The Supreme Court's Recent Philip Morris Punitive Damages Decision: What It Reveals About How Constitutional Law Gets Made, and How the Court Functions

By VIKRAM DAVID AMAR
Friday, Mar. 02, 2007

The Supreme Court's decision two weeks ago invalidating as unconstitutional a $79.5 million Oregon jury punitive damage award against tobacco titan Philip Morris was one of the most interesting rulings of the year to date. For one thing, it shows that even as the Roberts Court is deciding far fewer cases this year than in years past, the Court does seem to be interested - as Chief Justice Roberts himself indicated in his confirmation hearings that it ought to be - in matters that deeply affect corporate America.

Although, as my FindLaw colleague Anthony Sebok has written, Philip Morris perhaps did not win as much as it would have liked, the Court no doubt took seriously some of the company's complaints about the sanction that had been imposed against it. This week's unanimous opinion vacating the Ninth Circuit and undoing a treble damage antitrust award (coincidentally, also $79 million) against lumber and paper giant Weyerhaeuser Company for so-called "predatory bidding" seems another example of the current Court's sensitivity to issues about which big business cares.

Indeed, as Solicitor General Paul Clement suggested in a lunch talk he gave in San Francisco last fall, it may be noteworthy that three of the items highest up on the corporate legal agenda - class action reform, punitive damages, and treble damages - have all been meaningfully addressed recently in Washington DC, the first by Congress in the Class Action Fairness Act of 2005, and the latter two by the Supreme Court in the current Term.

But the Philip Morris punitive damages ruling is also interesting in numerous other ways. Indeed, it reveals many important aspects of the way constitutional law gets made and how the Supreme Court works.

How the Decision Reaffirms the Crucial Law/Politics Distinction

First, the decision highlights that, although we may sometimes forget it, constitutional law and partisan politics are not the same thing. Consider the lineup in Philip Morris. Justices Breyer and Souter - two of the more "liberal" members of the Court (Justice Souter, in many respects, being the most liberal) - are both in the majority, along with Chief Justice Roberts and Justice Kennedy and the (seemingly quite conservative) Justice Alito. One would not expect Justices Souter and Breyer to favor, as a political matter, big business over personal injury fraud victims.

The dissenters - Justices Stevens, Scalia, Thomas and Ginsburg - are also odd bedfellows. Like the vote of (retired) Justice O'Connor in the so-called medical marijuana case a few years back (where she would have allowed California to permit medical marijuana free from federal governmental interference, notwithstanding her stated personal belief that California's experiment was bad policy), the vote lineup in Philip Morris is a good reminder that Justices often seem to overcome their personal predilections when they perform the task of giving meaning to the Constitution.

Another Lesson of Philip Morris: While Law Isn't Politics, It is Related to Politics

Second, the ruling suggests that constitutional law, while distinct from partisan politics, is nonetheless very related to what takes place on the Hill. Consider again the vote lineup, and in particular the swing vote, Justice Breyer. Justice Breyer is generally considered a moderate liberal on the Court, and that itself is unsurprising, given the process by which he got nominated and confirmed to the federal appellate bench. He was appointed to the U.S. Court of Appeals for the First Circuit by President Carter after the 1980 election in which Ronald Reagan had defeated Carter. The Senate Republicans might have attempted to give the First Circuit vacancy to incoming President Reagan by stalling against the lame-duck President Carter. Yet they allowed Judge Breyer to be confirmed promptly because of his seemingly moderate inclination.

When appointed to the Supreme Court in 1994, then-Judge Breyer may very well have been the Republicans' favorite Democrat on the bench (in the same way that Anthony Kennedy might, when he was appointed to the high Court, have been among the Democrats' favorite Republican judges.) Judge Breyer had worked with members of the Senate on both sides of the aisle as a key member of the U.S. Sentencing Commission, and in some ways he benefited from the kind of "Senatorial courtesy" that judicial nominees who themselves were former Senators enjoy.

Thus, when President Bill Clinton, facing a divided Senate in an era generally characterized by divided government, wanted to pick someone who could be quickly and overwhelmingly confirmed, Republican Senators made clear that Breyer would fit the bill. (Breyer was confirmed with nearly 90 Senate votes.) Justice Breyer's moderation -- and this moderation is illustrated, as Anthony Sebok argued, by giving Philip Morris some but not all of what it sought -- is exactly what those who ran the political process were expecting.

Why Court Watchers Should Pay Close Attention to Breyer, Not Just Kennedy, as a Swing Vote

Third, the Philip Morris ruling demonstrates that often we must focus on Justice Breyer - and not merely Justice Kennedy - to identify the center of the modern Court. The so-called "swing-Justice" slot on the Court has been occupied by many jurists over the past generation -- most prominently, by Justice O'Connor, and by Justice Powell before her. Conventional wisdom is that Justice Kennedy is the one to watch these days - and there is surely much to be said for that point of view, as we will likely see when the decision in the pending Partial Birth Abortion Ban Act case comes down.

But Justice Breyer is often in control in important constitutional areas too. Consider, for example, his "split" rulings dictating the outcomes of the Court in the controversial Ten Commandments cases the year before last. It was Justice Breyer's vote(s) that led the Court to invalidate the display of the Commandments in a Kentucky courthouse, while permitting a similar (yet, according to him, different) display near the Texas capitol.

An Illustration of How the Swing Justice Often Writes the Majority Opinion

Fourth, and related, the punitive damage case illustrates that the "swing" Justice in an area of law is often assigned to write the majority opinion (because if someone else writes it and says overly extreme things, the "swing" Justice may flee the majority), and that the lines that "swing" Justices draw in their writings are often, shall we say, rather fine.

