Adam Cohen just has not been abused enough for this mischaracterized blast from Civ Pro past: "These activist decisions, which give corporations valuable constitutional privileges, relied on the votes of conservative justices, who are supposedly skeptical of 'judge-made' rights. Justices Sandra Day O’Connor and Anthony Kennedy provided key votes for BMW. Justice Kennedy wrote the State Farm 'single-digit ratio' opinion, and Justice O’Connor and former Chief Justice William Rehnquist joined it." The criticism from a commenter on the WSJ law blog is close, but not quite on the mark -- it says, "The Times’ naming of O’Connor and Kennedy as two 'conservative' justices who were instrumental in forming this view of due process vis-a-vis punitive damages is particularly odd, though not unsurprising. No mention of the two justices who might rightly be considered 'conservative' having opposed the reading of a right to be free from punitive damages into the constitution?" Yes, Scalia and Thomas dissented in both BMW v. Gore and State Farm v. Campbell -- but so did Ginsburg. Toward the end of his piece, Cohen admits, "The question of whether there should be constitutional limits on punitive damages has proved difficult to resolve, and it has caused divisions in both the court’s liberal and conservative blocs. (It is one of the very few issues in which John Paul Stevens votes with corporations and Antonin Scalia votes against them.)" The opposition to having the U.S. Supreme Court set limits on how much state court juries can penalize corporations is not inherently conservative or liberal -- it is radical.
Justices like O'Connor, Kennedy, Stevens, Souter and Breyer are grouped together less for their partisan tendencies than for their inclination toward things seeming right. O'Connor's infamous balancing tests were the perfect example of this essentially moderate mindset: on the one hand there's X, on the other there's Y, and we're not going to go all out for either X or Y, but instead try to find the mushy middle. As I've noted before, this is really the way most people think anyway, which is why O'Connor was a fairly popular justice outside the academy and left and right wings. If you didn't have to memorize the four factors of her Newdow concurrence, you had little reason to begrudge them. Similarly, it's just common sense that $4 million in punitive damages for a harm that commanded only $4000 in compensatory is too much, and that $145 million in punitives for $2.6 million in compensatory (the jury's original award, reduced by the trial court to $1 million) is almost as disproportionate. Yet Scalia, Thomas and Ginsburg resolutely stake out the ground in which common sense is tossed aside in favor of their views of the Constitution.
Incidentally, Ginsburg's BMW dissent shows her style to be finer than Scalia's. She remarks,
The Court is not well equipped for this mission. Tellingly, the Court repeats that it brings to the task no 'mathematical formula,' no 'categorical approach,' no 'bright line.' It has only a vague concept of substantive due process, a 'raised eyebrow' test, as its ultimate guide. In contrast to habeas corpus review under 28 U.S.C. § 2254 the Court will work at this business alone. It will not be aided by the federal district courts and courts of appeals. It will be the only federal court policing the area. The Court's readiness to superintend state court punitive damages awards is all the more puzzling in view of the Court's longstanding reluctance to countenance review, even by courts of appeals, of the size of verdicts returned by juries in federal district court proceedings. And the reexamination prominent in state courts and in legislative arenas serves to underscore why the Court's enterprise is undue.C.f. Scalia's concluding paragraph:
The relationship between judicial application of the new "guideposts" and jury findings poses a real problem for the Court, since as a matter of logic there is no more justification for ignoring the jury's determination as to how reprehensible petitioner's conduct was (i.e., how much it deserves to be punished), than there is for ignoring its determination that it was reprehensible at all (i.e., that the wrong was willful and punitive damages are therefore recoverable). That the issue has been framed in terms of a constitutional right against unreasonably excessive awards should not obscure the fact that the logical and necessary consequence of the Court's approach is the recognition of a constitutional right against unreasonably imposed awards as well. The elevation of "fairness" in punishment to a principle of "substantive due process" means that every punitive award unreasonably imposed is unconstitutional; such an award is by definition excessive, since it attaches a penalty to conduct undeserving of punishment. Indeed, if the Court is correct, it must be that every claim that a state jury's award of compensatory damages is "unreasonable" (because not supported by the evidence) amounts to an assertion of constitutional injury. See TXO, supra, at 471 (Scalia, J. concurring in judgment). And the same would be true for determinations of liability. By today's logic, every dispute as to evidentiary sufficiency in a state civil suit poses a question of constitutional moment, subject to review in this Court. That is a stupefying proposition.Even when they're both dissenting, Ginsburg calls the majority's decision "undue" on its own terms, while Scalia races down the slippery slope to "stupefying."
Anyway, the point is that Cohen is missing the point. The Andrade v. Lockyer decision, in which O'Connor, Kennedy, Thomas, Scalia and Rehnquist decided that 50 years imprisonment for violating California's three strikes law by shoplifting is permitted under the Eight Amendment, actually sounds a lot like the BMW and State Farm cases. O'Connor's opinion for the majority says, with no obvious ironic intent: "Thus, in this case, the only relevant clearly established law amenable to the 'contrary to' or 'unreasonable application of' framework is the gross disproportionality principle, the precise contours of which are unclear, applicable only in the 'exceedingly rare' and 'extreme' case. The final question is whether the California Court of Appeal’s decision affirming Andrade’s sentence is 'contrary to, or involved an unreasonable application of,' this clearly established gross disproportionality principle." (emphases added) In other words, O'Connor, Kennedy and Rehnquist know that some numbers are too big, but they cannot tell you ahead of time which are too big, and so years in prison and millions in damages become subject to Potter Stewart's methodology.
As on most tort matters, Overlawyered is recommended reading.