U.S. Supreme Court

Justice Who Wrote Ignored Decision Unsure of Oregon ‘Runaround’


Justice Stephen G. Breyer wrote last year’s 5-4 U.S. Supreme Court decision ordering the Oregon Supreme Court to reconsider a $79.5 million punitive damages award, a ruling the Oregon justices ignored when they found a separate state ground to uphold the verdict.

When the case returned to the Supreme Court for oral arguments yesterday, Breyer did not appear to be miffed by the Oregon court’s response, according to reports in the New York Times and the Washington Post. Breyer said he was initially skeptical about the Oregon decision, which didn’t consider the constitutional damages issue because jury instructions proposed by the company had misstated state law.

“I thought, ‘This is a runaround,’ ” Breyer said. “I’m not sure I think that now.”

The Supreme Court has twice overturned the punitive verdict against Philip Morris, and the Oregon Supreme Court has twice reinstated it. Stephen Shapiro, the lawyer for the tobacco company, had suggested in briefs that the Oregon court’s latest opinion was akin to Southern courts that had dragged their feet in carrying out the Supreme Court’s civil rights opinions, the Times account says.

But two other justices joined Breyer yesterday in suggesting the Oregon opinion may be justified: David H. Souter, who was in the majority last year, and dissenter Ruth Bader Ginsburg. Yet Souter worried about the implications in future cases, according to the stories.

“The problem that I think we all have is: How do we, in effect, guard against making constitutional decisions which are simply going to be nullified by some clever device” by a lower court? Souter asked. “Is there any way for us to ensure against, in effect, a bad-faith response to our decision?”

When the U.S. Supreme Court agreed to hear the latest appeal by Philip Morris, it opted not to consider whether the punitive award—which is nearly 100 times larger than compensatory damages—was unconstitutionally large. Instead the court said it would decide whether Oregon had defied the Supreme Court.

But in something of a surprise, the stories report, Chief Justice John G. Roberts Jr. suggested the high court might want to address the issue as a way “to protect our constitutional authority in this case.” If the court agrees to do so, “it would greatly raise the stakes of the case,” according to the Post account.

USA Today also covered the arguments.

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