I have a new column up about the Supreme Court stretching to defend corporate interests — who saw that coming? — in AT&T v. Concepcion. Another point about the preemption cases is that they’re a classic example of Lemieux’s Law: Nobody Actually Cares About Federalism.
Nor can the outcome in AT&T v. Concepcion be justified by broader conservative constitutional principles. The Court’s conservatives are allegedly committed to federalism — that is, states’ rights — but here they called for federal uniformity. (Some of these same justices are likely to argue against federal uniformity when the Affordable Care Act and its alleged intrusion on state sovereignty comes up). From the Fugitive Slave Act to the Federal Partial-Birth Abortion Act, alleged conservative commitments to “federalism” rarely survive clashes with cherished conservative interests, and Wednesday’s ruling is another case in point.
You could be committed to federalism and uphold uniform rules where Congress clearly preempted state law — but in this case it did no such thing.