Redstate

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As Peter Lattman at the WSJ Law Blog notes, on October 31, the U.S. Supreme Court "will hear oral arguments in a case challenging a $79.5 million jury verdict against Philip Morris, taking up the punitive damages issue for the first time since 2003."

This case has implications beyond the dispute between the parties involved, and even beyond the future liability risks of deep pocket defendants. It will tell us what Chief Justice Roberts and Justice Alito believe about substantive due process and stare decisis.

One of the two main issues in the Philip Morris case is the appropriate amount of punitive damages in any given case and whether the due process clause of the Fourteenth Amendment to the U.S. Constitution limits such damages. The due process clause states: "nor shall any state deprive any person of life, liberty, or property, without due process of law." Justices Scalia and Thomas rightly understand this clause to be a guaranty of certain procedural rights. As long as you are afforded due process, a state may deprive you of life, liberty, or property. Other justices, however, have used this clause to create new substantive rights, what has been termed substantive due process. As a result, we now we have the "constitutional right" to abort pregnancies (thus killing children) and engage in sodomy, despite that there is no textual or historical basis for such rights.

In two cases over the past decade, BMW v. Gore and State Farm v. Campbell, the Supreme Court has used the notion of substantive due process to create another new right: the right to not have imposed on you "excessive" punitive damages. (One problem--as it often is in substantive due process cases--is that the Constitution does not really address this issue, so the Court has had a difficult time setting forth standards on what is an excessive award.)

As Justice Scalia wrote in his dissent, joined by Justice Thomas, in Gore:

I do not regard the Fourteenth Amendment's Due Process Clause as a secret repository of substantive guarantees against "unfairness"--neither the unfairness of an excessive civil compensatory award, nor the unfairness of an "unreasonable" punitive award. What the Fourteenth Amendment's procedural guarantee assures is an opportunity to contest the reasonableness of a damages judgment in state court; but there is no federal guarantee a damages award actually be reasonable.

This view, which adheres to the text of the Due Process Clause, has not prevailed in our punitive damages cases. When, however, a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect--indeed, I do not feel justified in doing so.

(Internal citations omitted.)

Stare decisis is what Justices O'Connor, Kennedy, and Souter hung their hat on in 1992's Planned Parenthood v. Casey, affirming the central holding of Roe.

So Chief Justice Roberts and Justice Alito have three main choices in deciding what to do with the punitive damages award against Philip Morris:

1. Agree with Justices Scalia and Thomas and vote to overturn the principles stated in Gore and Campbell, allowing the legislature to maintain its proper role to decide whether to place caps on punitive and other non-economic damages. This would give the Court five votes to overturn this line of cases, as the liberal Justice Ginsberg agrees with Scalia and Thomas on this issue.
2. Adhere to the ode to stare decisis that O'Connor, Kennedy, and Souter set forth in Casey.
3. Find in the due process clause a right to not be subject to excessive civil damages.

If Roberts and Alito choose option one, there is a good chance that there are now four votes against Roe, as modified by Casey. Without O'Connor, perhaps the four could convince Kennedy to join them to create a majority. If, on the other hand, Roberts and Alito choose either options two or three, Roe is safe.

This is why the Philip Morris decision will be important beyond its facts.

Strangely, Adam Cohen, a member of the New York Times editorial board, in a column urging the Court to uphold the award, largely ignores the dissents of Thomas and Scalia in the Gore and BMW cases. He instead labels Justices O'Connor and Kennedy as "conservative," and writes of their apparently hypocritical opinions, in light of the fact that "conservative" justices normally eschew judge-made rights. Cohen should read O'Connor's and Kennedy's body of work more closely. They are not conservative, but rather what I will charitably label as pragmatic. Which means you can almost never tell where they'll come out. (Unfortunately, former Chief Justice Rehnquist failed to join the dissents of Thomas and Scalia.)

Cohen's omission leads to errors on the part of at least two liberal bloggers (Amygdala and donnatella), as they rail against "conservative activist judges," ignoring that the Court's actual conservatives voted against the decisions and the Court's liberals, save Ginsberg, voted in favor of the new rights in favor of big corporations.

Elsewhere, De Novo gets what is going on, but expressly prefers the legislative approaches of O'Connor, Kennedy, Stevens, Souter, and Breyer. And Ted Frank at PointofLaw.com notes that Cohen made another error in his NYT column.

Cross-posted at Antioch Road