Boyle as Constitutional Preemption

Bradford R. Clark*

During his remarkable tenure on the Supreme Court, Justice Antonin Scalia was widely acknowledged to be the Court’s leading proponent of textualism and originalism¹—methodological commitments that instruct judges to interpret legal texts according to what a reasonably skilled user of language would have understood the text to mean at the time of its adoption. These commitments generally led Justice Scalia to disfavor doctrines—such as federal common law—that license judges to exercise broad discretion unmoored from federal constitutional or statutory texts.² Such doctrines are in tension with separation of powers and federalism because they enable judges to encroach upon the constitutional domain of the political branches and the states. Justice Scalia’s opinion for the Court in Boyle v. United Technologies Corp.³ arguably departed from his usual preferences by recognizing a government contractor defense as a matter of federal common law.⁴

Numerous critics have pointed out the apparent inconsistency between Boyle and Justice Scalia’s broader methodological commitments. Whatever one thinks of the Court’s opinion, however, the actual decision in Boyle finds substantial support in the text and structure of the Constitution. When the executive branch contracts to procure specialized military equipment to meet its needs, it does so pursuant to constitutional and statutory authorization. It is these underlying constitutional and statutory provisions—not federal common law rules—that preempt a state’s efforts to deter or impede the performance of such contracts. Understanding Boyle as a case of constitutional preemption avoids reliance on disfavored doctrines of judicial discretion such as federal common law.

This Essay proceeds in three parts. Part I summarizes the Supreme Court’s decision in Boyle and describes both the majority and dissenting opinions. Part II recounts various criticisms of Justice Scalia’s opinion in Boyle, particularly the claim that he abandoned his deeper commitments to textualism, originalism, separation of powers, and federalism. Part III offers an alternative rationale for the decision in Boyle grounded in constitutional preemption, and explains why this approach is more consistent with Justice Scalia’s broader methodological and constitutional commitments.

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© 2017 Bradford R. Clark. Individuals and nonprofit institutions may reproduce and distribute copies of this Essay in any format at or below cost, for educational purposes, so long as each copy identifies the author, provides a citation to the Notre Dame Law Review, and includes this provision in the copyright notice.

*William Cranch Research Professor of Law, George Washington University Law School. I dedicate this Essay to Justice Antonin Scalia for whom I clerked during the October 1989 Term. I thank A.J. Bellia, Bill Kelley, John Manning, and Amanda Tyler for their insightful comments and suggestions, and Zachary Tyree for excellent research assistance.

1 See William K. Kelley, Justice Antonin Scalia and the Long Game, 80 Geo. Wash. L. Rev. 1601 (2012).

2 See John F. Manning, Justice Scalia and the Idea of Judicial Restraint, 115 Mich. L. Rev. 747 (2017) (book review).

3 487 U.S. 500 (1988).

4 For an earlier analysis of Boyle, see Bradford R. Clark, Federal Common Law: A Structural Reinterpretation, 144 U. Pa. L. Rev. 1245, 1368–75 (1996).