

All the Justices appear to agree that the Court’s most fundamental duty is to honor the words chosen by Congress. Increasingly, the Court appears to be splitting along ideological lines in terms of how to perform that duty.