When Courts Defy the Supreme Court

Hard as it is to believe, there have been times in our history when lower courts have not followed out the mandates of the United States Supreme Court which has no built-in means of enforcement.

This appeared in today's New York Times

December 4, 2008

Justices Look Anew at Case in Which Oregon Court Has Twice Rebuffed Them

By ADAM LIPTAK

WASHINGTON — The United States Supreme Court takes its name seriously, and it expects lower courts to follow its instructions. But the Oregon Supreme Court has twice refused to reduce a $79.5 million punitive damages award in the face of increasingly blunt directions from the nation’s highest court.

When the United States Supreme Court agreed to hear the Oregon case for a third time in June, many legal experts assumed it did so to teach the lower court a lesson about which court has the last word.

“The Oregon Supreme Court really has continued to be defiant in this case,” Benjamin C. Zipursky, a Fordham law professor, said.

Philip Morris USA, which is fighting the award, filed unusually aggressive briefs in recent months, comparing the Oregon Supreme Court’s conduct to that of recalcitrant Southern courts in the civil rights era. And the company’s lawyer, Stephen M. Shapiro, sounded confident that he would be speaking to a sympathetic audience when he faced the justices on Wednesday.

“We are here today,” Mr. Shapiro said, “because the Oregon court failed to follow this court’s directives.”

But Mr. Shapiro’s reception was decidedly mixed. Justice Stephen G. Breyer, the author of the 5-to-4 decision last year that ordered the Oregon court to have a fresh look at the award, said his initial reaction to the state court decision had been skeptical.

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

The United States Supreme Court’s instructions last year, concerning how the punitive award had been calculated, seemed clear enough.

The Oregon courts had allowed the jury to consider two kinds of harm in assessing the award at issue in the case, Philip Morris v. Williams, No. 07-1216.

One was routine: the jury looked at the harm suffered by Jesse D. Williams, the man whose widow brought the case. Mr. Williams died of lung cancer in 1996 after smoking two packs of Marlboros a day for decades.

But the jury also considered a second kind of harm, to other smokers, and Justice Breyer last year said that was a serious error. “The due process clause prohibits a state’s inflicting punishment for harm caused strangers to the litigation,” he wrote.

Punitive damages cases can produce unusual alliances. Here, Justice Breyer was joined by Chief Justice John G. Roberts Jr. and by Justices Anthony M. Kennedy, David H. Souter and Samuel A. Alito Jr. The dissenters were Justices John Paul Stevens, Ruth Bader Ginsburg, Antonin Scalia and Clarence Thomas.

In sum, Justice Breyer wrote last year, “the Oregon Supreme Court applied the wrong constitutional standard” and should now “apply the standard we have set forth.”

But the Oregon court, which in an earlier decision had said Philip Morris “engaged in a massive, continuous, near-half-century scheme to defraud the plaintiff and many others,” did not apply the new standard. Instead, it ruled against Philip Morris on a different, technical and arguably trivial ground involving flaws in the jury instructions Philip Morris had submitted at the trial in 1999. The jury instructions, the state court ruled, used “may” when they should have used “shall,” and they referred to “illicit profits” when they should have omitted the adjective.

“It’s truly a game of gotcha that just nullifies the defendant’s due process rights,” Mr. Shapiro told the justices.

But there is a requirement of Oregon law that says jury instructions to be “clear and correct in all respects” and “altogether free from error.”

“They are pretty picky,” Justice Breyer said of the Oregon justices. “And not only are they being picky, but they are being picky after the event.”

Justice Scalia, who was in dissent last year, sounded exasperated. “Is it up to a state court to sit in judgment about whether our remand orders are in error or not?” he asked.

The Oregon court’s approach did not seem to bother Justice Souter, who was in the majority last year, or Justice Ginsburg, who dissented. Both indicated that the Oregon court was free to decide the jury-instruction issue as and when it wanted.

But even justices who seemed inclined to allow the Oregon court’s ruling to stand worried about the signal that might send to a lower court, particularly in capital cases.

“Is there any way for us to ensure against, in effect, a bad-faith response to our decision?” Justice Souter asked.

Chief Justice Roberts had an answer. “There is, of course, another way to protect our constitutional authority in this case” aside from telling state courts when to decide which issue, he said.

“If there is something malodorous about the fact that the Oregon Supreme Court waited until the last minute to come up with this rule that was before them all the time,” he said, perhaps the United States Supreme Court should agree to decide a separate and fundamental issue that it has so far pointedly avoided in this case, the proper ratio between the punitive and compensatory awards.

The punitive award was 97 times as large as the compensatory award of $821,000. Recent Supreme Court decisions have suggested that the ratio between punitive and compensatory awards should not ordinarily exceed a single digit and should perhaps be capped at 1:1.

It was not clear how serious the chief justice was about the suggestion. But there is at least some chance that the court will avoid ruling on whether the Oregon Supreme Court had defied it by simply addressing what is in some ways the core issue in the case.
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The United States Constitution was written with states' rights recognized and a government that has two parallel components: federal government (all three branches) and state governments (all three branches). Accepting all this, do you believe that the actions of the Oregon Supreme Court as well at the United States Supreme Court are in keeping with the intent of the founders of our nation who penned the United States Constitution?