In the majority opinion written by Justice Stephen Breyer, the court said the [$79.5 million punitive damages award] could not stand because the jury in the case was not instructed that it could punish Philip Morris only for the harm done to the plaintiff, not to other smokers whose cases were not before it.An interesting split. The liberal and conservative extremes form the dissent, and the two new justices are in the more centrist majority.
States must ''provide assurances that juries are not asking the wrong question ... seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers,'' Breyer said....
Chief Justice John Roberts and Justices Samuel Alito, Anthony Kennedy and David Souter, joined with Breyer.
Dissenting were Justices Ruth Bader Ginsburg, Antonin Scalia, John Paul Stevens and Clarence Thomas.
February 20, 2007
The punitive damages case.
Philip Morris USA v. Williams, the new Supreme Court case on punitive damages and due process looks very important. Here's Linda Greenhouse:
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I've not had a chance to do much more than skim the syllabus, yet, but at first glance, I admit to deep disappointment in our Fearless Leader and Justice Alito's signing on to a line of jurisprudence that Justice Scalia has dismissed as resting on an imaginary "excessive damages clause of the bill of rights," and consistently rejected in cases before the court. See TXO Production Corp. v. Alliance Resources, 509 U.S. 443 (1993) (Scalia, concurring); BMW v. Gore, 517 U.S. 559 (1996) (Scalia, dissenting).
This is a line of jurisprudence that perfectly illustrates the difference between legal conservatives and political conservatives: political conservatives might regard this as a laudable victory for big business, but I find it deeply disturbing that two Justices that David Savage today speculates were sent to give Our Hero reinforcements have seemingly ignored what the legal conservative's position plainly ought to be (and indeed has been). It was one thing for Justice Alito to use legislative history in Zedner, but this is worse by an order of magnitude, not because punitive damages are an issue, but because of what it throws into serious doubt either Roberts' and Alito's view on unenumerated rights, and/or their willingness to overturn even newly-minted precedent. The chances of Stenberg being overruled suddenly look extraordinarily bleak.
* I meant to say "not because punitive damages are themselves a major issue."
Yes, but it doesn't really rest on that basis. It rests on some bunk about using the fact that others were harmed in assessing the harm to the actual plaintiff. Alito could disagree with the underlying jurisprudence but accept it as precedent here. I agree with you substantively, by the way.
Speaking as a committed smoker all my adult life, I find the whole case contemptible. For Jeez sake we all knew smoking was bad from the outset. Putting smoke in your lungs is good for you? As if.
And the tobacco companies didn't tell the truth? So frigging what? Who on earth would expect them to? There was enough science to let you know it kills if you chose to listen. As for addictive, well who ever needs telling who's tried quitting?
You smoke you die. You don't smoke you die. Save the tax payer the money and make your own choice.
Viva Habana Libre!
"...because of what it throws into serious doubt either Roberts' and Alito's view on unenumerated rights."
Did you not pay attention to the confirmation hearings? Roberts explicitly endorsed substantive due process, even going as far to say that Griswold was correctly decided.
The promise to appoint justices in the mold of Scalia and Thomas wasn't fulfilled either because the President never intended to or, perhaps more plausibly, because the President has no idea what a justice in the mold of Scalia and Thomas is actually like.
A lot of people like me were angry about Roberts (another stealth candidate, who seemed too willing to acquiesce to liberal jurisprudence), however impressive and well qualified he was. Of course the decision on Roberts is positively unimpeachable compared to the fiasco of what was the Miers nomination. I wanted Scalia as chief (can you imagine Scalia in confirmation hearings!)and an on the record originalist/textualist to replace him as associate justice. What we actually got was one stealth candidate with impeccable credentials (Roberts), who may or may not be conservative, but who is certainly not a formalist. Alito is closer to what was promised, but still a long way from a Scalia or Thomas (at least from what we can infer from his past and his testimony).
Still, I don't think this case is in the same league of substantive due process, as this case is about procedural rights, so it's at least plausibly consistent with the due process clause. Though I don't have a strong opinion on this, perhaps you could show me the error or my ways.
