July 18, 2008

Larry Tribe's Oral Argument in TXO v. Alliance Resources Was One of the Best, According to Linda Greenhouse

The New York Times' Linda Greenhouse, responding to a reader question about the best and worst Supreme Court arguments she has witnessed, identified Larry Tribe's performance in a punitive damages case, TXO v. Alliance Productions, as one of the best:

As for the best — I've seen many terrific arguments. One memory that always brings a smile was an argument by Laurence H. Tribe, the Harvard law professor, in a 1993 punitive damages case, TXO v. Alliance Resources. He had been brought in after the court, over his client's opposition, had agreed to hear the other side's appeal — not a good posture to be in. Larry completely changed the theory of the case — turning a likely loser into a case that during the argument appeared to be making unexpected headway. As this was unfolding, to the surprise of nearly everyone, Justice Scalia said to him with evident irony — "Professor Tribe, I don't remember this argument in your opposition to cert" (knowing, of course, that Larry had nothing to do with the case at that stage of the proceedings) — to which Larry replied without breaking stride: "Justice Scalia, I like to think it was there by implication." (This is my memory — I haven't checked the transcript — but he won the case.)

If Greenhouse is right about Tribe's influence on the outcome of the case, perhaps that explains the fractured Court in that case. The justices could not put together a five-justice majority to answer whether the amount of punitive damages violated due process. Three justices (Stevens, Rehnquist, Blackmun) said courts should review punitive damages for "reasonableness," and they concluded that the award in that case passed the test. One justice (Kennedy) thought a more stringent test was appropriate, but he thought the award in TXO barely passed the test. Three justices (O'Connor, White and Souter) said a more stringent test was appropriate and the award did not pass the test. And two justices (Scalia and Thomas) said the Supreme Court has no business reviewing state court punitive damages awards for excessiveness. If Greenhouse's assessment is correct, O'Connor's opinion might have been the majority opinion going into the argument, but maybe Tribe persuaded two of the others (possibly Kennedy and Rehnquist) to jump ship. If so, Tribe successfully delayed the Supreme Court's crackdown on excessive punitive damages for three years, when the court revisited the issue in in BMW v. Gore.

Thanks to my partner David Ettinger for the tip.