PEOPLE FOR BLOG

Supreme Court's Legitimacy Rests With the Justices

As noted in a NYT editorial by Jeff Shesol, some of the justices of the Supreme Court are spending a lot of their time off the bench engaging in all sorts of extracurricular activities. Of course, they have always participated in the usual speech-giving and book-singing circuit – but as of late, some justices have lent their names to organizations with decidedly partisan agendas, including Koch-sponsored policy retreats, and have become increasingly entangled with ideological benefactors with clearly partisan agendas.

This has prompted calls for a re-examination of our standard of judicial ethics, since many of them surprisingly do not apply to the high court. Sheshol writes:

Yet there are few, if any, precedents for the involvement of Justices Thomas and Scalia with the fund-raising efforts of the Koch brothers. In an invitation to a meeting earlier this year in Palm Springs, Calif., Charles Koch cautioned financial contributors that “our ultimate goal is not ‘fun in the sun.’ This is a gathering of doers.” The meeting’s objective was “to review strategies for combating the multitude of public policies that threaten to destroy America as we know it.” Last summer’s sessions included “Framing the Debate on Spending” and “Mobilizing Citizens for November.” The invitation listed Justices Scalia and Thomas first among the “notable leaders” who had attended past meetings.

In the face of criticism, the court’s conservatives may be doubling down. Justice Thomas, in particular, has lashed back, refusing to disclose activities and relationships that have been called into question. Stone’s admonition, clearly, is as relevant as ever. Over its history, the Supreme Court has faced periodic threats to its legitimacy and has survived with its powers intact, thanks in large part to its public esteem. At some point, another challenge will come. And the court, next time, may find fewer Americans on its side if its members allow themselves to be perceived, in Justice Breyer’s words, as “junior-varsity politicians” who possess, but do not merit, the last word.

 

PFAW

NH and OH Reject Voter-Disenfranchisement Bills

New Hampshire Gov. John Lynch vetoed a proposed voter-ID law that would have required voters to show a photo ID before casting a ballot. In rejecting the proposal, Gov. Lynch called out the law for what it was – an expensive, anti-democratic solution for a problem that doesn’t exist:

The right to vote is a fundamental right that is guaranteed to all citizens of this State under the United States and New Hampshire Constitutions. An eligible voter who goes to the polls to vote on Election Day should be able to have his or her vote count on Election Day. SB 129 creates a real risk that New Hampshire voters will be denied their right to vote.

Voter turnout in New Hampshire is among the highest in the nation, election after election. There is no voter fraud problem in New Hampshire. We already have strong elections laws that are effective in regulating our elections.

Just yesterday, the Ohio Senate adjourned without voting on a similar bill, lacking the necessary votes to move it forward. Voter ID laws are being pushed in at least 36 states, according to a report by the Voting Rights Institute, at a potential cost of $828 million – quite a staggering sum for the allegedly budget-conscious Republicans who have proposed all of these bills. These bills highlight a cynical desire to disenfranchise certain groups of people – primarily minorities, students and the elderly – who don’t necessarily tend to vote the “right” way.

PFAW

After Long Delays, Senate Confirms 3 DOJ Nominees

The Senate today confirmed three of President Obama’s nominees to fill long-vacant posts in the Justice Department, including, at long last, a leader for the DOJ’s Office of Legal Counsel.

The Senate confirmed attorney Virginia Seitz to head the Office of Legal Counsel, which hasn’t had a permanent, Senate-confirmed head since 2004. President Obama’s first nominee to fill the position, the well-respected and highly qualified law professor Dawn Johnsen, came under fire from Republicans for her support of abortion rights and opposition to torture, and withdrew her nomination last year after over a year of obstruction and gridlock

The OLC essentially acts as the White House’s private law firm, advising the president and executive branch agencies on the constitutionality of their actions

Besides Seitz, James Cole was confirmed to serve as Deputy Attorney General, a position that has been vacant since February 2010, and Lisa Monaco was confirmed to lead the DOJ’s National Security Division, which has been vacant since March.

PFAW

Wisconsin News Round-up: 6/28/11

News from Wisconsin:

Rep. John Nygren says he’ll challenge the GAB’s ruling that he fell short of the required adequate signatures. However, the possibility of rehabilitating signatures is over. Don’t worry, John, I believe in you, you got this.

