Bruesewitz v. Wyeth: As Sotomayor Comes Out Strong Against Pro-Corporate Judicial Activism, Scalia May Have Met His Match

There is something wearily predictable about Justice Scalia’s straitjacket reinterpretation of the National Childhood Vaccine Injury Act of 1986 (NCVIA) to eliminate the possibility of injured families suing manufacturers for design defects in vaccines. Justice Scalia brings his trademark sleight-of-hand to the task of explaining why the law does not provide for citizens what it obviously does provide and offers his well-developed rhetorical polish and high-minded sarcasm as a way to assure everyone that there is no reasonable alternative to his vigorous rewrite of the law in the interest of corporate immunity. Ah, another federal law, another judicial gloss for the corporations: business-as-usual on the Roberts Court.

What is startling and refreshing about this decision is that Justice Scalia has finally met his match in Justice Sonia Sotomayor, who comes out swinging hard in her powerful dissenting opinion against this aggressive pro-corporate judicial activism and impressionistic rewrite of the statute at hand. It seems that Justice Sotomayor is finding her voice defending popular legislation and democratic rights against the finger-painting and cut-and-paste rewrites of legislation that have become the specialty of free-wheeling conservative Justices.

Consider the numerous hard and effective punches Justice Sotomayor’s throws back at Justice Scalia here, quoting Webster’s Third New International Dictionary, the “plain text and structure” of the statute, and the essential canons of statutory construction, to show who the real “judicial activists” are:

She starts off by blowing the whistle on Justice Scalia’s substitution of his political views for those of Congress: “In holding that the . . . Act pre-empts all design defect claims for injuries stemming from vaccines covered under the Act, the Court imposes its bare policy preference over the considered judgment of Congress.”

After a masterful explanation of the Act and why it permits causes of action related to design defects, Justice Sotomayor writes: “In contrast to the interpretation . . . set forth above, the majority’s interpretation does considerable violence to the statutory text, misconstrues the legislative history, and draws the wrong conclusions from the structure of the Vaccine Act . . .”

And, to leave no doubt about what has just taken place to rob the Bruesewitz family--whose daughter suffered more than 100 seizures after being vaccinated with the DTP vaccine made by Lederle Laboratories--of its fair day in court, she concludes that “whatever the merits of the majority’s policy preference, the decision to bar all design defect claims against vaccine manufacturers is one that Congress must make, not this Court.”

It’s good to know that Justice Sotomayor at least has woken up to the fact that we are headed at a high speed right back into a Lochner-era jurisprudence where conservative Justices work overtime to undo progressive legislation and substitute their own authoritarian judgments for democratic decision-making. The combination of this judicial assault on popularly enacted statutes with the decision in the Citizens United case to arm private corporations with political campaign spending rights under the First Amendment makes for a pretty scary polity and economy. We need more judges and Justices like Justice Sotomayor to stand up for democracy and the rule of law.

Jamie Raskin is a Maryland state senator, constitutional law professor at American University's Washington College of Law, and Senior Fellow at People For the American Way.

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