Yesterday, the Supreme Court heard oral argument in Monsanto Co. v. Durnell. The facts of this case are likely not of concern to most constitutional law scholars, but the dispute is of serious concern to the business community. The plaintiff sued Monsanto (which is owned by Bayer) for harms caused by the Roundup herbicide. (Don't call it a pesticide, as Justice Thomas--a former Monsanto employee--reminded us.) The jury awarded $1.25 million in compensatory damages based on a failure to warn about possible harms. Bayer counters that the EPA did not require those additional warnings, so the state tort claims is preempted.
Going into the argument, I struggled to count to five votes for the plaintiff. Preemption is an area where the Court's conservatives do not line up neatly. Justice Thomas, the Court's most committed federalist, has often been skeptical of federal preemption. See his opinion in Hencely just last week. I thought Justice Gorsuch would be in a similar spot. I was fairly certain Justice Kavanaugh would be troubled by the possible economic effects on companies like Monsanto, and would favor broad federal preemption. I suspected that Chief Justice Roberts would fall in a similar camp. Same for Justice Alito. I wasn't sure where Justice Barrett would be. It It was conceivable that Justice Kagan would favor broad federal preemption to promote uniformity, but I was doubtful.
Having now listened to the oral arguments, I will stand by my prediction. Everyone lined up about where I expected. Despite Paul Clement's best efforts, I'm not sure where Monsanto finds five votes. Indeed, the Justices seemed to have very few questions for Ashley Keller, counsel for the Durnell. Perhaps they were a bit tired, as the argument in Chartrie stretched nearly two hours, but Keller was able to talk uninterrupted for several minutes. And with about ten minutes remaining, and no further questions coming, Keller sat down. As a general rule, the side that gets the most questions is more likely to lose. Then again, the Justices may have been spent after the Fourth Amendment case.
