INTRODUCTION :: It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence.
This “innovation” has been accomplished through an unusual coalition of liberal and conservative Justices in the various closely divided decisions along the way. With the addition of four new Justices since the last case the Court decided on substantive due process grounds -two appointed by President George W. Bush and two appointed by President Barack Obama-it is unsurprising that many Court followers claim that the status of punitive damages jurisprudence is “unstable and uncertain” and that what will happen in the future is “impossible to tell.” As demonstrated in this Article, however, precisely the opposite is true. Contrary to outward appearances, a careful review of the Court’s most recent activity in this area-Philip Morris USA v. Williams -reveals that the Court is almost certainly entering an extended silent phase in its punitive damages jurisprudence and will not be reviewing any more punitive damages awards in the foreseeable future.
The Court’s recent foray into punitive damages has, however, left the dissenting Justices and punitive damages scholars complaining that the Court’s jurisprudence is “insusceptible of principled application.” While Philip Morris made some progress toward clarifying much of the lingering ambiguity, it still left ample room for continued criticism of whether the approach it has adopted is principled. Along the way, however, the Court did make significant progress toward addressing its primary animating concern with punitive damages-the multiple punishments problem. Simply stated, this problem occurs when “a defendant, who has injured multiple potential plaintiffs by a single act or course of conduct, faces multiple punitive damages awards for that conduct.” While this persistent problem would be best remedied by Congress, the Court’s attempts at a fix have led to awkward and highly questionable opinions that expose the Court to increasing criticism that its punitive damages jurisprudence consists of nothing more than results-oriented, substantive due process decisions that simply reflect the individual Justices’ senses of fairness.
Judicial conservatives and punitive damages scholars critical of the Supreme Court’s adverse possession of important aspects of punitive damages jurisprudence had good reason to hope that the substantive due process power grab by the Court in the realm of punitive damages would be reversed soon after Chief Justice John Roberts and Justice Samuel Alito were confirmed. They were sorely disappointed, however, when Roberts and Alito rejected pleas from, inter alia, conservative stalwarts Antonin Scalia and Clarence Thomas urging the Court to butt out of punitive damages. Instead, Roberts and Alito seemed to accelerate the Court’s encroachment by joining the majority in the Court’s 5-4 decision in Philip Morris. This case was the eighth in a series of closely divided cases over the last two decades whereby the Court constitutionalized this area of law, previously reserved to the several states.
A ray of hope emerged a few months later, however, when the Court agreed to review another case (regarding the Exxon Valdez oil spill) involving a huge punitive damages award. But this hope quickly faded when the Court strictly limited its review to matters of federal maritime law, expressly refusing to evaluate the punitive damages award on due process grounds.
Another ray of hope emerged with the successive retirements of Justices John Paul Stevens and David Souter, both of whom fully subscribed to and supported the Court’s substantive due process jurisprudence. But an examination of the available writings and records of President Obama’s replacements for Stevens and Souter (Justices Sonia Sotomayor and Elena Kagan) reveals no reason to believe that both would adopt the view shared by Justices Ginsburg, Scalia, and Thomas that the size of punitive damage awards should be left to the states. Although Justice Kagan’s lack of judicial experience makes it impossible to divine her jurisprudential methodology with anything approaching certainty, and while Justice Sotomayor’s track record on punitive damages simply reflects her application of Supreme Court precedent without betraying her personal beliefs, the fact that the newest Justices are widely viewed as left-leaning centrists makes it highly unlikely that both would choose to adopt either Justice Ginsburg’s atypical (to liberals) line of reasoning or the approach of famously conservative Justices Scalia and Thomas. Accordingly, it is exceedingly unlikely that the addition of Justices Sotomayor and Kagan will hasten the reversal of the Court’s substantive due process jurisprudence in the punitive damages realm.
Part I of this Article chronicles and summarizes the development of the Supreme Court’s punitive damages jurisprudence. Over the past two decades, the Court has increasingly constitutionalized various aspects of punitive damages jurisprudence, using both procedural and substantive due process rationales. A set of three “guideposts” has emerged that courts are to use in determining whether a punitive damages award runs afoul of constitutional guarantees.
Part II outlines the multiple punishments problem that is currently facing courts throughout the country and provides a brief overview of the various failed attempts and current proposals to remedy this problem. Part III provides the factual and procedural background of Philip Morris, culminating with the Oregon Supreme Court’s affirmance of the $ 79.5 million jury verdict.
Part III then analyzes and critiques the United States Supreme Court’s opinion in Philip Morris, including Justice Breyer’s majority opinion and the three dissenting opinions, the Oregon Supreme Court’s ruling on remand, and the telling response of the United States Supreme Court to Philip Morris’ subsequent writ of certiorari. Part III also briefly analyzes Exxon Shipping Company v. Baker and explains why what did not happen in that case is quite significant.
Part IV then deconstructs and reconstructs the Court’s current punitive damages jurisprudence, examining the current makeup of the Court and analyzing whether there is reason to believe that the addition of Justices Roberts, Alito, Sotomayor, and Kagan might provide any restraining influence on the Court’s punitive damages jurisprudence. Part IV then concludes that given the balance of power on the Court, and given the Court’s indirect “fix” of the multiple punishments problem, the Court is unlikely to take any more punitive damages cases in the near future