Preemption in the Rehnquist Court: A Preliminary Empirical Assessment

Abstract

This article presents an empirical overview of the Rehnquist Court's record on preemption. We examine the universe of preemption cases decided by the Rehnquist Court, rather than merely a sample of landmark cases. In deciding preemption cases, we find that the Court is particularly sensitive to whether or not a state is a party to the case and whether or not the Solicitor General takes an anti-preemption position. Lastly we examine the individual justices' votes in preemption cases, finding no consistent voting blocs among the justices, nor do we find that any individual justice consistently fills the swing vote position in close cases.