Not speaking to the merits of the case, but instead addressing the concept of punitive damages, I wish Congress would do away with punitive damages. If, after more than 200 years, our legislatures have chosen NOT to punish a behavior, I don't feel comfortable leaving the question up to a handful of my fellow citizens. If something is so odious it is worthy of punishment, let the legislature enact a law setting out the appropriate fine (or appropriate term of confinement) so that we all may know what is or is not allowed and what penalties may be imposed for violation of the stipulated prohibitions. Else, we are left with an ad hoc system of punitive damages that makes a mockery of word justice.
Were there two dissenting opinions written? I find it odd that Ginsberg and Stevens would dissent using the same line of reasoning as Thomas and Scalia.
What this is though is a victory for pragmatism. It's nice for conservatives to stand on the 'principle' of strict constructionism, but the fact is that our country is not the same as it was when the bill of rights was written so while Simon may make a case for why the Constitution does not support the ruling as it is written, I myself see nothing wrong with justices-- and especially the Supreme Court-- making decisions based on the specifics of the case and its impact on society as a whole.
And yes, I actually (as a nonsmoker) agree with Peter about the question of tobacco companies, with one caveat: The Surgeon General came out with the mandatory warning on cigarette packs starting in 1965. Anyone who began smoking before that date could reasonably make a case that they were not warned until they were addicted. Hence I would still allow smokers who began smoking in 1964 or before to sue if they wanted to, but anyone who started since then knew it was dangerous to their health and so should not be able to sue anymore than people who sustained head trauma in automobile accidents while not wearing a seatbelt should be able to sue because they chose not to wear a seatbelt.
Ann,
How about a Libby thread?
The Court's "punitive damages" jurisprudence is approaching incomprehensibility. The five-justice majority (Breyer, joined by Roberts, Souter, Kennedy and Alito) says that harm to non-parties may be considered by the jury in deciding the degree of reprehensibility of a defendant's conduct, but may not be considered in determining the amount of monetary punishment due. Reprehensibility is relevant, says the Court, because it bears on whether any punitive damages are appropriate and if so, the extent of the punitive damages needed to achieve the deterrent and punitive purposes for awarding them in the first place.
Stevens dissents in an opinion saying that (a) he agrees completely with the Court's jurisprudence imposing substantive and procedural limitations on a state court's power to impose punitive damages, but (b) the Oregon courts adhered faithfully to the Court's precedents in this case. Ginsburg dissents in an opinion joined by Scalia and Thomas, saying that the Court errs procedurally in issuing its decision finding procedural error below. Her complaint is that the only error preserved by Philip Morris at the trial level related to the trial court's refusal to give an instruction that she finds incomprehensible, and that the Court ultimately never addresses. Like Stevens she concludes that the Court is reaching out to reverse a punitive damage award where the lower courts adhered to the Court's changing and not very precise precedents on the subject. Thomas files a dissent saying that he adheres to his view that the Constitution does not impose any substantive due process limitations on a state's power to authorize the award of punitive damages.
Simon and others say that there is no Constitutional basis for the Court's meddling in the state's policy making here. While I agree with that criticism, the most obvious failing of the Court's punitive damages cases is that it has made a bad system even worse. Two of the main problems with punitive damages are the arbitrariness of the awards and the irrationality of the punitive damages system as a form of economic regulation. Both of those failings have been discussed at some length on earlier threads here. The Court's jurisprudence is now adding incomprehensibility to the mix -- the idea that a jury will find its way through the goop that trial courts will now be required to include in their instructions, in order to comply with the Court's latest opinion, is breathtakingly fanciful -- without doing anything effective to solve the arbitrariness or irrationality problems. The Court's meddling will, unfortunately, measurably increase the administrative costs associated with the punitive damages system, which just makes the whole thing even more irrational as a form of economic regulation.
Accepting that a majority of the Court -- at least six justices, given Stevens' views -- is committed to using the Constitution to try to rectify the very real problems posed by state court awards of punitive damages, it would be far better if the Court bit the bullet, forgot about federalism limitations entirely, and just imposed some formula that the lower courts could apply (e.g., punitive damages will henceforth be limited to X times compensatory damages). That rule would have the same basis in the Constitution as the Court's current "punitive damages" jurisprudence -- i.e., none -- but at least it would be administratively workable. What the Court has crafted instead is a maze of confusing generalities and half-way measures that haven't solved the problem the Court is aiming at, but have created a whole host of new problems. The only common thread in the Court's cases is, as Ginsburg shows, that there is a significant likelihood of reversal whenever a state court jury makes a large award of punitive damages, regardless of how faithfully the state courts complied with the Court's precedents. What a mess.
