Thomas breaks with conservative justices to criticize a Bush-era policy

The Supreme Court opinion that drew the most praise last week from a proudly “progressive” constitutional law group was written by perhaps the court’s staunchest conservative, Justice Clarence Thomas.

Thomas would have gone further than the court’s liberals in a decision that allowed injured patients to sue drug makers. In a 24-page concurrence, he said the court should have declared that judges have no authority to void state consumer-protection laws based on “agency musings” from Washington.

In this instance, Thomas was referring to the musings of the George W. Bush administration and its drive to limit lawsuits against manufacturers.

“We think Justice Thomas got it exactly right,” said Doug Kendall of the Constitutional Accountability Center. “A key part of our constitutional system is respect for the states in protecting the health and welfare of their citizens.”

Thomas has never been shy about breaking with conventional wisdom -- even when it is the conservative consensus. Over the years, he has spelled out a distinctive approach in several areas of the law. And his views do not always yield predictably conservative results.


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.

In earlier opinions, he disputed the broad reach of federal regulatory power, a view welcomed by some business groups. In the marijuana case, Thomas repeated the same view, but this time on the side of Angel Raich, an Oakland woman who challenged the federal raids.

“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.”

Thomas is often alone on the current court as a steady advocate of limited federal power and respect for states’ authority.

Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. are more inclined to side with federal authorities. Usually Thomas is squarely in the conservative camp with Roberts and Alito when a state’s criminal laws are being challenged. He and Scalia rarely vote to limit a state’s use of the death penalty.

But in some business cases, Thomas has split from his conservative colleagues.

The case decided last week, Wyeth vs. Levine, involved the recurring conflict between federal regulations and state liability law. Business groups -- and the Bush administration -- maintained that federal regulation of products should “preempt” or trump state laws.

Diana Levine won a $6.7-million Vermont jury verdict after part of her arm was amputated. She said drug maker Wyeth failed to fully warn the public about the danger of injecting the anti-nausea drug Phenergan. If it mixes with arterial blood, it can cause gangrene and lead to amputation.

The warning label said “extreme care” should be taken when injecting the drug. It did not warn against giving it by injection.

Wyeth appealed the verdict, arguing that jurors should not be permitted to “second-guess” the federal regulators who approved the drug and its warning label.

Roberts, Scalia and Alito agreed with Wyeth. Even if the Food and Drug Administration’s decision was wrong, it should prevail, they said.

“After today’s ruling, however, parochialism may prevail,” Alito wrote for the dissenters.

The court’s majority, led by Justice John Paul Stevens, said Congress did not intend to take away the right of injured patients to sue drug makers. Levine’s jury verdict was affirmed.

Thomas went further and said the court should lay down a marker.

“I have become ‘increasing[ly] reluctan[t] to expand federal statutes beyond their terms through doctrines of implied preemption,’ ” he wrote, quoting himself in an earlier Supreme Court case.

Unless Congress spells it out in the text of the law, Thomas said, the consumer’s right to sue under state law should be protected.