Posted by Adam @ 2:27 pm on February 22nd 2007

And then the Fab Four were two.

I did hear reports on the Philip Morris tobbaco case decided 5-4 two days ago by the Supreme Court but didn’t pay any attention to the break down of the majority. In particular, I assumed that Scalia and Thomas had voted with the new boys, Alito and Roberts. Which was a mistake on my part, because the majority was in fact comprised of Breyer, Kennedy, Alito, Roberts and Souter, with, in the losing corner, Ginsberg, Thomas, Stevens and Scalia. This is interesting, at least to me as a non-expert observer, because it’s an issue in which, as Kmiec writes in Slate, there is a pretty obvious originalist position. Furthermore, the actual ruling appears not to be of great use to lower courts in deciding what is, and isn’t, constitutional under the Due Process clause with respect to the consideration of strangers to the litigation in awarding punitive damages. According to Kmiec, it’s the sort of muddled judgement, directed by sentiment, that the President and many others have claimed to oppose.

Now, the commonsense position would be, I think, that those other people, the strangers to the litigation, can litigate for themselves, and get punitive damages that are proportionate for their own suffering; alternatively, they can engage in a class-action suit and thus not be strangers to the litigation and, thus, considered in the award of punitive damages. In either case, they needn’t be included. Also, maybe commonsense just tells us that some punitive damage awards are just too damn big. However, ‘commonsense’ isn’t, from the originalist position, the guiding light; the original documentary law, plus supporting documents speaking as to the intent of the makers of that law, are key and there doesn’t appear to be a great deal of explicit mention of this issue in those, in which case the default is to leave it alone. Furthermore, in the absence of that, why be stomping on the state court?

So, why are Alito and Roberts on the ‘commonsense intepretation’ side if they are supposed to be originalists, constructionists or minimalists? I remember Brad arguing elsewhere at the time of their appointment that Roberts and Alito were primarily there to support assertion of executive powers and maybe to do at least some damage to the far reach of Roe v Wade. Early days yet, but maybe he was right.

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