Conservatives Can't Be Trusted With The Constitution

Because, as Jack Balkin makes clear, they apparently don't really understand it.

Supreme Court Denies Philip Morris' Appeal

In a somewhat unusual move, the Supreme Court has declined to issue a ruling in Williams v. Phillip Morris, a case they already heard oral arguments on in December. It looks like the Supreme Court was not up to the task of wading through this particular minefield again. They declined to issue any sort of explicit standard for limiting punitive damages the last time around, only to have the Oregon Supreme Court re-affirm the previous judgment on "independent state grounds." If the Court was looking to limit punitive damages, there were only a couple of ways they could do it, either by rebuking the Oregon Supreme Court for doing an end-run around the Supreme's ruling, or avoiding that issue and tackling directly the ratio of punitive damages that they avoided addressing the last time around. Apparently the needle proved to be too difficult to thread, and the Court has now declined to weigh in on the matter of punitive damages at all. It's hard to imagine the issue being addressed by the Court anytime in the near future, though that might change if a case with friendlier facts and a tidier disposition comes along.

Supreme Court Rules Against Cigarette Makers

The U.S. Supreme Court has ruled that federal legislation that regulates the labeling of packages of cigarettes does not preempt state lawsuits over claims of deceptive marketing of "light" cigarettes (h/t Adam):

In a 5-4 split won by the court's liberals, it ruled that smokers may use state consumer protection laws to sue cigarette makers for the way they promote "light" and "low tar" brands.

The decision was at odds with recent anti-consumer rulings that limited state regulation of business in favor of federal power.

Altria Group Inc. argued on behalf of its Philip Morris USA subsidiary that the lawsuits are barred by the federal cigarette labeling law, which forbids states from
regulating any aspect of cigarette advertising that involves smoking and health.

Justice John Paul Stevens, however, said in his majority opinion that the labeling law does not shield the companies from state laws against deceptive practices. The decision forces tobacco companies to defend dozens of suits filed by smokers in Maine, where the case originated, and across the country.

People suing the cigarette makers still must prove that the use of 'light' and 'lowered tar' actually violate the state anti-fraud laws, but those lawsuits may go forward, Stevens said.

Philip Morris v. Williams Redux

Early last year the Supreme Court ruled against the plaintiff in a tobacco lawsuit against Philip Morris, holding that an Oregon state court erred in relying on harm to parties other than the plaintiff in determining the amount of damages that could be awarded. In doing so they neatly side-stepped the issue of exactly how much in punitive damages may be awarded under the U.S. Constitution. Here's what I said at the time:

... I'm not exactly sure how much of a victory for Philip Morris this was. It is at least possible that this case could be remanded all the way down to the state district court, where a jury could award the exact same amount of damages, and the state appellate and supreme court would uphold it.

So at this point I think it's premature to say what the fallout of this case will be (though of course pro-business groups are applauding the decision.) Nor does this say much for the Supreme Court's jurisprudence of punitive damages, as the the Court has definitely taken a step to the side as opposed to a step forward or backward.

I was half right. Instead of sending the case back to trial, the Oregon Supreme Court affirmed the trial court's ruling, this time on separate grounds that (they say) support the extent of punitive damages originally awarded. So now the Supreme Court, to which this latest ruling has been appealed, is in a bit of a bind:

Philip Morris appealed to the Supreme Court, arguing that the Oregon court had defied the high court’s 2007 ruling, and the justices took the case. “When I read that petition,” Justice Breyer said Wednesday, “I thought this is a run-around” by the Oregon court. But as the arguments unfolded, he said, “I’m not sure that I think that now.”

Justice Breyer and several of his colleagues seemed concerned by the implications of ruling for either side. If they were to side with Philip Morris, said Justice David Souter, “we implicitly have to say that the Oregon Supreme Court has to confront state law issues in a certain sequence,” that is, all at once. “What business do we have” getting so deep into the weeds of state civil procedure? he asked Stephen Shapiro, of Mayer Brown in Chicago.

