Politics, preemption, and federalism

[Mark Tushnet]

I'm sure that there's *something* to Sandy Levinson's account, but there are some anomalies that need to be addressed in a full version of the argument that the Court's federalism/preemption decisions are intended to promote a conservative agenda. (If the argument is that the decisions merely "do" promote a conservative agenda, one wants some sort of invisible hand explanation.)  Notably, what does one make of Justice Thomas's position?  He regularly joins Justice Stevens's dissents in the preemption cases.  And what about Justice Breyer, the author of *Geier*?  I'm tempted to say, as to him, that he's simply a nationalist.  But that's to say that he has views about the proper interpretation of the Constitution that lead him to results consistent, sometimes, with a conservative agenda.  Why not say parallel things about the rest of the Court?   That is, that the *proximate* reason for the results they reach is their best judgment about what the law requires, and that things like conservatism/liberalism operate at a deeper level?

Mark Tushnet
Georgetown University Law Center
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tushnet at law.georgetown.edu