Third and Long for Philip Morris?

With great effort, I turned my focus off Alabama football and went up to the Supreme Court this morning for what turned out to be some pretty incredible arguments in a long-fought case involving a $79.5 million punitive damages award against tobacco giant Philip Morris.

The justices took their seats promptly at 10, which abruptly ended the heated debate I was having with die-hard Gators' fan Bob Barnes from the Washington Post about Saturday's game. Bob is a great guy and terrific reporter, so it saddens me to consider how he grew up saddled with the misfortune of being a Florida fan.

I was somewhat worried about keeping my focus during the arguments, but fortunately Justice Souter struck early with some of his most pointed questions ever about why the Supreme Court should be stepping in to the case and cutting off state law claims. From then on, it was 60 minutes of non-stop action.

"What business do we have to do that?" he asked Mayer Brown's Stephen Shapiro, representing Philip Morris, before admonishing him that it was a "steep hill for you to climb."

I was certain Philip Morris would never recover after Souter, Ginsburg and Breyer moved the ball so quickly and drew blood early. But Shapiro never quit. He did a herculean job of fending off all those questions--even without help from Scalia or Roberts, who tend to jump in and propose helpful answers to Souter.

Shapiro was so impressive in keeping his composure and his focus--coupled with his obvious preparation--that by the end his half hour the field seemed a little more level.

And then, there was a surprising twist in the second half.

But first, a little pre-game: This marks the third time this case has reached the court. Just last year, the justices sent the case back down to the state court, strongly suggesting the award was out of whack and ordering it reevaluate whether it was too harsh.

The Oregon Supreme Court, on remand, looked first at some state law issues and decided the $79.5 million was just fine. That decision infuriated Philip Morris, which asked the Court to step back in and slap the Oregon court in line for allegedly "defying" its decision last year.

The issue in the case is a technical one. As argued and briefed, it does not ask the big question of whether the punitive damages award is so excessive it violates the Constitution. Instead, it looks at the obligations on state courts in applying new constitutional standards handed down by the Supreme Court.

During the arguments, Justice Breyer admitted that he had voted to hear the case because he initially thought the Oregon Supreme Court did an end-run around the Supreme Court's 2007 ruling. But after reading the cases and the briefs, he said he was inclined to think otherwise--and that the Oregon court may have been properly following well-established state law when it kept the award intact.

But the idea of giving the Oregon court a pass caused much consternation. Several justices, Souter included, worred that state courts could too easily evade constitutional rulings in other cases if they were to uphold the Oregon Supreme Court decision.

By the end of the arguments, Chief Justice John Roberts leaned in with a surprising play of his own: What if, he asked, the Court just went ahead and tackled that bigger question of whether the award was so excessive it violated the Constitution?

If the justices took that route, it  would mean more briefing and possibly more arguments later this term--and the prospect of a major ruling on the issue. They could discuss that in their conference on Friday.

The question---whether there are constitutional limits on punitive damages--divides the justices in surprising ways. Thomas and Scalia, for example, insist Big Business has no constitutional claim to limiting punitive damages. They say there's nothing in the Constitution limiting punitive damages, just like there's nothing in the Constitution protecting a woman's right to an abortion.

More liberal justices, like Stephen Breyer and David Souter, have sided with Big Business and voted to impose some constitutional limits.

If the Court expands this case, it would be the first time Roberts and Alito have weighed in on this issue. At this point, there are few clues on whether they would side Thomas and Scalia (and Ruth Bader Ginsburg, who also opposes limits for different reasons than her conservative colleagues) and vote against Philip Morris.

If they did, that would mean a major reversal of Supreme Court business law--and open the door for greater punitive damages awards in the future.

And now, back to football. I have to call Bob Barnes and continue our debate.

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