487 U. S. 500
June 27, 1988
A helicopter manufactured by a military contractor crashed, and the pilot died due to design flaws. The pilot’s family wanted to bring a tort action against the manufacturer under Virginia law. The manufacturer contended that the Virginia law was preempted, and that it had immunity from any tort suit because of its status as a government contractor. This government contractor defense had never been explicitly established by the Supreme Court before, and it was now their job to figure out if it existed or not.
The Court ruled 5-4 that the manufacturer was protected by government contractor immunity. Scalia began by explaining that in a few legal areas of “uniquely federal interests” the courts had the ability to fashion federal common law that could preempt state law. Scalia said that the efficient operation of federal contracts was of sufficient importance to render it subject to the courts common lawmaking power. State laws could be preempted if their was a significant conflict between them and the government’s ability to cheaply contract.
A precise formulation of the immunity and range of preemption was needed. The Federal Tort Claims Act exempted from liability all discretionary functions of government employees. Therefore, Scalia reasoned that government contractors were immune from state laws if they manufactured products that reflected the specifications given to them by the government. The pilots family said that the lower court had not used this precise formulation, but Scalia responded that a jury would probably not rule differently if the lower court had.
Brennan, joined by Marshall and Blackmun, was outraged. The majority violated Erie by fashioning common law that was not necessary at all. The burdens suffered by the government when its contractors got sued were minimal, and the losses to those victimized by defective product designs was great. Brennan said that precedents never intimated that contractors ought to have immunity, and instead suggested that they were perfectly liable to state law claims. He argued that the FTCA had no real relevance to the issue at hand. Simply put, the majority was creating immunity without any green light from Congress, and without any compelling policy reasons to do so. Stevens, in a short dissent of his own, also argued that any contractor immunity should be imposed by Congress and not the courts.
I know I must sound like a broken record by now, but I’ll say it yet again: I hate extensive tort liability, but I hate governmental immunity even more. This decision is very frustrating. All term long, there were less than ten occasions when the solid bloc of 5 conservatives beat the solid bloc of 4 liberals. Why did this stupid ruling have to be one of the rare wins, instead of Mills or Liljeberg?