Because it imposed duties upon the drug manufacturer that were inconsistent with the manufacturer's duties under federal law, Justice Alito wrote, the New Hampshire law was necessarily preempted by federal law. State law required the company to change its label, he noted, but federal law, and the Court's recent precedent, required that it not do so. "When federal law forbids an action that state law requires," Justice Alito wrote, "the state law is without effect." Here is the link to the ruling.

It generated not one but two dissents. To Justice Stephen Breyer, it was unclear whether the Food and Drug Administration even wanted to have federal law preempt state law to favor the drug manufacturer and penalize Bartlett. And the company itself had a choice. It could "comply with both" federal and state law "either by not doing business in the relevant state or by paying the state penalty, say damages, for failing to comply with, as here, a state-law tort standard." What does Bartlett mean? In her own dissent, Justice Sonia Sotomayor explained:

The Court appears to justify its revision of respondent Karen Bartlett's state-law claim through an implicit and undefended assumption that federal law gives pharmaceutical companies a right to sell a federally approved drug free from common-law liability. Remarkably, the Court derives this proposition from a federal law that, in order to protect consumers, prohibits manufacturers from distributing new drugs in commerce without federal regulatory approval, and specifically disavows any intent to displace state law absent a direct and positive conflict.

UT Southwestern Medical Center v. Nassar



Which brings us, finally, to the Nassar case. It is a direct cross between the Vance and Bartlett cases -- it involves the workplace discrimination at the heart of Maetta Vance's case against Ball State Univerity and the federal jury verdict that was the centerpiece of Nancy Bartlett's case against the pharmaceutical manufacturer. Again, the Supreme Court limited corporate liability. And again it did so by turning an acknowledged remedial measure -- Title VII -- from a sword for plaintiffs into a shield for defendants.



There is no evident dispute that Naiel Nassar, a doctor "of Middle Eastern descent," was treated poorly at work. At least that is what a federal jury found when it awarded him $3.4 million in a discrimination case. In voiding this verdict, Justice Anthony Kennedy, writing for the Court's majority, ruled that the lower courts had applied a standard of review that was too generous to Nassar on the issue of causation. He hadn't sufficiently proved, the Court said, that he was retaliated against. Here is the link to the ruling.



In her dissent in Nassar, Justice Ginsburg again sought to defend the purposes of the federal anti-discrimination law. Against she cited EEOC scripture that broadened the interpretation of the "causation" standard Justice Kennedy narrowed. "It is strange logic indeed to conclude," she wrote, "that when Congress homed in on retaliation and codified the proscription, as it did in Title VII, Congress meant protection against that unlawful employment practice to have less force than the protection available when the statute does not mention retaliation."

What does the ruling in Nassar means? It means that federal anti-discrimination law suffered a double-blow at the Supreme Court today. Plaintiffs not only are limited in which "supervisors" they can point to, but also in the ways in which they can prove that they have been damaged by discrimination. And all three decisions here, taken together, mean that the Roberts Court has once again come to the rescue of business.