So, anyone besides me remember that great scene in 48 Hours where Luther goes to pick up a car at a parking garage where it was left years before, and responds to the cashier’s comment about how long its been by shouting “I’ve been busy!”? I always think of that when I get so busy that my blogging falls behind. You know that Supreme Court decision on preemption, Gobeille v. Liberty Mutual Insurance Company, that has been out for a few weeks but I haven’t written on yet? Well, I’ve been busy!
That said, though, one of the beneficial side effects has been that I have been mulling over the opinion for a couple of weeks now without putting finger to keyboard to discuss it, and I have found that my thoughts about it have become more nuanced than they would have been if I had been able to write about it after first reading it. At that point, my thoughts would have probably run along the lines of everything else that has been written about it, which have tended to be that here’s a case that reaffirms the strength of preemption, which is pretty much what everyone else has said about it (although Professor Secunda, the former workplace prof, did tweet a different response to the opinion, to the effect that the justices are just plain wrong about the scope of preemption).
To a certain extent, that original consensus about the opinion (that it reaffirms and demonstrates the strength of ERISA preemption) is, in fact, correct, but it also created a sort of bored response to the opinion, something perfectly captured by this prominent blogger’s post on the decision, with its “I am so bored, how many times have I seen this before” tone. And the ennui in response to the opinion is not surprising – I think almost everyone believed that ERISA preemption applied here and that the Supreme Court would reach that conclusion, as it did.
But to me there is something more interesting buried in the backdrop and in the cluttered collection of opinions that make up the decision. First off, there is no question that, for present purposes, the decision drives home the power of ERISA preemption and, in fact, reinvigorates it. The majority opinion provides what might best be described as a taxonomy of ERISA preemption doctrines, and every good defense lawyer should be able to find a foundation for a claim of ERISA preemption in that taxonomy for almost any state law claim made against a plan.
But what’s interesting to me is that three justices – Thomas, Ginsburg and Sotomayor – in two different opinions (one concurring and one dissenting) wrote independently to suggest that ERISA preemption has gone off the rails and either may not be (in Thomas’ view) or is not (in the view of the other two justices) as broad as the majority opinion insists, or as broad and sweeping as most ERISA litigators argue. Both opinions, in fact, give guideposts to litigators for arguing in the future against preemption, with Thomas, in fact, seemingly inviting someone, somewhere to attack the very constitutional foundation of applying ERISA preemption to the extent that it has been traditionally applied.
I will be curious to see whether, five years or so down the road, we look back and view Gobeille as some sort of high water mark with regard to the strength and power of claims of ERISA preemption, and come – with the benefit of hindsight – to see the differing but sustained attack by Thomas, Ginsburg and Sotomayor in Gobeille on the scope of ERISA preemption as the beginning salvo in a gradual scaling back of the scope of ERISA preemption.