American Enterprise Institute

Justice Thomas, preemption, and state net neutrality

In late October, the Supreme Court quietly declined to review Lipschultz v. Charter Advanced Services, an Eighth Circuit decision that preempted state regulation of fixed Voice-over-Internet-Protocol (VoIP) service. While concurring in the denial of certiorari, Supreme Court Justice Clarence Thomas wrote separately to challenge the underlying theory of federal preemption, noting that “it is doubtful whether a federal policy — let alone a policy of nonregulation — is" sufficient to establish conflict preemption.