On the other hand, affirming the Oregon court could invite state courts to drum up all kinds of state procedural bars to effectively nullify Supreme Court decisions.

Chief Justice John Roberts proposed a solution to the court’s dilemma. The court, he said, could decide to finally decide whether the Constitution permits a nearly 100 to 1 ratio of punitive to compensatory damages. “Why don’t we just do that?” he asked.

So the court must either second-guess the Oregon supreme court, affirm that court's holding and risk state defiance on other rulings, or as Roberts and the other conservatives almost certainly want to do, directly tackle the issue of how much in punitive damages the Constitution permits. Clearly the conservatives would prefer the latter, as they'd almost certainly seek to limit the ratio of punitive to economic damages in cases like these (and reign in large punitive damage awards overall, in all cases like this.) Philip Morris would like the same, as reducing a punitive damage award to somewhere around only four or five or so times the amount of economic damages would completely eviscerate the ability of states to punish corporate malfeasance, especially for large companies like Philip Morris that rake in tnes of millions of dollars of profit in a week. So far the Supreme Court has been hesitant to wade directly into the matter, granting broad latitude in earlier punitive damage cases and relying on procedure to side-step the substantive issue in more recent ones. That may come to an end with any decision in this case.

Judges Are Not Good Historians

Or, more accurately, Supreme Court Justices are not inclined to be good historians, as this LA Times article explains:

This year the Supreme Court relied more than ever on history and the original meaning of the Constitution in deciding its major cases.

In doing so, however, the court has drawn criticism from some historians and legal experts who say the justices' readings of history were less than scholarly. And the justices sometimes disagreed sharply on the historical record, demonstrating that divining the original meaning of the Constitution is no small matter.

The court's new focus on history drew the attention -- and some snide blog postings -- of legal historians who faulted the justices for selectively citing cases and writings to bolster their favored view.

"Neither of the two main opinions in Heller would pass muster as serious historical writing," Stanford University historian Jack Rakove wrote on a blog called Balkinization.

Neither Scalia nor Stevens is a "competent historian," University of Texas at Austin professor Sanford Levinson wrote in another Balkinization posting. Their work is "what is sometimes called 'law-office history,' in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one suspects are predetermined positions."

Here's more from the Levinson post, which I read when it was published:

If one had any reason to believe that either Scalia or Stevens was a competent historian, then perhaps it would be worth reading the pages they write. But they are not. Both opinions exhibit the worst kind of “law-office history,” in which each side engages in shamelessly (and shamefully) selective readings of the historical record in order to support what one strongly suspects are pre-determined positions. And both Scalia and Stevens treat each other—and, presumably, their colleagues who signed each of the opinions—with basic contempt, unable to accept the proposition, second nature to professional historians, that the historical record is complicated and, indeed, often contradictory. Justice Stevens, for example, writes that anyone who reads the text of the Second Amendment and its history, plus a murky 1939 decision of the Court, will find “a clear answer” to the question of whether the Second Amendment supports a “right to possess and use guns for nonmilitary purposes.” This is simply foolish. Justice Stevens pays no real attention to a plethora of first-rate historical work written over the past decade that challenges this kind of foolish self-confidence, as is true also of Justice Scalia. There is no serious discussion, for example, of Saul Cornell’s fine book A Well-Regulated Militia: The Founding Fathers and the Origins of Gun Control, but many other examples could be offered, from various sides of the ideological spectrum.

Both Scalia and Stevens manifest what is worst about Supreme Court rhetoric, which is precisely the tone of sublime confidence when addressing even the most complex of issues. The late Victoria Geng once wrote a marvelous parody of Supreme Court decisions in which, among other things, the Court announced that “nature is more important than nurture.” We wouldn’t take such a declaration seriously. It is not clear why we should take much more seriously the kinds of over-confident declarations as to historical meaning that both Scalia and Stevens indulge in.

