As we mentioned in our recent
Preemption Teaser post, last month's concurrence in denial
of certiorari in Lipschultz v. Charter Advanced
Services (MN), LLC, ___ S. Ct. ___, 2019 WL 5300908 (U.S.
Oct. 21, 2019), provides an indication that, at least to some
extent, Justice Thomas might have found a kindred spirit of sorts
in Justice Gorsuch (who joined that concurrence) as to some of his
hitherto idiosyncratic preemption views. In particular, the opinion
repeated, id. at *2, the "freewheeling
judicial inquiry" catchphrase from Justice Thomas'
concurrence in Wyeth v. Levine, 555 U.S. 555, 558
(2009), in which he, alone among the Justices, rejected the concept
of "obstacle to purposes and objectives" implied
preemption (which hereafter we'll just call
"obstacle") altogether for precisely that reason.
