The decision in the Phillip Morris case came down today, with the Court vacating the award of damages in a 5-4 decision. I’m extremely skeptical of this whole project of finding limits to punitive damages in the due process clause, although today’s case adds a new twist. The Court overruled the Oregon courts not because the damage award was excessive but because the award was based in part on injuries suffered by individuals who were not party to the suit. This strikes me as, if anything, even more problematic than the previous cases (and this is also where Stevens, who supported the previous cases, gets off the bus.) There’s no compelling logical reason why when dealing with punitive (as opposed to compensatory) damages the scope of the consequences of injurious actions can’t be taken into account, and I didn’t find Breyer’s opinion terribly illuminating (although I was amused by his claim that “to permit punishment for injuring a nonparty victim would add a near standardless dimension to the punitive damages equation.” If the lack of standards is a problem, I would suggest we start by overruling cases that limit punitive damages based on what shocks Breyer’s conscience or on the number of fingers on Anthony Kennedy’s hands.) According to Jay Fienman, however, ruling on these grounds makes the consequences of the opinion unclear.
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.