Ouch. Of course, the nature of the legal profession encourages bold pronouncements of the historical record even where such confidence is completely unwarranted. It is natural for all people to pick the strongest arguments for their position while minimizing or ignoring the rest, but the legal profession raises this to a high art. Lawyers are trained to pick the strongest precedent and make a case for why it should be followed, while dismissing or minimizing (but not ignoring) adverse precedent, even when that adverse precedent is obviously more compelling. This makes for clever legal arguments, but it also makes for terrible historical analysis. Historians are of course no more neutral than you and I, but at least the historical profession values highly the goal of neutrality; historians are taught to seek the one correct answer, and where there can be no such assurances, to acknowledge that the historical record permits no easy answers. A historian who cherry-picks from the historical record to arrive at a pre-determined conclusion is a poor historian indeed, but such a trait is highly valued in the lawyer.

Unfortunately, Supreme Court Justices seem to be unaware of the differences in the two professions. Assured of their own rightness, and encouraged by the nature of legal argument and writing, they draft opinions and dissents which, as Levinson states, adopt a "tone of sublime confidence" that is frequently completely unwarranted, at least when it comes to questions of legal history. One must be given to wonder the value of an opinion that is founded on such shaky historical ground, but to the Supreme Court, I suppose it is the tone of complete confidence that matters the most.

Immigration Crackdowns Nationwide

Nat-Wu asked me to put up something about anti-immigrant enforcement nationwide as he is working on the continuing story of Irving. From ABC News:

In a staggering sweep in California, 1,300 illegal immigrants have been arrested. Last week, federal agents in Nevada raided 11 McDonald's restaurants as part of a crackdown on illegal immigrants. In New York's Nassau County, armed Immigration and Customs Enforcement officials raided homes in the middle of the night in search of gang members and fugitives.

Secretary of Homeland Security Michael Chertoff admits that raids aren't the perfect solution, but that they are a reality right now.

"I think we have an obligation to use the tools that we do have at least to achieve what the law currently requires," Chertoff said.

But in Irving, like many places around the country, residents aren't willing to wait for government intervention. Police are turning over any arrested illegals to the feds.

Latino parents have grown so nervous, they are keeping their kids out of schools.

"If you look Hispanic they pull you over," Irving student Crystal Chacon said.

One man from Virginia said he was so frightened about being rounded up in Virginia, where governments are threatening action, that he would only talk to ABC News anonymously.

"What breaks my heart," he said, "is when my 6-year-old daughter comes home and asks why do they hate us."

So that's the situation. Neighborhoods are being turned into a battleground as local governments and citizens, discontented with federal enforcement, decide to crackdown on illegal immigrants.

Nat-Wu has done more than an adequate job pointing out how ridiculous things have gotten, so I wanted to touch on some of the legal questions of this kind of local enforcement since it is something I've researched in the past. Allow me to cannibalize my own college paper from awhile back:

Persuant to a 2005 Arizona statute, the County Attorney and Sheriff of Maricopa County arrested and prosecuted illegal immigrants entering the state with a charge of conspiracy related to the smuggling of human beings for profit or commercial purpose. The Center for Human Rights and Constitutional Law, who have provided counsel for many prosecuted under the statute, argues that this state law violates the doctrine of preemption. The Supremacy Clause of the United States Constitution places federal law above state law at all times, and when in conflict state law must yield. The organization argues that because immigration is regulated by federal law, the application of this Arizona statue would be in conflict with U.S. government immigration policy.

Let us turn to the doctrine of preemption and previous Supreme Court rulings in this area. In Pennsylvania v. Nelson, the Court dealt with the question of whether a Pennsylvania statute prohibiting the advocating of the overthrow of the United States government was in conflict with the federal Smith Act of 1940 which prohibited the same conduct. The Court held that the Pennsylvania Sedition Act was superseded by the federal law. Chief Justice Earl Warren wrote in the majority opinion that the scheme of federal regulation of seditious activities was "pervasive" and "left no room for the states to supplement it." Secondly, the Court held the federal interest must be dominant, and that this was so with the issue at hand. Certainly the investigation of communist activities and the prosecution thereof were seen as a part of the national security interest at the time. Indeed, the Smith Act dealt with an issue seen as of primary importance to the federal government making any enforcement of similar state laws potentially harmful to the smooth execution of national statutes and the purposes that were behind their enactment (especially considering the Pennsylvania law provided for harsher penalties than the Smith Act did), the third concern for the Court. In fact, using these three parameters, the Court created a future test for when states would not be allowed to supplement federal laws, which I will apply here to this case.