Wonder if Greenhouse was weeping while writing the article.
Prof. Althouse said:
"An interesting split"
Makes it sound like bowling...skittles anyone?
Joe Baby - Why do you ask that? Or are you just looking for an excuse to attack Linda Greenhouse, who is at worst the second-best reporter in the country on judicial matters?
(For my money, the best is NPR's Nina Totenberg.)
What happens now?
I always liked that little guy, Phillip Morris. I am shocked to learn he is so wealthy but they say lawsuits find the people with deep pockets.
Ann, I've got a post up at Prawfs about the obscured precedents to today's decision:
http://prawfsblawg.blogs.com/prawfsblawg/2007/02/philip_morris_u.html
congrats on the NYT gig this month!
best,
dan
In the majority opinion...the court said...the jury in the case was not instructed that it could punish Philip Morris only for the harm done to the plaintiff, not to other smokers whose cases were not before it.
States must ''provide assurances that juries are not asking the wrong question ... seeking, not simply to determine reprehensibility, but also to punish for harm caused strangers,'' Breyer said
If American Idol wasn't starting I'd be reading this case. Because I'm having great difficulty working out how juries looking at harm caused to others to determine reprehensibility is not the same as punishing a defendant for harm done to others whose cases were not before it. Something tells me I won't understand any better after reading the opinion.
Is the concern that a jury might be trying to measure the actual harm (compensatory damages) to third parties and add that to the punitive damages in the case at hand? Otherwise, I don't see the distinction between punishing for harm to third parties or punishing because the harm done to third parties makes the defendant more reprehensible.
Hans -
Re Our Fearless Leader, I spat coffee at my monitor when Roberts said that in his hearings, and - for what little it might be worth - withdrew my support from him on the spot. That view persisted for a while, although I admit that I have since - grudgingly - changed my mind on the point; I failed to appreciate the significance of the shift of his nomination from replacing O'Connor to becoming Chief Justice. You can't take away from Roberts that he is singularly qualified to be Chief Justice of the United States, and I hope to disagree with him for many years to come.
"The promise to appoint justices in the mold of Scalia and Thomas wasn't fulfilled either because the President never intended to or, perhaps more plausibly, because the President has no idea what a justice in the mold of Scalia and Thomas is actually like. "
I agree, and as much as I appreicate Jan Crawford Grenburg's reporting, this is one area where I think she kind of got it wrong ("Greenburg's statement that 'Bush fulfilled his early vow to appoint justices in the mold of Scalia and Thomas' does rather beg the question of what Greenburg (and Bush) think that mold is ... Greenburg labels 'Roberts and Alito [as] two of the most conservative justices to reach the court in many years' ... [and while] [t]hat might be so[,] ... that does not make them in the mold of Scalia and Thomas").
As to the instant case -
Although the court frames its task as deciding "whether the Constitution’s Due Process Clause permits a jury to base that award in part upon its desire to punish the defendant for harming persons who are not before the court," the threshold question is whether the due process clause imposes limitations on punitive damages awarded by state courts, either substantively (i.e. how much is too much) or procedurally. That it does is a proposition that the court fabricated from whole cloth (and recently, at that; see BMW, supra (Scalia, dissenting)), and which in any event, as Justice Stevens (who authored BMW) points out, it today misapplies.
While I suppose one could defend Roberts and Alito as simply deferring to precedent, that would be no less troubling to me. In an appropriate time and place in the future, I will set out my view on stare decisis in some depth. For now, however, it suffices to say that while I must eat crow and confess that in the process of writing an essay explaining those views, I was derailed by the unpleasent experience suffered by most writers at some point or another -- the discovery of a piece of evidence that conclusively proves that he was wrong in an important predicate -- I remain of the view that inherent in Article III or not, stare decisis remains a part of our common law tradition, and as such can defend even wrongly-decided precedents. However, that principle has limits; by sheer coincidence, Justice Scalia made an observation in his BMW dissent that concisely sums up my view on stare decisis (at least as far as applies to the youthful cases at issue here): "When ... a constitutional doctrine adopted by the Court is not only mistaken but also insusceptible of principled application, I do not feel bound to give it stare decisis effect." If Roberts and Alito will not overturn BMW in deference to stare decisis, the chances that they will overturn a decision not especially more flawed yet all the deeper imbedded in the law, such as Roe, are effectively nil.