Nygren’s disqualification (assuming no intervention from the Signature Fairy) means Hansen will now face David VanderLeest in a July 19 general election. As for VanderLeest, I can’t describe him any better than We Are Wisconsin, who said VanderLeest’s “rap sheet reads like a directory of the Wisconsin state criminal code.”

The Prosser-Bradley controversy continues, with conservatives screaming "conspiracy!" and "smear campaign!"; just another day reporting on the grand leftist plot to destroy America... Interestingly, though, Gov. Walker isn’t quite as confident, saying “I can't overemphasize how serious I think the situation is there.” Both the Wisconsin Judicial Commission and the Dane County Sheriff are investigating the incident.

Despite supporting Walker’s extreme budget which hits schools, working families and seniors hard, State Sen. Robert Cowles was not present at the budget signing event -- even though it was held in his district. This is especially surprising considering he’s known for showing up to everything in the district. It’s ok, Rob, we don’t expect you to actually stand up and be accountable for your horrible decisions.

It seems running from reality is fashionable among Wisconsin Republicans, as Luther Olsen has been unavailable to meet with constituents several times. To be fair to Olsen, if I was him, I’d be pretty ashamed too. Check out the video, it’s fun.

As always, follow our campaign at RecallTheRight.org.

PFAW

People For’s Drew Courtney Discusses Supreme Court Video Game Decision

Yesterday, the Supreme Court struck down a California law that banned the sale of violent video games to minors, holding in a 7-2 decision that the ban violated the First Amendment. PFAW Foundation Communications Director Drew Courtney visited DC’s Fox 5 News this morning to discuss how the Court’s decision protects the principles of free speech, while strengthening the rights of parents to decide what’s best for their children:

Supreme Court Says Government Can't Ban Violent Video Game Sales to Kids: MyFoxDC.com

PFAW

A Call to Action: Restore Equal Employment Opportunities in America

Saturday was the 70th anniversary of President Roosevelt’s issuance of Executive Order 8802, which prohibited racial discrimination by defense contractors. Last week, Congressman Bobby Scott hosted a press conference and briefing in honor of the anniversary of this event, which marked the first time a U.S. president had acted to combat discrimination by private employers who were using federal taxpayer money. Future presidents expanded on President Roosevelt’s action and added to its protections.

However, this was more than just a celebratory event of an important civil rights milestone: it was a call to action to correct an erosion of equal employment opportunity law that has been in effect since 2002. That’s when President Bush signed an Executive Order that made discrimination on the basis of religion by faith-based organizations using federal taxpayer money legal. In so doing, he reversed our nation’s continuous expansion of the promise of equal protection and opened a gaping hole in our nation’s civil rights protections. Religious entities had always been able to discriminate based on religion using their own money, but never to use taxpayer money to do so.

All the panelists were united in asking President Obama to fulfill his campaign promise of restoring the law. On the panel were: Congressman Bobby Scott (convener of the event); Congressman Jerrold Nadler; Professor Eric Arnesen (professor of history at George Washington University and biographer of civil rights and labor leader A. Philip Randolph, whose activism prompted FDR’s executive order); Rabbi David Saperstein (Director of the Religious Action Center of Reform Judaism, and also a board member of our affiliated People For the American Way Foundation); Barbara Arnwine (Executive Director of the Lawyers’ Committee for Civil Rights Under Law); Hilary Shelton (Director of the NAACP Washington Bureau); and Rev. Dr. Paul L. Brown, Sr. (Pastor of Miles Memorial CME Church and member of People For the American Way’s African American Ministers In Action).

Among other things, speakers discussed how employment discrimination harms the victims and society as a whole; warned that religion can easily be used as a proxy for race, sex, sexual orientation, and gender identity; condemned discrimination paid for by the tax dollars of its victims; asked why the religion of someone ladling out soup for the hungry should matter; and warned of the dangerous consequences to churches that want to retain federal funding they have become dependent on. As the last speaker, Rev. Dr. Brown opened a window into his daily work helping the hungry and the homeless, the “least and the lost,” and strongly condemned federally funded discrimination.

When he was running for President, then-Senator Obama promised to reverse President Bush’s policy, but he has yet to do so. What better time than the anniversary of the issuance of Executive Order 8802 for President Obama to put our nation back on the right road and restore through executive order the prohibition against federally funded discrimination? Yesterday, People For the American Way and African American Ministers In Action joined more than 50 other civil rights and religious organizations asking him to do just that.

