In 2011, a lawyer working for the left-wing Constitutional Accountability Center praised Justice Clarence Thomas as a "surprising ally for progressives" because Thomas favored a strict state law over a more lenient federal rule in an economic regulatory case. Today, in another state regulatory case, Thomas got some company in his role as a progressive "ally" from Justices Neil Gorsuch and Brett Kavanaugh.
The case is Virginia Uranium, Inc. v. Warren. At issue is a Virginia law that prohibits all uranium mining within the confines of the state. The mining company Virginia Uranium objected, arguing in a federal lawsuit that the state may not ban the practice because such decisions are preempted by the federal Atomic Energy Act, which leaves such matters in the hands of the Nuclear Regulatory Commission. In other words, according to the company, the federal statute should trump the more exacting state regulation.
Justice Gorsuch, joined by Justices Thomas and Kavanaugh, thought otherwise. "Congress conspicuously chose to leave untouched the States' historic authority over the regulation of mining activities on private lands within their borders," Gorsuch wrote. "Nor do we see anything to suggest that the enforcement of Virginia's law would frustrate the [Atomic Energy Act's] purposes and objectives…. In this, as in any field of statutory interpretation, it is our duty to respect not only what Congress wrote but, as importantly, what it didn't write."
Justice Ruth Bader Ginsburg, joined by Justices Sonia Sotomayor and Elena Kagan, agreed with Gorsuch that the state law should survive. But, in a separate concurring opinion, they maintained that the outcome should have been reached by a different route.
Meanwhile, Chief Justice John Roberts, joined by Justices Stephen Breyer and Samuel Alito, insisted that Gorsuch, Thomas, and Kavanaugh got it wrong on all counts. In Roberts' view, the terms of the Atomic Energy Act are broad enough to preempt the state law at issue here.
This is not the first time that Roberts and Alito have disagreed with Thomas in a case dealing with what we might call regulatory federalism. In Wyeth v. Levine (2009), for example, Thomas concurred with Justice John Paul Stevens' opinion that federal law did not preempt a state failure-to-warn lawsuit against a pharmaceutical company, even though the drug warning label at issue in that dispute had been approved by the Federal Drug Administration. The three dissenters in Wyeth were Roberts, Alito, and Justice Antonin Scalia.
Commentators often refer to the U.S. Supreme Court in terms of its liberal and conservative blocs. Today's divided ruling in Virginia Uranium, Inc. v. Warren is a reminder that such labels can sometimes obscure more than they reveal.
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