When Justice Gorsuch was first nominated for the Supreme Court, we took a look at his preemption decisions and were favorably impressed. We’re doing the same thing today with respect to the new nominee, Brett Kavanaugh, currently a judge on the United States Court of Appeals for the District of Columbia. Our job today won’t be as easy because there isn’t nearly as much state-law-based diversity tort litigation in the DC Circuit. Heck, there aren’t even any states in the DC Circuit. So it’s not likely that we’ll find a Caplinger v. Medtronic, Inc., 784 F.3d 1335 (10th Cir. 2015), in Judge Kavanaugh’s judicial resumé.
But we can try.
Our search for Kavanaugh opinions containing some form of the word “preempt!” produced 19 cases. Over half of them could be eliminated immediately, because “preempt!” appears only in a different opinion, one not written by the possible next Supreme Court justice.
We found only two Kavanaugh opinions concerning preemption that weren’t in the administrative context. The most significant of those was Doe v. Exxon Mobil Corp., 473 F.3d 345 (D.C. Cir. 2007), where Judge Kavanaugh dissented, in part on preemption grounds, from the court’s decision not to hear an appeal in one of those now (thankfully) eliminated Alien Tort claims involving plaintiffs and conduct that took place entirely overseas. In dissent, Judge Kavanaugh would have dismissed the Alien Tort claims on non-justiciability grounds due to interference with American foreign policy . Id. at 359-64. A few remaining state-law tort claims would be preempted for essentially the same reason:
[T]he possibility that state law (in this case, D.C. tort law) will produce something more than incidental effect in conflict with express foreign policy of the National Government requires preemption of the state law. Although we need not resolve the issue here, the state-law tort claims are likely preempted as a result of the State Department’s specific statement of harm...