PFAW

Don’t Speak: The Supreme Court’s New Theory of Free Speech in Elections

Last year, the Supreme Court ruled that corporations have a First Amendment right to spend as much as they want to influence elections. Yesterday, the Court ruled that wealthy candidates and campaign donors have the First Amendment right not to have their spending matched by their opponents.

Welcome to the new logic of free speech in elections.

In a 5-4 decision today, the Supreme Court ruled that a crucial provision of Arizona’s landmark clean elections law, which provides matching funds to publicly financed candidates who are up against particularly well-financed opponents, to be unconstitutional. Why? Because the provision to put publicly financed candidates on even footing with their privately financed opponents “chills” the speech of wealthy individuals and groups who want to pour money into elections.

Yes, if you’re a wealthy person or interest group looking to buy an impact in an election, you might be put off by knowing that, because of matching funds, you would never be able to overwhelm a publicly funded opponent into comparative silence. But, looking at it from the other side, if you’re a candidate who wants to spend your campaign talking to voters rather than donors, you might hesitate to take public financing if you knew you would never be able to even come close the funds of your opponent – without matching funds, the public financing system is all but useless. By taking away the mechanism by which a greater number of candidates can make their voices heard, the Court has stifled speech, rather than protected it.

Justice Elena Kagan, in a zinger-laden dissent, took on the majority’s “more speech is less speech” argument:

The First Amendment's core purpose is to foster a healthy, vibrant political system full of robust discussion and debate. Nothing in Arizona's anticorruption statute, the Arizona Citizens Clean Elections Act, violates this constitutional protection. To the contrary, the Act promotes the values underlying both the First Amendment and our entire Constitution by enhancing the "opportunity for free political discussion to the end that government may be responsive to the will of the people."

People For’s Marge Baker had this to say:

The Roberts Court has once again twisted the Constitution to benefit the wealthy and powerful while leaving ordinary Americans with a diminished voice. Like in Citizens United v. FEC, which prohibited legislatures from limiting corporate spending to influence elections, the Court’s majority has strayed from the text and history of the Constitution in order to prevent citizens from maintaining control over our democracy. The Roberts Court would do well to remember that the Constitution was written to protect democracy for all people, not just the rich and powerful. Today it has ruled not only that the wealthy have a right to spend more but that they have a right that everyone else spend less.


PFAW

Wisconsin News Round-up: 6/27/11

News from Wisconsin:

Candidates:

Other news:

Finally: I’ve found this resource to be extremely useful.

As always, follow our campaign at RecallTheRight.org.

PFAW

Getting Your Day in Court Not So Simple?

We thought you might be interested in an HBO documentary, which premiers tonight, about the barriers to access that many Americans face when trying to seek justice in a court of law. The film discusses the impact of corporate influences on the judicial system and their implications for the civil rights of average Americans.

Here’s the trailer:

PFAW

Spirit of a Serial Killer

John Wayne: Rugged. Distinctive. An enduring American Icon. It’s no wonder that Michele Bachmann, as she kicks off her presidential campaign, wants to embody these qualities.

"Well what I want them to know is just like, John Wayne was from Waterloo, Iowa. That's the kind of spirit that I have, too," said Bachmann.

Well, it turns out that Bachmann’s fellow Waterloonian is not John Wayne the movie star, but John Wayne Gacy, the serial killer.

According to the Washington Times, Gacy began his life of crime in Waterloo, before moving on to Illinois, where he picked up a whopping 33 murder convictions before his eventual execution in 1994.

On Face the Nation, Bachmann passed up an opportunity to correct the 16 statements identified by PolitiFact as “False” or “Pants on Fire” – let’s see if she’ll stand by this little gaffe as well.

  

PFAW

Ohio Gov. John Kasich's Secret Video

In this by-invitation-only video, Ohio’s governor, John Kasich, sings praises to “the fighters of freedom, the grassroots leaders of American for Prosperity (AFP)”. While he was at it, he might have well just given a big thanks to Charles and David Koch, the financial sponsors of AFP, as well as large donors to the governor’s campaign.

So why exactly is Kasich thankful for Americans for Prosperity?

Well, Kasich applauds their support in helping with the privatization of the state’s economy. The new program known as JobsOhio is supposed “to be able to move at the speed of business”. But while it’s promoting corporate profits, JobsOhio will require privatizing five prisons, doing away with the state’s estate tax, and cutting funding for schools and local governments. Townships are expected to lose 50% of their funding from the state, while schools lose about 11.5%. That equates to roughly 10,000 teachers.