Justice Breyer's opinion in Philip Morris holds that the punitive damage award was invalid because a jury was permitted to punish Philip Morris for harm it may have inflicted on persons other than the plaintiff, and that such punishment is impermissible. Fair enough. But Justice Breyer goes on to say that juries can consider harm done to non-plaintiffs in determining how "reprehensible" a defendant's conduct was - a permissible factor to take into account in deciding how large a punitive award should be. Huh?

As Justice Stevens says in dissent, "[t]his nuance eludes me." And I fear it will elude any jury that is told that it can take into account harm to others in deciding the level of a punitive award, but that it cannot punish the defendant for what it did to these other persons.

In addition to being fuzzy, Justice Breyer's test seems less than completely coherent. He criticizes what the Oregon courts allowed because there is no way to know "how many such [non-plaintiff] victims [there] are," and because we cannot know "[h]ow seriously [they] were injured," or "[u]nder what circumstances." That may all be true. But these things would appear equally true - and seemingly equally unfair to the defendant - if we allow the jury to consider these non-party potential victims for purposes of "reprehensibility," rather than for purposes of direct "punishment."

Perhaps being in the middle does "nuanced" things to you. Consider again the "I know violations when I see them" approach Justice Breyer developed under the Establishment Clause in the Ten Commandments cases. Or consider swing Justice Powell's famous opinion in Bakke (endorsed by swing Justice O'Connor in the Michigan affirmative action case, Grutter) differentiating between constitutionally impermissible racial quotas and allowable race-based "plusses" in affirmative action admissions policies.

Insight Into the Evolution of Justice Breyer's Punitive Damages Views

Philip Morris also illustrates that the views of individual Justices in an area of law may evolve over time - that personal consistency within a doctrinal line of rulings, while important, is not always strictly observed. Again, consider Justice Breyer. In his earlier writings in the punitive damage arena, especially in his concurring opinion in BMW v. Gore, he tended to focus on procedural safeguards - like trial judge and appellate court review for uniformity and consistency -- that States can and must implement to rein in arbitrary jury decisions.

But by Philip Morris, Justice Breyer appears no longer content with procedural limitations; his ruling for the Court that Oregon simply cannot punish defendants for wrongs done to non-plaintiffs certainly could be thought of as a substantive barrier to a punitive objective Oregon wants to accomplish. (To see that, ask yourself what additional procedures, if implemented, would enable Oregon to punish for harm to others in this context. What those "procedures" might be is far from obvious.)

Thus, although Justice Breyer seems reluctant to admit it (he uses the word "procedural" to describe the focus of his inquiry in Philip Morris), his opinion could easily fall on the (contentious) "substantive" side of the "procedural/substantive" due process dichotomy.

Two Kinds of Consistency About Which Justices Must Always Be Concerned

That differentiation between procedural and substantive limitations on what States and juries can do is important, because it sheds light on yet another crucial facet of constitutional decisionmaking: Often, a Justice has to take account not only of whether her vote in a case today is consistent with her prior votes in that same area of law (like punitive damages), but also whether her vote today is consistent with her constitutional methodology more generally.

This concern for methodological consistency is what likely explains Justice Scalia's and Justice Thomas's decisions - in a number of recent punitive damage rulings - to dissent. Although one might expect "conservative" Justices like Scalia and Thomas to want to confine jury awards against big business, these jurists object to the very idea of expanding substantive due process doctrine to include new things. Why? Because that is the crux of their argument against Roe v. Wade and Texas v. Lawrence, the landmark substantive due process cases involving abortion and consensual adult same-sex intimacy.

Since Justices Scalia and Thomas reject substantive due process in those cases on the ground that in 1868 (when the Due Process Clause was passed) states were free to regulate abortion and homosexual activity, the same, they argue, must be true about substantive due process in punitive damages cases of the past two decades. If the very idea of substantive due process is unjustified and "made up" by jurists in the privacy context, then these two Justices don't want to be accused of hypocrisy in the punitive damages setting.

Interestingly, Chief Justice Roberts and Justice Alito, both of whom -- especially Justice Alito -- seemed during confirmation somewhat skeptical of substantive due process in the abortion and same-sex conduct settings, felt comfortable applying (at least a variant of) the concept to strike down the jury award in Philip Morris. Perhaps Justice Breyer's (not quite convincing, to me) use of the adjective "procedural" in his majority opinion allowed these two newcomers to sleep a little easier after joining the opinion.

Justice Breyer himself also has some methodological explaining to do. While he has not rejected, but rather has embraced, substantive due process in the sexual privacy setting - and thus does not face the same quandary the more conservative jurists confront -- he has written recently in his book Active Liberty that the Court should defer to democratic majorities and that Justices should be "restrained" in their exercise of judicial review. What Judge/Professor Michael McConnell has written about Justice Breyer's approach to interpretation in a different context applies to the Philip Morris case as well: "Active liberty - the right of the people [of Oregon] to deliberate and enact [and implement] legislation - played no evident role in the decision."

But maybe consistency is the hobgoblin of little minds, not of swing Justices.


Vikram David Amar is a professor of law at the University of California, Hastings College of Law in San Francisco. He is a 1988 graduate of the Yale Law School, and a former clerk to Justice Harry Blackmun. He is a co-author, along with William Cohen and Jonathan Varat, of a major constitutional law casebook, and a co-author of several volumes of the Wright & Miller treatise on federal practice and procedure. Before teaching, Professor Amar spent a few years at the firm of Gibson, Dunn & Crutcher.

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