PUNITIVE DAMAGES AND...

PUNITIVE DAMAGES AND LESSONS ABOUT THE COURT. The Supreme Court today will hear oral arguments in Philip Morris USA v. Mayola Williams. The case concerns a $79.5 million punitive damage claim against Phillip Morris that was upheld by the Oregon Supreme Court. (See here and here for more background.) There's a good chance that the Oregon Court's decision will be reversed based on a Kennedy's opinion in State Farm v. Campbell, which discovered a limit against virtually all punitive damages that "awards exceeding a single-digit ratio." Pragmatism is one thing; inventing a right against punitive damage awards that are inconsistent with the Base 10 numbering system (or, in other words, finding a constitutional significance in the number of fingers on the human hand) is quite another. This case should remind us that, despite all of the attention given to hot-button social issues, the courts are also likely to be a major player in the Republican battle to ease restraints against businesses who violate the law by reducing the incentives and efficacy of lawsuits.

The punitive damage cases also have a couple of general lessons about the Court. State Farm was joined by all of the justices usually associated with the Court's "liberal" wing except Ginsburg, but Thomas and Scalia (as they have in all of these case) dissented. "Moderate" apologists for Alito like Stuart Taylor claimed that because Alito is more pragmatic and less interested in grand theory than Thomas or Scalia, he would also be more moderate. But this is completely wrong; the (admittedly very inconsistent) commitment of Thomas and Scalia to broad theories of jurisprudence means that they will sometimes reach "liberal" results that Alito and Roberts will not. If you have left-liberal constitutional commitments, in a death-is-not-an-option game you'd rather have Scalia than Alito on the Court, and I would place a significant wager that Alito and Roberts will vote to strike down the damage judgment here, while Thomas and Scalia certainly won't. Second, it's important to remember that while we think of Justices Stevens and Souter as "liberals" they're really old-school, country club Republicans; they only looking like liberals because of how much the Republican Party has shifted to the right. There's no liberal in the mold of William Brennan or William O. Douglas on the current Court.

--Scott Lemieux

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