Another accomplishment Kasich celebrates could not have happened without AFP’s support is "government union reform". Translation: union-busting that prevents public workers (including teachers, firefighters, and police officers) from collective bargaining for benefits and from going on strike.

So it is no wonder that Governor Kasich did not want to make this video public. Thanking a group for helping him to cut thousands of jobs, limit workers’ rights, privatize state services, and put a significant tax burden on local governments certainly won’t be a great boost to his 33% approval rating.

PFAW

From Fringe Figure to Movement Leader: Michele Bachmann's Far-Right Roots

Cross posted on The Huffington Post

Rep. Michele Bachmann, who today officially announce her candidacy for the presidency, isn't just a Tea Party candidate - in many ways she embodies the evolution of the movement. The Minnesota congresswoman, who built a reputation as an outspoken and often outrageous defender of extreme social conservatism, is increasingly trying to portray herself as a champion of fiscal conservatism - and using the language of social conservatism to do it. As she attempts to frame herself as a low-tax champion, and tone down her speech to reach a broader audience, it's important to remember where Bachmann's fiscal conservatism comes from. Bachmann represents a newly powerful force in American politics: a hard-right, pro-corporate fiscal conservative wrapped up in the rhetoric of the Religious Right. To know her, you have to know the far-right social movement in which she remains rooted.

A former state legislator who built her career fighting reproductive choice and gay rights, Bachmann continues to ally herself with far-right groups in her home state and to push her extreme ideology in Congress. As a Minnesota state senator, she was known for her radical anti-choice, anti-gay and anti-evolution campaigns. She cosponsored a measure to give "14th Amendment protections to an embryo or fetus," similar to the extreme and likely unconstitutional fetal "personhood" amendments that have been rejected by even very conservative state legislatures in recent months. She has since endorsed one such measure in Ohio, which would ban abortions after the "heartbeat" of a fetus is detected. She cosponsored legislation to undermine the teaching of evolution, stating that people who believe in the science of evolution are part of a "cult following."

But she was perhaps best known for her all-out campaign against gay rights. A People For the American Way report summarized:

In the State Senate, she spearheaded the effort to pass a state constitutional amendment banning same-sex marriage. "The immediate consequence, if gay marriage goes through," Bachmann said , "is that K-12 little children will be forced to learn that homosexuality is normal, natural and perhaps they should try it." She has also referred to homosexuality as "personal enslavement" and a "sexual identity disorder." Bachmann also promoted the claim that gays and lesbians recruit children, maintaining that her mission to block LGBT rights "is a very serious matter, because it is our children who are the prize for this community, they are specifically targeting our children."

Bachmann's willingness to go to the extreme right of any social debate earned her like-minded friends in Minnesota. She has forged close ties with a pastor named Bradlee Dean and his extreme anti-gay ministry, "You Can Run But You Cannot Hide." Dean believes that homosexuality should be criminalized , and once praised Muslims who call for the execution of homosexuals as "more moral" than toleration-minded American Christians:

Muslims are calling for the executions of homosexuals in America. This just shows you they themselves are upholding the laws that are even in the Bible of the Judeo-Christian God, but they seem to be more moral than even the American Christians do, because these people are livid about enforcing their laws. They know homosexuality is an abomination...Hollywood is promoting immorality and God of the heavens in Jesus' name is warning you to turn from the wrath to come. Yet you have Muslims calling for your execution. If America won't enforce the laws, God will raise up a foreign enemy to do just that. That's what you are seeing today in America.

Dean claims that most gay people are child molesters, estimating that "on average, they molest 117 people before they're found out" and insists that anti-bullying programs in schools amount to "homosexual indoctrination." In one particularly bizarre train of thought , he asserted that Muslim congressman Keith Ellison was working with gay and lesbians to impose Sharia law: "He wants to bring in Sharee [sic] law through the homosexual agenda.... They are using the homosexuals as a political battering ram to bring forth what? Sharee [sic] law." Dean has also accused President Obama of turning the U.S. into a "Muslim nation," and recently roundly appalled the Minnesota state House when he delivered a prayer questioning the president's Christian faith.

Dean's unhinged extremism hasn't turned off Bachmann. She was the host of a 2009 fundraiser for his group, participated in a documentary he made, and delivered a public prayer calling for God to "expand this ministry beyond anything that the originators of this ministry could begin to think or imagine." This summer, Bachmann is scheduled to share the stage with Dean at a Tea Party event in Kansas.