Firstly, we must address the question of whether immigration has generally been considered a mainly federal issue by the courts. Similar to Pennsylvania v. Nelson, Hines v. Davidowitz dealt with a Pennsylvania statute that regulated alien registration in conflict with a federal statute regulating the same subject. Again, the Court voided the Pennsylvania law. Justice Black, writing for the majority in the case, wrote the following: “…the supremacy of the national power in the general field of foreign affairs, including power over immigration, naturalization and deportation, is made clear by the Constitution, was pointed out by authors of The Federalist Papers and has since been given continuous recognition by this Court.” Furthermore, in Takahasi v. Fish and Game Comm’n, the Supreme Court held that states “can neither add to nor take from the conditions lawfully imposed by Congress upon admission, naturalization and residence of aliens in the United States or the several states.”

On the question of the pervasiveness of the federal laws regulating immigration, the decision reached in Plyler v. Doe states “The Constitution grants Congress the power to ‘establish a uniform Rule of Naturalization.’ Art. I., 8, cl. 4. Drawing upon this power, upon its plenary authority with respect to foreign relations and international commerce, and upon the inherent power of a sovereign to close its borders, Congress has developed a complex scheme governing admission to our Nation and status within our borders.” In the case Gonzales v. City of Peoria decided by the 9th Circuit Court of Appeals, individuals of Mexican descent alleged that they had been unlawfully stopped, questioned and detained by city police without reasonable suspicion or probable cause, and instead, solely on the basis of their race and appearance. The 9th Circuit held that they had standing to pursue damages, injunctive and declaratory relief, but more importantly, the opinion was willing to “assume that the civil provisions” of immigration law “constitute such a pervasive regulatory scheme” as to preempt state and local arrest authority. Thus, the Arizona statue would seem to be in conflict with the first stage of the test as laid out in Pennsylvania v. Nelson when looking at the decisions in cases on both the Court of Appeals and Supreme Court level.

Further evidence that a pervasive regulatory scheme is in place is exemplified in the fact that federal immigration laws currently reference when state and local authorities may act to enforce federal regulations. Given the inclusion of these provisions in the statutes, it is reasonable to argue that Congress intended to expressly give non-federal law enforcement this authority only in the specific ways that are laid out in the statutes, implicitly denying them the authority in areas not addressed. Even though Arizona authorities were acting pursuant to state law, the doctrine of preemption would hold that Arizona law could not give state and local authorities the power to control regulations outside the boundaries set by Congress. After all, they do not have such power to enforce federal laws in other issue areas as the Executive Branch has the clear Constitutional authority to do so.

Now that we have established that federal immigration laws are sufficiently pervasive, we must address whether or not immigration control is an issue where the federal interest is dominant. Though illegal immigration by Mexican citizens into the United States disproportionately affects states in the southwestern region of the country, when we consider the issue deals with the nation’s borders and a massive influx of people from other countries (with whom it is necessary for the federal government to deal with in regards to immigration policy), often unknown to authorities, one can only reasonably arrive to conclusion that there is an important national interest in regulating immigration. Given the potential socio-economic impact and national security implications for the whole country which are involved here, it is clear that the federal government has compelling reasons to construct such pervasive immigration laws and both explicitly and implicitly limit individual states from regulating immigration with their own laws.

This becomes even clearer when we consider how state regulations, if allowed to remain in place, could potentially undermine the objectives of federal statutes. Returning to Pennsylvania v. Nelson, a primary reason the federal government did not desire states to supplement the Smith Act with their own, harsher laws (and the third reason the Court struck down the Pennsylvania statute) was that they want federal authorities to be able to use the threat of prosecution to get information out of suspects (the threat being useless if they could be prosecuted under a state statute anyway). The Arizona statute we are considering here deals with human smuggling. Could not such laws be similar hurdles to the investigation and prosecution of human smuggling rings by federal authorities? Also, given the recent attention given to illegal immigration in the post-9/11 period, in regards to the potential danger to national security, it is also questionable that we would want conflicting federal and state laws on this issue.

