Scalia v. Philip Morris?

The Supreme Court yesterday turned back two cases to the lower courts on the basis that the punitive damage awards were out of whack with what Scotus had laid out as acceptable earlier this year in State Farm v. Campbell. In that case, the Court threw out a $145 million punitive damage award stemming from a car accident in which actual damages had been awarded in the amount of $1 million. The court's rationale was that a punitive damage award ought to bear some resemblance to actual damages, lest it violate the principle of due process. Yesterday, the court asked lower courts to review a $3 million award in a car accident and an $80 million verdict against cigarette-maker Philip Morris.

Limiting punitive damage awards has been a conservative goal for some time — President Bush wants to do this in medical malpractice cases — so it threw some for a loop when Justice Scalia dissented in State Farm, adhering to the principle of textualism and finding no part of the Constitution that caps punitive damage awards. These cases today didn't warrant a new opinion, so no further illumination of the issue will be forthcoming from the Great Scalia, at least at this time. But the matter can give conservatives bent on certain tort reforms pause as to whether their favored remedies pass constitutional muster. Could Congress end up trampling states' rights? The court has gone down the road of establishing an arbitrary guidepost: Justice Kennedy's assertion that punitive damages ought to be set at a "single-digit ratio." It is starting to sound a bit like what one might call judge-made law.