Oliver Wendell Holmes commented in his book “the Common Law,” that judicial decisions often originate outside the law in the “inarticulate premises” which judges bring from their life experience to their decisions. Few cases demonstrate this more vividly than Wyeth v. Levine , —U.S.—, 129 S.Ct. 1187 (2009), in which both “liberal” and “conservative” judges abandoned deeply held constitutional views to reach a result which, one may surmise, reflected their underlying “inarticulate” view of the facts, their “empathy” as it were, rather than a strict application of the law.

How else to explain the division on the Court in Wyeth in which the majority “liberals” (Justices John Paul Stevens, Ruth Bader Ginsburg, Stephen Breyer and David Souter) turned their backs on the Supremacy Clause of the Constitution upon which liberal justices had relied so often since the 1930s to restrain state legislatures in favor of congressional power, while the dissenting conservatives (Justices John Roberts, Samuel Alito and Antonin Scalia), the champions of states’ rights, relied upon the Supremacy Clause to repudiate state law and the jury verdict in the Wyeth case?

The case involved the tragic amputation of the arm of a young musician as the outcome of the injection of Phenergan, a Wyeth antinausea drug, allegedly as the result of Wyeth’s failure to follow state law warning of the possible danger of such an injection. After a Vermont jury verdict of $7.4 million based on the state law, Wyeth appealed in federal court on the ground that the federal Food, Drug and Cosmetic Act (FDCA) preempted plaintiff’s claims under state law since (a) its warning label had been approved by the Food and Drug Administration (FDA) and (b) the state laws and regulations were in conflict with federal law and federal law was paramount.

The majority opinion upholding the verdict was written by Justice Stevens, joined by Justices Ginsburg, Kennedy and Souter with Justices Breyer and Thomas writing concurring opinions. Justice Stevens stressed that congressional law and departmental regulations failed to indicate the necessary congressional intent to preempt state law. The dissent was written by Justice Alito, joined by Chief Justice Roberts and Justice Scalia, who found ample evidence of congressional intent to preempt the field of drug warnings as well as evidence of intervening negligence by a nurse who disregarded both state and federal warnings.

But it is the two concurring opinions which dramatically expose the liberal/conservative inconsistency in the Court’s division; Justices Breyer and Thomas each use their concurring opinions to salvage from the final division their sharply differing views of the Supremacy Clause (although Justice Thomas is the only justice who is consistent throughout, joining the majority liberals in voting against any use of his bete noire, the Supremacy Clause, thereby preserving the Vermont award).

Thus, Justice Breyer asserts his fidelity to that clause, in spite of its apparent rejection, by stressing the majority’s caveat (“…we recognize that some state-law claims might well frustrate the achievement of congressional objectives”) while Justice Thomas condemns nearly all of the Court’s previous “preemptive jurisdiction” emphasizing his and the Framers’ commitment to “a decentralized government” in which federal power is strictly limited to the 18th century text of the Constitution.

Thus, both Justices Breyer and Thomas are keenly aware that critical ideological positions are in jeopardy in the Wyeth decision and each wants to be certain that the votes for and against the plaintiff-amputee do not create a precedent which could be used in future cases more fundamental to the delicate balance between federal and state power. Similarly, the majority and dissenting opinions by Justices Stevens and Alito, respectively, take some pains to preserve the basic ideological positions of each—in the case of Justice Stevens by specifically preserving the power of the Court to curtail future state interference with federal drug policy and Justice Alito by seeming to limit the application of the Supremacy Clause to an actual conflict between state law and the operation of the federal act.

These somewhat strained explanations reveal the fact that Wyeth was painful to both ideological wings of the Court, i.e., liberals wishing to preserve the federal supremacy achieved by Commerce Clause rulings under the New Deal and Warren courts with conservatives seeking to brake congressional control over traditionally local matters. Each side attempted to preserve its core position in the face of apparent inconsistency.

How then to explain the outcome? Is it constitutional heresy to suggest that the majority was influenced by “empathy” for the plight of a young musician who tragically lost her right arm and her career through no fault of her own and whose recovery of significant damages would be lost on a technicality? Or is it outrageous to suppose that the minority conservative wing, following its own empathetic instincts, was persuaded by a major drug company doing its best, in a medically complex area, to follow specific federal regulations for its labeling, or even to suggest that the conservative justices reflected (empathetically?) a subtle animosity by the legal establishment against the high-flying negligence bar and its seemingly outsize jury verdicts? We don’t know—the “premises” are indeed inarticulate, but the clues are there.

Justice Alito certainly put his finger on the underlying factors which he believed drove this litigation and its final outcome: “Tragic Facts,” he said at the very outset of his opinion, “make bad law.” (129 S.Ct. at —; presupposing, of course, that the majority opinion was indeed bad law).

There are some indications that the dissent was correct, that the national interest is best served when drug warnings are uniformly regulated by one national agency and where major drug companies, which alone can provide the huge resources necessary to formulate new medications, must have some certainty as to the critical rules for drug labeling.

But again, it is plausible that the majority justices, although committed to Commerce/Supremacy Clause jurisprudence (see e.g., Justice Souter’s dissent in United States v. Lopez, 514 U.S. 549 (1995)), were reluctant to deny compensation to this young victim after years of litigation on a fine point of constitutional law.

In a less “tragic” case, the justices seem to have done the opposite, that is sacrificing their underlying sympathies to preserve an ideological position. In Gonzales v. Raich , 545 U.S. 1 (2005), the Court invalidated California’s medical marijuana law, thereby preventing a cancer patient from using marijuana as part of her treatment. Liberals on the Court, relying on the historic combination of the Commerce and Supremacy Clauses, wrote the decision, using the federal Controlled Substances Act to preempt California’s more “liberal” approach while conservatives (except Justice Scalia, whose own premises on recreational drug use may have come into play) would have permitted such use, deferring to the state’s right to legislate upon an essentially local concern. The grouping of liberal and conservative justices on either side offers a clue as to the forces at work in that less dramatic case—plainly the desire on both sides to preserve a significant ideological position even though in the end liberals would deny marijuana use and conservatives would permit it.

President Barack Obama recently tossed a controversial theme into the naming of a successor to Justice Souter by citing the quality of “empathy” as one of his requirements for a successor.

Whatever else that standard means, it would include the inclination in a U.S. Supreme Court justice to look to the end effect of a ruling in order to ascertain what actually happens to a litigant as the result of his or her vote. Whether this makes for sound constitutional law or not, it is part of the “inarticulate premises” which all judges carry within their respective psyches and which tend to emerge from time to time in their decisions.

We can be certain that we will hear a great deal about “empathy” in the days to come and the Wyeth decision may well be revisited in the process.

Jack Edward Bronston, a former partner with Davidoff Malito & Hutcher, retired in 2005. He served as a New York state senator from 1959-78.