In conclusion, the application of this statute clearly puts the state in a position of regulating immigration, and federal law also clearly preempts efforts by the states to do so. Policy and law dictate federal authority over this issue area and the Arizona statute is not able to maneuver around the three-prong test given to us by the U.S. Supreme Court in Pennsylvania v. Nelson. Thusly, the Arizona law can not be used to prosecute immigrants in accordance with the U.S. Constitution.

Whew, I know that's long (my constitutional law classes clearly paid off!). Thankfully things aren't as wild in most places as they are in Maricopa County. However, I think this does point out the legal ramifications of the increasingly aggressive role local law enforcement in trying to play in regards to illegal immigrants. This of course doesn't mean they can't do anything about it, but they certainly shouldn't be practicing the kinds of clear discriminatory practices going on in Irving either no matter what enforcement powers you think they have. Anyway, this is just another example of how we are being failed by certain members of Congress who don't want to update our national immigration policy.

Roberts Court Good for Business, Bad for Stare Decisis

Both the L.A. Times and New York Times have stories out this morning analyzing the Roberts Court and the direction it has been taking.

First, the New York Times argues that the Roberts Court has been notably divided and notably overturning prior court precedent, that is, standing by the Court's previous decisions. The biggest example of course was in Gonzales v. Carhart, where the Court - with Bush appointees Roberts and Alito in the majority - essentially, though not overtly in its opinion, overturned its decision in Stenberg v. Carhart just a few years back and upheld the constitutionality of a law banning "partial-birth" abortion procedures. More importantly, it was the first time since Roe v. Wade was decided in 1973 that a law regulating abortion had been upheld even when it did not make an exception for the life or health of the mother.

Second, the L.A. Times looks at a dozen rulings in the last year which have been a boon to corporations by making it harder to sue them or limiting lawsuit damages:

"The Roberts court is even better for business" than the court led for two decades by the late Chief Justice William H. Rehnquist, said Washington attorney Maureen E. Mahoney, who is a longtime friend of Chief Justice John G. Roberts Jr. and a former clerk for Rehnquist. "There is unquestionably a greater number of business cases before the court, and [the justices] are quite willing to limit damage remedies."

In February, for example, the court threw out an $80-million punitive damage verdict against cigarette maker Philip Morris, ruling that juries cannot use a single victim's suit to punish a company for harm done by its products to thousands of others.

Last month, in a similar decision, the court set aside a California jury's $55-million verdict against Ford Motor Co. arising from a rollover accident involving its Ford Explorer.

Two weeks ago, the court shielded the insurance industry from paying millions of dollars in damages for not notifying customers when they check their credit ratings.

A few days before that, the court protected employers from being sued over pay discrimination against women and minorities that occurred in past years. The 5-4 decision overturned a verdict in favor of a female supervisor at a Goodyear Tire plant, saying she had failed to point to discrimination in the 180 days prior to filing her suit — a strict statute of limitations set in the Civil Rights Act of 1964.

On Monday, the court threw out a massive suit alleging "an epic Wall Street conspiracy" among the nation's leading investment bankers to fix the prices of new stock offerings during the Internet boom of the late 1990s. It was the third decision this year to restrict the reach of antitrust laws.

None of these pro-business decisions came as a huge surprise. But lawyers who practice regularly before the high court say it is noteworthy that business has been winning so consistently.

It is "a very business-friendly court," said Beth S. Brinkmann, a Washington lawyer who served in the Clinton administration. The justices have made it harder to sue business on many fronts, she said.

Just today, the Supreme Court dealt a second blow to investors suing companies over accusations of fraud when it set a higher standard to prevent the lawsuits from being dismissed.