Bachmann also continues to lend her support - including headlining a fundraiser in May -- to the Minnesota Family Council, an anti-gay group that she worked closely with when leading the marriage amendment effort in the state legislature. The MFC has been on the front-lines of the effort to stop numerous gay rights bills in Minnesota, and is active in a renewed push for a marriage amendment. The group backs up its efforts with vicious anti-gay rhetoric. Its president, Tim Prichard, has compared homosexuality to cigarette smoking and has said that comprehensive sex ed in schools would promote "homosexual behavior, anal or oral sex, things like that." Prichard blamed the suicides of four LGBT students on Gay-Straight Alliances and "homosexual indoctrination." The group has been a leading player in the Religious Right's campaign against anti-bullying policies in schools.

And then there was Bachmann's $9,000 donation to a Minnesota group credited with performing "exorcisms" on gay teens. She also remains closely allied with Generation Joshua, a far-right anti-gay group that funnels conservative homeschoolers into right-wing politics, which has dispatched kids to help with her congressional campaigns.

Bachmann has carried the flag of her extremist Minnesota allies to Congress, where in positioning herself as a leader of the Tea Party she loudly embraced the fiscal-issues Right while continuing to feed the social-issues Right.

In an illustration of both sides of the conservative movement merging in the Tea Party, Bachmann invited right-wing pseudo historian David Barton, who believes that Jesus opposed the minimum wage and the progressive income tax - and who Bachmann calls a "national treasure" -- to speak to Congress about the Constitution. Like Barton, Bachmann deftly frames the anti-tax, pro-corporate ideology of fiscal conservatives in the moral language of social conservatives. At a Religious Right conference last month, she called the national debt an "immoral burden on future generations" and lamented that "many are discouraged from marriage by an underperforming economy." She is also fond of invoking the Founding Fathers to make her point about any number of issues, once even advocating reducing the federal government to its "original size." And in a classic Barton technique, she hasn't been above using a totally made-up George Washington quote to bash President Obama.

Bachmann's efforts to merge the small government crowd with the big-government-in-personal-life crowd were again on full display this weekend, as she praised New York's marriage equality vote as an example of states' rights, while continuing to advocate a constitutional amendment that would take away the right of states to expand marriage equality.

Bachmann illustrates the odd brew that has created the Tea Party - the energy of social conservatives papered over with the money of pro-corporate conservatives, mixed up with a new rhetoric that combines the two issues. Her ability to be at home in both worlds makes her an unexpected powerhouse of a candidate...but one whose prominence should continue to be troubling to the American people.

PFAW

Sen. Ron Johnson’s $10 million Deferred Compensation Raises Ethics Questions

Far-right Senator Ron Johnson (R-WI) spent roughly $9 million of his own money last year to finance his senatorial campaign. Lucky for him, shortly after his campaign ended, he received $10 million in deferred compensation from the plastics company he used to run.

This alone would warrant some questions, but the details of the compensation package cast even more suspicion over the deal. According to the Milwaukee Journal-Sentinel:

Unlike most deferred package deals, however, it appears that the company had not set aside a specified amount annually that would be paid out when he left the firm. Instead, Johnson said the $10 million payment was "an agreed-upon amount" that was determined at the end of his tenure with the company.

 Agreed upon with whom?

"That would be me," he said.

Is it just a coincidence that the amount Johnson spent on his campaign so closely matches the amount he received in compensation? Quite possibly, but it is also enough to provoke some legitimate questions. Long-standing campaign finance laws prohibit corporations from directly funding campaigns for federal office, and if it were to come out that Johnson was reimbursed for his expenditures it would be a major campaign finance violation. So how does Johnson respond to questions about his spending? Again, from the Journal-Sentinel:

The first-term Republican declined to say how his Oshkosh firm, Pacur, came up with a figure that so closely mirrored the amount he personally put into his campaign fund.

 “You take a look in terms of what would be a reasonable compensation package, OK?” Johnson said this week. “It’s a private business. I’ve complied with all the disclosure laws, and I don’t have to explain it any further to someone like you.”

And who is this “someone like you” that Ron Johnson doesn’t have to explain himself to? A reporter asking a legitimate question.

 

H/t to Brian Beutler at TPM

PFAW

Delegate Norton provides approps update, calls on her constituents and DC’s supporters to rally tomorrow

DC Delegate Eleanor Holmes Norton had good news and bad news for us after yesterday’s meeting of the House Appropriations Committee.

