Justice Scalia on the Press



that in a recent speech Justice Scalia criticized press reporting on the Supreme Court:

Scalia said news organizations often fail to focus on the text of the laws the court interprets, citing accounts of last month’s 8-1 decision that made it harder for consumers to sue makers of federally approved medical devices.

He singled out for criticism a New York Times editorial on the case headlined “No Recourse for the Injured.”

The media often make it appear as though the court is reaching policy judgments on its own rather than basing its decisions on the text of the law at issue in a case, Scalia said.

The decision in question is Riegel v. Medtronic.  I looked at the stories in the New York Times , the Washington Post , and the L.A. Times .  The N.Y. Times and Post stories say accurately that the Court held against the plaintiff because it found that a 1976 federal law preempted state common-law tort claims.  The Post quotes a professor who says that the court engaged in a “narrow, textual interpretation” of a federal statute.  Neither of the stories says that the Court decided on policy grounds that federal regulation is superior to state regulation, though both gave a flavor of the political background of the rulings (accurately, I think).

The L.A. Times story is fully consistent with Scalia’s charge.  It’s dreadful.  It says nothing about the law except: “the court read federal law broadly to protect companies from juries and state regulators.”  The reporter provides no evidence that this is true.

However, the NYT editorial is not as bad as Scalia says.  Although certainly not a model of careful legal analysis, it correctly says: “The court’s decision hinged on whether the Medical Device Amendments of 1976 - which gave the F.D.A. the prime responsibility for regulating medical devices - pre-empted the right of injured patients to sue for damages in state courts.”

The offending language seems to be:

The court’s majority opinion, written by Justice Antonin Scalia, stressed that intricate medical devices go through a rigorous assessment process in which F.D.A. experts balance their potential risks and benefits while a lay jury simply looks at the possible damage done to a patient by a device and is not concerned with its benefits to other patients.

Justice Scalia’s faith in the F.D.A. far outstrips our own. The supposedly expert and rigorous reviewers at the F.D.A. are hardly infallible. They may approve marketing of a device based on questionable evidence and they are notoriously derelict about removing dangerous products once they are on the market.

This does sound as though the Times is accusing Scalia of making a policy judgment, namely, that national regulation by the FDA is superior to state common law regulation, and one can understand Scalia’s irritation – how does the Times know that Scalia has “faith” in the FDA (I suspect that, in fact, he doesn’t have much faith in the FDA)?  Scalia would reply that preemption is plain on the face of the text.

But how one reads the text of a statute depends on what one thinks Congress was trying to accomplish, and it is hard for an interpreter to avoid assuming that Congress was trying to implement good policy unless the statute plainly contradicts that assumption.  This type of thinking is ubiquitous in judicial decisions, and, in my view, it can be found in the majority opinion in Medtronic as well, as Justice Steven notes in his separate opinion :

There is nothing in the preenactment history of the MDA suggesting that Congress thought state tort remedies had impeded the development of medical devices. Nor is there any evidence at all to suggest that Congress decided that the cost of injuries from Food and Drug Administration-approved medical devices was outweighed “by solicitude for those who would suffer without new medical devices if juries were allowed to apply the tort law of 50 States to all innovations.” Ante, at 13 (opinion of the Court). That is a policy argument advanced by the Court, not by Congress.

Can the Times editorial be blamed for echoing the judgment of Scalia’s colleague?

See Dan Slater’s post for more.