Lastly - Justice Stevens writes in his dissent that "It is far too late in the day to argue that the Due Process Clause merely guarantees fair procedure and imposes no substantive limits on a State’s lawmaking power." However, I prefer to believe, as did Ronald Reagan, that it is morning in America.
If Roberts and Alito will not overturn BMW in deference to stare decisis, the chances that they will overturn a decision not especially more flawed yet all the deeper imbedded in the law, such as Roe, are effectively nil.
Hmm. But think about legitimacy. BMW was recently decided and if they overturned BMW with O'Connor still out there on the lecture circuit and sitting by designation, there would be an uproar: "Oh, the conservatives are activists! Radically striking down the law!" "What does O'Connor think? It was her garbled analysis of the Excessive Fines Clause, does she think the court has turned right?" "Are female conservatives more moderate than male conservatives, and thus better for the nation?" And so forth. And they'd waste the legitimacy of the Court on a case that has little political resonance for Republicans generally.
To be more principled, is the hold of stare decisis stronger on a Justice if he voted in the wrongly decided case or if he didn't? It seems to me -- and I reserve the right to change my mind -- that a Justice is more principled in admitting a mistake ("Hey guys, I screwed up the Constitution, let me fix it...") than striking down recent and contentious law in what appears to be an attempt to further his political agenda and pay back his political debts.
That said, the line-up of this case looks rather ridiculous, but the case itself was more or less unimportant (the damage had already been done by BMW), and perhaps Roberts and Alito are brokering alliances that will hold in future cases you care about much more (say, when Kennedy will be the swing-vote). An optimist would note that Roberts and Alito and Kennedy seem to be voting together.
Richard:
"[I]t would be far better if the Court bit the bullet, forgot about federalism limitations entirely, and just imposed some formula that the lower courts could apply"
Quite. As Scalia observed in The Rule of Law as a Law of Rules, "[t]here are times when even a bad rule is better than no rule at all." None-the-less -- and perhaps this is one of those tims when my formalist federalism brings me to a different result than is produced by Ann's normative federalism (specifically, their ability to "bit[e] the bullet ... [and] forg[e]t about federalism limitations entirely" -- I would prefer the court unmuddy the waters by wading back out of a swamp it never had any business being in in the first place.
Wade - I have to disagree. During the Alito hearings, I'd watch the hearings and then drive home and listen to Totenberg repeatedly misrepresent what I had watched take place. Greenhouse is a good writer, but every article drips with her POV. And at least Dahlia Lithwick makes no pretense at neutrality. I tend think of Jan Greenburg as the best supreme court reporter we have - I know a lot of people disagree with that assesment, but she knows the material, writes fluently and keeps her own views hidden.
Mort -
"think about legitimacy. BMW was recently decided and if they overturned BMW with O'Connor still out there on the lecture circuit and sitting by designation, there would be an uproar..."
That reasoning -- and I don't say it's wrong, descriptively, although I think we'd both say it's illegitimate -- would presumably apply a fortiori to Stenberg?
"[The question will be asked,] [a]re female conservatives more moderate than male conservatives, and thus better for the nation?"
If that's the talking point, they'll be cutting their own throats, with an eye towards the next nomination. I'll be seeing Judge Sykes on Saturday, I'll ask her what she thinks. ;)
"An optimist would note that Roberts and Alito and Kennedy seem to be voting together."
That inspires very little optimism in me when it is Roberts and Alito voting with Kennedy rather than Kennedy voting with Roberts and Alito. In fact, it inspires a sense of impending dread.
The Supreme Court doesn't have to find an "excessive damages clause" in the Bill of Rights, because the concept of excessive damages is already enshrined in common law. That means it is covered by due process, which the Constitution DOES guarantee. The Supreme Court could throw it out for the same reason it could deny states the right to have prosecutors select all twelve jurors -- because it violates fundamental principles of the common law system the Constitution is protecting.
Jurors are not supposed to seize money from one person and give it to another just because they think the first person is extra extra bad. If legal conservatives think they should have that right then legal conservatives are idiots, and it is a damned good thing we've only got two on the court.
