Justice Thomas Assigns Himself A Majority Opinion

Today the Supreme Court decided Hencely v. Fluor Corp. The vote was 6-3, though not the split you might be expecting. Justice Thomas wrote the majority opinion, joined by Justices Sotomayor, Kagan, Gorsuch, Barrett, and Jackson. Justice Alito dissented, joined by the Chief Justice and Justice Kavanaugh. This unusual divide is due to the subject matter: preemption.

You might think that the conservative view favors broad federal preemption, but this is not so. Justice Thomas has long been skeptical of federal preemption, as it intrudes on principles of federalism. Wyeth v. Levine (2009) is a prominent case where Justice Thomas voted with the liberals. I think Justice Gorsuch is in a similar spot as Justice Thomas. I am not entirely sure where Justice Barrett lines up, but in Hencely, she joined Thomas and Gorsuch.

Justices Roberts, Alito, and Kavanaugh, by contrast, are more traditional, and favor broader preemption standards. Thus it was not surprising they dissented here.

It is noteworthy that Justice Thomas assigned himself this majority opinion. Given how rarely the Chief Justice dissents, there are few cases where Thomas is in the majority while Roberts is in the minority. For the senior associate Justice, Thomas assigns very few cases.

This case may not attract headlines, but it could have an impact on a big case to be argued next week: Monsanto Company v. Durnell. This is a preemption case concerning the Roundup pesticide. You might think the conservatives clearly win this case. After all, a ruling for the plaintiff would be devastating for the agricultural market. But things are not so simple. And both sides have lawyered up well. Paul Clement represents Monsanto. Durnell is represented by Ashley Keller, one of the best conservative plaintiff-side attorneys. Keller argued Mallory, and nearly got International Shoe reversed. Keller is joined on the briefs by Jonathan Mitchell, also known as “The Genius.” The argument should be entertaining.

If Hencely is any indication, Monsanto may have a hard time getting to five votes. I thought Durnell’s briefing was very clever to tie Paul Clement (of all people) to Loper Bright.

Let’s see what happens.