Whether out of circumstance or an emerging trend, where state authority
was at issue, this term the U.S. Supreme Court overwhelmingly deferred
to state decision makers-- a significant reveral from last year.
There have recently been a wave of rightwing resolutions asserting "state sovereignty," with Governor Rick Perry even evoking Civil War-era rhetoric about Texas having the right to secede from the United States.
In a much anticipated decision, Wyeth v. Levine,
the Supreme Court in a 6-3 decision upheld states' right to hold the
drug industry accountable for not adequately warning consumers and
prescribers of a drug's impact. The pharmaceutical industry had argued
that Federal Drug Administration approval of a drug's warning label
pre-empts state claims of injury based on the failure by a company to
warn of additional dangers not covered by the FDA-approved label. The
court rejected this argument.
For years, states have increasingly seen their hands tied by a federal government declaring that preemption voids state consumer, environmental and labor rights laws. The Bush administration in particular used its regulatory authority aggressively to block state law after state law.
The results have been catastrophic. Despite the myth that "no one saw the subprime meltdown coming," the reality is that thirty states enacted laws to rein in abuses by predatory lenders. However, the Bush administration used its regulatory authority over banks to shut down most of those predatory lending laws in the courts. This is just the most dramatic example of how preemption allowed the federal government to enforce its own inaction on state governments at the behest of corporate interests.
With conservatives losing the presidency and democrats controlling
Congress, we are likely to see a significant redeployment of
conservative political energy into the states. There are still 33
state governments where Republicans control either a governorship or a
legislative chamber, and other state political bodies are still
controlled by conservative Democrats. We are already seeing rightwing forces shift to state level policy
campaigns. In fact, multiple conservative commentators have begun to
openly discuss that the states will be their key target in the next few
As the Supreme Court marches to the Right, corporate interests continue
to thrive at the expense of state regulatory powers. "This has been a
very successful year for the business community," said Miguel Estrada,
a Washington appellate lawyer who represents many key corporate
interests before courts in Washington, D.C." This session at the U.S.
Supreme Court, as this Dispatch will highlight, had an almost
uniform tilt towards business versus state regulatory authority. In
other areas like election law, the tilt was against poor voters who
faced restrictions on their right to vote, though the term was a more
mixed bag on criminal justice and other issues before the Court.