The Supreme Court's Philip Morris decision.

The law, lawyers, and the court.
Feb. 21 2007 6:03 PM

Up in Smoke

The Supreme Court loses its unanimity.

Marlboro cigarettes. Click image to expand.
Smoke? Smoke?

The Supreme Court issued two 5-4 opinions Tuesday—right on cue for an essay I'd just written praising Chief Justice John Roberts for his efforts to achieve unanimity and make the court more than the sum of its membership. The Roberts honeymoon may be over. These split decisions, however, should not detract from the mission of the chief justice to have the court speak with one voice. The importance of doing so can be illustrated by the 5-4 opinion of the week that got noticed—the decision to set aside a $79.5 million punitive-damage award in a suit brought by a smoker against Philip Morris.

When the justices work out their disagreements before they write opinions, unanimity has the potential to supply what practicing lawyers (and their clients) most often need—a clear rule. Philip Morris USA v. Williamssupplies the opposite. It holds that the constitutional right to legal due process forbids a state from using punitive damages to punish a defendant for injury inflicted on strangers to the litigation. Fair enough, but oh wait ... injuries to strangers to the litigation can be presented to the jury to determine whether a defendant's conduct was reprehensible enough to warrant the punitive damages. In other words, due process precludes a jury's consideration of harms to people who aren't party to the suit, except to the extent that due process permits and invites the consideration of those harms.

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In case you think I'm making this up, here are the court's words: "evidence of actual harm to nonparties can help to show that the conduct that harmed the plaintiff also posed a substantial risk of harm to the general public, and so was particularly reprehensible ... however, the jury may not go further and use punitive damages to punish a defendant directly on account of harms it is alleged to have visited on others." This is not an example of clarity. It is, instead, what happens when you're lucky enough to be in a position to delegate to others the implementation of unworkable rules. As the Oregon Supreme Court had already noted, if a jury cannot punish for harm to people who aren't part of the litigation, then it is difficult to see why it may consider that harm at all. How, asked Oregon, could a jury consider harm to others and yet withhold that consideration from the punishment calculus? It's a good question. The Supremes, however, answered with a rather paternalistic "just do it."

Philip Morris is notable for reasons beyond its clear unclarity. Consider how the court split. Before this opinion, no one knew where Roberts and Justice Samuel Alito would line up on this issue. Limits on punitive damages may be a sound idea, but it is a bedrock conservative principle that legislatures, not judges, make these policy calls. For originalists who look to the Constitution's text, the discovery of limits on punitive damages in the due process clause is of dubious pedigree. Due process, after all, is not due substance. It might have been supposed that advocates of judicial restraint—er, umpires hoping not to be noticed during a ballgame—would be uncomfortable signing onto this judicially inventive enterprise, no matter how good an idea punitive damage limits are as a matter of policy.

Yet Roberts and Alito were in the limits-imposing majority (along with Stephen Breyer, Anthony Kennedy, and David Souter). One small consolation, perhaps, is that the majority opinion proclaims that it is not actually deciding whether the award against Philip Morris "is 'grossly excessive,' " but only that the Constitution's procedural limits were not observed. This is of course a legal fig leaf, but hey, that's what fig leafs are for.

Meanwhile, the court's diehard originalists, Antonin Scalia and Clarence Thomas, dissented, as did the more liberally minded Ruth Bader Ginsburg. Ginsburg—who should be made an honorary member of the Federalist Society for her dissent—wanted to accord "more respectful treatment to the proceedings and dispositions of state courts." Thomas (but curiously not Scalia) emphasized that the Constitution as written (if not as interpreted) does not constrain the size of punitive-damage awards.

Justice John Paul Stevens also dissented, though all by his lonesome. He seemed simply interested in upholding a large award against a corporate bad guy. "It is far too late in the day to argue that constitutional due process guarantees fair procedure and imposes no substantive limits on a state's lawmaking power," he wrote. He also made the common sense point that "a murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim."

Is it disappointing that in this instance Roberts and Alito boarded the Constitution-can-mean-anything train? Yes. Every disregard of principle here is likely to be played back elsewhere. Well, at least neither Roberts nor Alito actually wrote for the majority. And nearly $80 million in punitive damages was an absurd sum, even for what Stevens described as "a campaign of deceit in distributing a poisonous and addictive substance to thousands." Stevens, of course, was referring to big tobacco, not the majority's ill-considered, but equally deceptive, extra-constitutional rationale.

Douglas Kmiec is a professor of constitutional law at Pepperdine University.

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