Today, the House Appropriations committee rejected an amendment to strike the abortion rider from the fiscal year 2012 D.C. Appropriations bill. Norton is pleased that with the critical help of a new coalition of national organizations, no new riders were added to bill, but she said the "city cannot be satisfied until we have returned to the clean D.C. appropriations we achieved when Democrats controlled the House."

While we escaped new riders, the bill is still a problem, and by no means is DC out of the woods on any issue.

Delegate Norton continues:

Norton said that the DC Vote rally is especially timely because the D.C. appropriations bill was passed by the full appropriations committee today and is headed to the House floor with a prohibition on city spending for abortions for low-income women, which must be removed.

"Saturday's rally will make history and serve notice that all branches of government are responsible for protecting the District's rights to local self-governance, particularly its right to spend local funds as it sees fit," said Norton. Saturday will mark the first time I have seen residents and national organizations alike, assemble at the White House to call on an administration to step up to help protect the city's home-rule, and Saturday may well be the first time that a rally has been designed not only for protest, but for fun for all ages, complete with musical performances, poster face-making, and the like. Our families are enthusiastic supporters of democracy for D.C., but those with kids have trouble coming to rallies. A Saturday of fun and protest will be perfect for kids, parents, and the rest of us."

Please join PFAW, Delegate Norton, DC Mayor Vincent Gray, DC Vote, and rally sponsors at tomorrow’s White House Rally for DC Democracy.

Look for our signs and the PFAW and AAMIA logos!

PFAW

Court Lets Corporations Off the Hook For Failing to Warn of Their Dangerous Drugs

The second of the two business-friendly decisions issued by the Corporate Court today was PLIVA v. Mensing, a case involving a woman seriously injured by the generic drugs she took. Since the manufacturer knew that the risks were much greater than had been believed at the time the FDA approved its labeling, she sued in state court over its failure to warn of those risks. Today, the five conservatives ruled that she has no right to file such a lawsuit.

All prescription drugs must have warning labels that are approved by the FDA. Under a recent precedent, if a brand-name drug manufacturer fails to warn consumers of a known risk not on the label, it cannot avoid being sued in state court simply by saying its label was okayed by the FDA. Today's case was similar, except in this case it was a generic drug maker, calling into play a separate federal law that requires generics to use the same warning labels as brand-names.

Gladys Mensing developed a severe and irreversible neurological disorder as a result of her long-term use of a generic drug. At the time, the label indicated that the risk of a disorder of the type she developed was about one in 500 patients. However, according to Mensing, it turned out that the actual incidence was much higher, perhaps as high as one in five patients. Despite mounting evidence that the label greatly understated the risks, none of the companies that manufactured the drug proposed that the FDA modify the warning label.

According to the majority opinion, written by Justice Thomas, the generic drug maker cannot be sued in state court for failing to warn consumers because that state law is preempted by the federal "same label" law. They claimed that the company could not have changed its label without violating federal law. But further than that, they had no obligation to ask the FDA to update the label for the drug (a change that, if adopted, would have applied to the brand name and then, by extension, to the generic). Even if the generic drug maker had gone to the FDA, it could not have changed the label itself until granted permission by the federal government, so Ms. Mensing could not have been warned as required by state law. Compliance with both state and federal law is impossible, according to the majority, so the federal law must preempt the state one under the Supremacy Clause of the United States Constitution.

Justice Sotomayor's dissent (joined by Ginsburg, Breyer, and Kagan) harshly criticized Justice Thomas's reasoning. We do not know if it would really have been impossible for the generic drug manufacturer to have complied with state law by getting the FDA to approve a label change in a timely manner, because it did not even try. Justice Sotomayor writes:

We have traditionally held defendants claiming impossibility to a demanding standard: Until today, the mere possibility of impossibility had not been enough to establish pre-emption.

...

The Court strains to reach [its] conclusion. It invents new principles of pre-emption law out of thin air to justify its dilution of the impossibility standard. It effectively rewrites our [2009] decision in Wyeth v. Levine, which holds that federal law does not pre-empt failure-to-warn claims against brand-name drug manufacturers.

So as of today, the ability of a victim to collect under state law for failure to warn of a prescription drug's dangers depends on happenstance: whether the pharmacist happened to fill the prescription with a brand name or a generic.

Congress has acted over the years to make low-cost generics more widely available to the American people. Surely a result like today's was not its intent.

PFAW