The Roberts Court is often derided as a pro-corporation Court. I've lost count of how many stories measure the Chamber of Commerce's success rate before the Supreme Court. The reality, however, is different. The Court often leans in a jurisprudential directions that corporations do not like. One leading example is preemption. As a general rule, corporate defendants favor broad preemption to avoid liability from state suits, while plaintiffs favor narrow preemption so they can bring state tort suits. But on the Supreme Court, things do not line up so neatly. Justice Thomas, a federalist, has long been a skeptic of broad preemption. I think Justice Gorsuch is in the same camp. Justice Kavanaugh, and to a lesser extent, Justice Alito, are the strongest votes to find broad preemption. That leaves (as usual) Chief Justice Roberts and Justice Barrett as the decision-makers. Unlike in most cases that are important to conservatives, there is not an automatic conservative majority to find preemption, and indeed, it may be hard to count to five.
I think we have something of an Antipreemption Court.
Consider three preemption cases argued this term.