I just hope everyone who complains about liberal, activist judges is happy with this new, more business-friendly and anti-precedent Supreme Court.

Wrong

The editors of the L.A. Times, channeling the spirit of the editors of the Wall Street Journal, come out whole-heartedly for the Supreme Court's decision in Philip Morris yesterday:

The U.S. Supreme Court went further this week — though not far enough — in reining in juries in civil cases that award outlandish punitive damages. By a disappointingly narrow 5-4 vote, the justices overturned a jury's decision that Philip Morris should pay $79.5 million to the widow of a smoker who died of lung cancer. The value of her actual damages was only $821,000.

The spin begins in the first paragraph. Is it "outlandish" for a corporation that reaped $2 billion in profits the year that the litigant died, to be required to fork over what amounts to two weeks of profits as punishment for fraudulant behavior that results in the death of a smoker? Only if you think that punitive damages are not supposed to, well, punish anyone. The entire purpose of punitive damages is to serve the state's compelling interest in protecting its citizens and deterring wrongful conduct directed towards them. That can't happen when puntive damage awards equal an amount of profits that the Board of Directors will miss merely by blinking.

The justices could — and should — have ruled clearly that the $79.5-million award violated previous rulings that punitive damages may not be "grossly excessive" and should bear a reasonable relation to the harm actually experienced by the plaintiff. But in returning the case to the Oregon courts, the court did impose a sensible rule that should make it harder for juries to sock deep-pocket and easily demonized defendants.

And here the editors fail to appreciate the subtle bind that the Court was in. The Court has already ruled in two prior cases, BMW v. Gore and State Farm v. Williams that punitive damages cannot be "grossly excessive", but in both cases the Court also stated quite clearly that they cannot set a bright-line test for when punitives damages bear no reasonable relation to the award for the actual harm the plaintiff suffered. To do so would undermine the punishment purpose of punitive damages, especially where tortfeasors who are large corporations could concievably kill their customers through reckless and outrageous conduct and yet suffer only a minor consequence to their bottom line. It's hard to imagine how the Court could come up with a workable test that would be applicable to every imaginable situation, and so they haven't. Nor will they in the future (even though at the same time I was surprised that they didn't address that issue at all to provide more guidance on what is and is not an excessive award, but that's neither here nor there.)

In cases like this, juries often are confronted with a brainteaser. In deciding to award punitive damages, they're supposed to consider whether the conduct of the defendant is "reprehensible," and one definition of reprehensible conduct is to act in a way that puts many people at risk (such as leaking toxic material into a water supply).But without proper guidance, jurors can leap to the conclusion that damages should reflect the harm experienced by everyone who might have tasted tainted water — or smoked a cigarette. Though it could have gone further, this week's decision should make such leaps less likely.

Actually, as I noted here, I'm not at all sure that the decision makes such leaps less likely. Again, you would serve as a better juror than I if you can both weigh the conduct of the defendant towards other parties and not weigh the conduct of the defendant towards other parties at the same time. If you're a clever juror, such an instruction from a judge won't stop you from assessing large punitive damages and then premising it on the degree of reprehensibility of the defendant's conduct, especially if you are appropriately guided by a clever plaintiff's attorney. I suppose the decision will have a general chilling effect on large awards against corporate tortfeasors, but as I already noted, there is nothing preventing either the Oregon Supreme Court, or an Oregon state court, from re-hearing the case and allowing exactly the same amount of damages.

And by the way, note how the editors attmept to color conduct that puts many people at risk, by providing the example of a corporation that leaks toxic material into a water supply. If you think there was no thought put into that example, you failed to read the rest of the editorial closely enough. They provide the example of the worst kind of tortious conduct a corporation can conduct, so you you the reader can easily distinguish it from the case of Philip Morris, where the smoker voluntarily chose to begin and continue smoking. But the two types of conduct were distinguished by the Oregon state court. The smoker was found partly liable for his own conduct, and the actual damages award was reduced accordingly. And note also the recent news about the gradual increase in the nicotime levels of cigarettes made by, among others, Philip Morris. Exactly how voluntary is a smoker's decision to continue smoking, when tobacco companies are doing their best to make sure the smoker stays hooked?

