February 8, 2008

2008 Election, the Supreme Court and Punitive Damages

One of the issues that the major presidential candidates will argue about in the general election is what type of judges should be appointed to the federal courts, especially to the Supreme Court. Many observers predict that the next president will have at least two or three nominees to the United States Supreme Court. Recently, Senator McCain, as part of his outreach to conservatives, issued a statement on judicial nominees: "I believe that one of the greatest threats to our liberty and the Constitutional framework that safeguards our freedoms are willful judges who usurp the role of the people and their representatives and legislate from the bench. As President, I will nominate judges who understand that their role is to faithfully apply the law as written, not impose their opinions through judicial fiat. . . . When applying the law, the role of the judge is not to impose their own view as to the best policy choices for society but to faithfully and accurately determine the policy choices already made by the people and embodied in the law. The judicial role is necessarily limited and one that requires restraint and humility.”

Senator Clinton and Senator Obama have argued for a more expanded role for federal courts in general, and the United States Supreme Court in particular, especially in the area of ensuring due process in a wide range of cases.

The United States Supreme Court's jurisprudence on the constitutional limits on state court punitive damage awards has created some interesting coalitions. In BMW v. Gore and Campbell v. State Farm, the majority who found that the due process clause imposed a significant limitation on state jury awards of punitive damages included Justices Stevens, Souter, Breyer, Kennedy, O'Connor and Chief Justice Rehnquist. The dissenting justices Scalia, Thomas and Ginsberg argued that the Due Process Clause did not provide such a substantive limitation on punitive damages. In the more recent Philip Morris v. Williams case, Chief Justice Roberts and Justice Alito joined the majority in reversing a state-court punitive damages award on the basis that the lack of a jury instruction violated due process. Justice Stevens joined the earlier dissenters (Scalia, Thomas and Ginsberg) while Souter, Breyer and Kennedy remained in the majority.

Thus, will a President McCain, who says he wants to appoint justices who will show judicial restraint, appoint justices like Scalia and Thomas who find no federal due process right implicated by state-court punitive damage awards, or will he appoint justices like Roberts, Alito, and Rehnquist who do? Conversely, will a President Clinton or President Obama appoint justices who have an active view of due process in punitive damage cases like Justices Breyer, Souter, and Stevens or one with a view like Justice Ginsberg? The analysis of constitutional limits on punitive damages does not fit into the usual 5-4 box into which many controversial cases seem to fit.

This is a question that deserves to be contemplated over the next many months as the future of the Supreme Court is debated.