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The Antipreemption Court

Another decision where the conservatives line up against federal preemption.

Josh Blackman | 5.14.2026 12:44 PM

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,........

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