Such news, which highlights the continuing profit motive and reckless disregard for human life that is possessed by companies such as Philip Morris, makes it quite clear that the Supreme Court did well to minimize the damage of its own decision, so that clever attorneys, courts and jurors seeking to do justice can still, as the editors put it, "sock" these corporate tortfeasors.

Court Rules for Philip Morris

Yesterday, in a 5-4 decision, the Supreme Court struck down a ruling in a Oregon state court that found Philip Morris liable to the tune of $79.5 million in punitive damages for the death of a smoker. The Court avoided the issue of the constitutionality of the amount of the punitive damages awarded, and instead ruled on a much narrower ground:

The court ruled that the Constitution's due-process clause forbids a state to use punitive damages to punish a company for injury it inflicts upon others who are "essentially, strangers to the litigation," according to the majority opinion, written by Justice Stephen G. Breyer.

The Supreme Court has already addressed the issue of the constitutionality of large punitive damage awards in BMW v. Gore and State Farm v. Campbell. In the two cases, both decided in the last ten years, the Court found that multi-million dollar damage awards violated due process and were constitutionally excessive.

BMW v. Gore laid out three "guideposts" by which a jury can determine the appropriate measure of punitive damages. The first is the reprehensibility of the defendant's conduct, and the second is the ratio of punitive damages to compensatory damages awarded in the case (the third, comparable civil and criminal penalties for similar conduct, is irrelevant for the moment.) It was largely expected that the Court would go to the second issue and attempt to establish a clearer ratio beyond which punitive damages would be excessive. I for one expected as much because the Court has already addressed the excessiveness of punitive damages twice, and in both instances had much to say about the ratio of punitive to compensatory damages. Instead the Court avoided that issue completely, and went to the the more general issue of due process. Essentially, the court ruled that a jury can consider a defendant's similar conduct directed towards persons who are not parties to the litigation in the reprehensibility analysis, but could not consider such harm when making a determination of the appropriate amount of punitive damages to award.

Now, imagine you're a juror sitting on a possible re-trial of this exact same case. After hearing all the evidence of both sides, you are reminded by the judge that when it comes to how bad the defendant behaved, you're permitted to think about how it's actions affected many more people beyond the plaintiff, but when it comes to actually deciding how much punitive damages are appropriate, you are not. If you can perform such mental gymnatistcs, you'd be a better juror than I am.

Here's a fairly common take from the left on the decision, from Scott Lemieux:

The other important aspect to this case is that--as I predicted--Alito and Roberts broke with Scalia and Thomas and voted to throw out the damages. Ann Althouse--of course!--implies that this is evidence of Alito's fabled centrism, but this gets things exactly wrong. Precisely because they're sometimes constrained by larger theoretical concerns, Thomas and Scalia will sometimes won't go along with the tendency of conservative justices to favor business interests, whereas Roberts and Alito will have no such restraints. Today's cases are evidence that Roberts and Alito are likely to cast more reliably conservative votes than Scalia and Thomas, not the reverse. If Alito's adoption of this broad due process claim was (as it is for Souter, Breyer, and Kennedy) accompanied by a belief that the due process clause provides substantial protections to reproductive freedom as well as the ability of corporations not to pay more damages than the Court thinks appropriate when they harm people, it would be evidence of "centrism," but it's abundantly clear that this isn't the case. Alito will, from the perspective of people with liberal constitutional values, be worse than Scalia.

While I cannot disagree with Scott that this is a "pro-business" decision, I'm not exactly sure how much of a victory for Philip Morris this was. It is at least possible that this case could be remanded all the way down to the state district court, where a jury could award the exact same amount of damages, and the state appellate and supreme court would uphold it.

So at this point I think it's premature to say what the fallout of this case will be (though of course pro-business groups are applauding the decision.) Nor does this say much for the Supreme Court's jurisprudence of punitive damages, as the the Court has definitely taken a step to the side as opposed to a step forward or backward.