JUSIPER

 
The owls are not what they seem

Posted by Sini

Alito is assumed to be an utter ideologue, but people really wonder about Roberts, one of the Bush's primary attorneys in the Florida post-election in 2000. His vote in the Phillip Morris case makes Douglas Kmiec of Slate fear that there may be much worse to come:

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. [...]

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.

1:11 AM |