Dissenting Viewpoints: Three Supreme Court Judges on Damages


Dissenting Viewpoints: Three Supreme Court Judges on Damages

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pillarsThree of the Supreme Court Justices – Thomas, Scalia and Ginsburg – issued dissents in Campbell.

Justice Thomas simply reiterated his statement from concurrence in Cooper, “I continue to believe that the Constitution does not constrain the size of punitive damages awards.

Justice Scalia issued a similarly brief statement stating, in part, that, “[T]he Due Process clause provides no substantive protections against ‘excessive’ or ‘unreasonable’ awards for punitive damages. I am also of the view that the punitive damages jurisprudence which has sprung forth from BMW v. Gore is insusceptible of principled application; accordingly, I do not feel justified in giving the case stare decisis effect.”

Ginsburg issued a more extensive analysis in which she reiterated the objections she had earlier stated in her Gore dissent. She then went on to address the specifics of the Campbell case.

“Neither the amount of the award nor the trial record, however, justifies this Court’s substitution of its judgment for that of Utah’s competent decisionmakers. In this regard, I count it significant that, on the key criterion of ‘reprehensibility,’ there is a good deal more to the story than the Court’s abbreviated account tells.”

She then proceeds to detail aspects of the case which justify the size of the award under Gore‘s reprehensibility analysis.  Ginsburg also stated that punitives were a matter best left up to the states.

“In a legislative scheme or a state high court’s design to cap punitive damages, the handiwork in setting single-digit and 1-to-1 benchmarks could hardly be questioned; in a judicial decree imposed on the States by this Court under the banner of substantive due process, the numerical controls today’s decision installs seem to me boldly out of order.”

Several amici filed briefs expressing similar viewpoints. The Association of Trial Lawyers of America’s brief called for the court to reverse Gore:

“The precedents relied upon by the Court do not support such a radical expansion of the substantive component of the Due Process Clause. …Federal substantive due process review adds little to the protections against excessive punitive damage awards already provided by state courts employing standards developed at common law. …Constitutional review of punitive damages cannot provide more detailed or precise rules  without abandoning the roots of due process in traditional practice and appearing to impose the personal convictions of the majority of the Court.”

A group of twelve State Attorneys General signed onto a brief both defending the practice of plaintiffs acting as “private attorneys general” in obtaining punitive damages, as well as asserting the right to consider actions which occur outside their jurisdiction:

“If the Court should rule that out-of-state or ‘other acts’ evidence is irrelevant in a punitive damage case, it effectively renders de minimus any punitive damages being awarded in a case, consequently eliminating the interest of private attorneys general in undertaking such actions.”

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