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Smoke RingsHow to fight big tobacco without ever talking about the health risks of smoking.

By Dahlia LithwickPosted Monday, Oct. 6, 2008, at 6:34 PM ET

(Continued from page 1)

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The tobacco company is arguing that the Maine lawsuit must be dismissed because it is both "expressly" pre-empted and "impliedly" pre-empted, although when Olson is invited by Justice Scalia to address the implied pre-emption argument, he says, very frankly, "I'd like to spend no time on the implied pre-emption argument," to which Scalia laughs, "Good idea!"

David Frederick, representing the Maine smokers, opens with the claim that the Labeling Act was never intended to "immunize cigarette makers for the false statements they made in violation of anti-deception in the marketplace rules." But he is roughed up immediately by Chief Justice John Roberts and Justice Samuel Alito. Then David Souter, too, begins to pound Frederick on the fact that the only way his clients can realistically prove damages is by linking smoking and health, and that's the kind of argument pre-empted by the federal rule. Frederick tries manfully to argue that the issue here isn't the "health" distinction between regular and light cigarettes but a "difference in value." But Souter appears unconvinced that consumers would value low-tar over regular cigarettes for any but health reasons. Breyer's urgent nodding suggests Frederick may have lost him on this "smoking and health" point as well. Justice Anthony Kennedy says outright to Frederick: If it's "your position that this suit is not based on a link between smoking and health, I'm going to have difficulty in accepting your position in this entire case. Do you have a secondary position?"

Things start getting weird when Douglas Hallward-Driemeier, assistant to the solicitor general, rises to argue only the "implied" pre-emption part of the case on behalf of the smokers. First the chief justice busts his chops for taking a position on only 50 percent of the issues in the case and then for arguing a narrow position that—as Roberts sees it—"Mr. Olson gave up in his opening argument." Then Hallward-Driemeier has to pry an enraged Alito out of his hair when Alito begins accusing the FTC of "tacitly approving" low-tar labels for 40 years, long after it became clear they were as dangerous as the alternative. Alito accuses the federal government of single-handedly "creating this whole problem" by passively approving the low-tar advertisements and having "misled everybody who's bought those cigarettes for a long time." When it looks like Hallward-Driemeier is ready to crawl under counsel table, Scalia—who's clearly been studying the Katie Couric "gotcha" tapes—begins to vaguely threaten that bad things will happen to him if the justice discovers the SG's office has taken a contrary position on the express pre-emption question in an earlier case.

Everyone gets gotcha-ed at least once this morning. Justice John Paul Stevens nabs Olson for citing an Illinois case in which it turns out there was no federal pre-emption. The chief justice triumphantly gets Frederick to admit he misspoke when asserting that the smokers hadn't sought injunctive relief in this case. Then Olson has to explain in his rebuttal that he hadn't exactly abandoned the implied pre-emption argument; he just had better things to do. And when all the smoke clears, it looks to be another good day for big tobacco and another bad day for the folks harmed by it. Big tobacco blames the FTC for its deceptive claims. The FTC blames big tobacco for its deceptive claims. And the Marlboro Man tips his hat and rides off into the sunset.