Clarence Thomas and the Drug Company Ruling: Not Exactly Liberal

Posted by Mike Merritt in Politics, Society on

(Cross-posted from Poligazette)

Liberals are shocked!  Shocked, I tell you.  Why?  Well, a recent Supreme Court concurring opinion to a ruling that will allow patients to sue drug companies for injuries related to the drugs was written by none other than Clarence Thomas, that avowedly conservative justice.

Of course, without even having to read his opinion, this LA Times article tells you all you need to know about why Thomas supported the right to sue.  In short, he supports state law:

Four years ago, for example, the court, with Justices Antonin Scalia and Anthony M. Kennedy in the majority, upheld the power of federal agents to raid the homes of Californians who grow marijuana for their personal use — legal under state law but not federal law. Thomas disagreed. […]

“If Congress can regulate this under the Commerce Clause, then it can regulate virtually anything,” Thomas wrote in dissent. ” . . . Our federalist system, properly understood, allows California and a growing number of other states to decide for themselves how to safeguard the health and welfare of their citizens.”

Basically, Thomas is a federalist, a supporter of limited federal government interference into state affairs.  So, knowing this, his concurrence with the majority isn’t so surprising.

Clarence hasn’t suddenly turned into a business-hating liberal.  His position here is the conservative one.  I suppose the more important question is: why didn’t the other conservative justices rule this way?

By the way, it’s important to note that Thomas didn’t join in the majority opinion.  He thought it overreached:

In particular, I have become in-creasingly skeptical of this Court’s “purposes and objectives” pre-emption jurisprudence. Under this approach,the Court routinely invalidates state laws based on perceived conflicts with broad federal policy objectives, legislative history, or generalized notions of congressionalpurposes that are not embodied within the text of federal law. Because implied pre-emption doctrines that wanderfar from the statutory text are inconsistent with the Constitution, I concur only in the judgment.

If Congress had written a law barring state lawsuits against drug companies in the area this lawsuit covered, Thomas would have been in the dissent.

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