The Supreme Court doesn't have to find an "excessive damages clause" in the Bill of Rights, because the concept of excessive damages is already enshrined in common law.
No, excessive fines is in the Constitution, it just doesn't have anything to do with punitive damages awards. It has to do with government imposing fines without reason to enlarge its coffers.
Simon,
I'm assuming you didn't deliberately misunderstand my point, so I'm going to clarify it in good faith. While no actual exchange of votes is made, through the workings of friendship and wooing, Roberts and Alito vote with Kennedy now and Kennedy votes with Roberts and Alito later.
That reasoning -- and I don't say it's wrong, descriptively, although I think we'd both say it's illegitimate -- would presumably apply a fortiori to Stenberg?
And I think we'll see a weirdly narrow ruling that fails to satisfy movement conservatives in those cases, too. But it will limit abortion rights in reality.
Seven,
The concept of making whole is basic tort law and is enshrined in common law. The legislature has to act to eliminate it and is assumed to preserve it unless it says otherwise.
Either way, it is up to the legislature to rectify and correct problems like these.
Not if they're problems of constitutional dimension...
Mort - clarification accepted. I suppose it gives some ground for hope that the alliance is purely strategic, but it seems to exact a high cost on the ground. It's one thing to provide a gentleman's sixth, but to provide a winning vote goes a little further. This case is not the end of the world, but it's unsettling.
This is the only country i know of where you can get awarded millions of dollars for being an idiot...
Are you really going to sit here and tell me that the Congress, the Executive, and the States do not or should not have the responsibility to determine issues "of constitutional dimension"?
No, but I'm arguing that SCOTUS does have jurisduction over such issues. You suggested it doesn't.
Oh, and you're crazy if you think that Congress or the Executive can determine the scope of its own powers. The defeats the point of having a Constitution.
Also, you can't amend the Constitution by statute.
Simon, thanks for the response. Though my respect for Roberts has grown, I cannot say I have been swayed that his approach is preferrable. Scalia has had such an impact on the legal culture because he's right, and he's not afraid to say he's right.
I don't see a need to retreat to a lesser, watered down, half-hearted originalism (which doesn't even claim to be originalism!) when the originalists and textualists have been successful, in my view, of shifting the legal culture toward their position.
Roberts may be more successful in writing less controversial opinions, but the long-term impact in favor of originalism and textualism will certainly be less profound; even if he manages to deliver on Roe and others. Having had Roberts reject the title and method of originalism in favor of a more holistic something or another, I would consider a triumph of his philosophy as a blow against what Scalia and Thomas had been struggling to further. Perhaps not the worst sort of blow, I'll take a non-originalist judicial restraint justice over a Warren Court activist, but a blow nevertheless.
I am not a lawyer, and I haven't really explored this issue much. But the first parapgrah of Breyer's opinion seems to make sense to me. One cannot be deprived of property without due process of law; taking property based on harm caused by third parties is then taking property without due process of law (there wasn't a separate trial determining their guilt to third parties). Maybe it's far from air tight, but it seems like a plausible construction, even from an originalist or textualist perspective.
From the majority opinion (am I crazy to find it persuasive?):
In our view, the Constitution’s Due Process Clause forbids a State to use a punitive damages award to punish a defendant for injury that it inflicts upon nonparties or those whom they directly represent, i.e., injury that it inflicts upon those who are, essentially, strangers to the litigation. For one thing, the Due Process Clause prohibits a State from punishing an individual without first providing that individual with “an opportunity to present every available defense.” Lindsey v. Normet, 405 U. S. 56, 66 (1972) (internal quotation marks omitted). Yet a defendant threatened with punishment for injuring a nonparty victim has no opportunity to defend against the charge, by showing, for example in a case such as this, that the other victim was not entitled to damages because he or she knew that smoking was dangerous or did not rely upon the defendant’s statements to the contrary.
For another, to permit punishment for injuring a non-party victim would add a near standardless dimension to the punitive damages equation. How many such victims are there? How seriously were they injured? Under what circumstances did injury occur? The trial will not likely answer such questions as to nonparty victims. The jury will be left to speculate. And the fundamental due process concerns to which our punitive damages cases refer—risksof arbitrariness, uncertainty and lack of notice—will be magnified.
I could not resist the opportunity to add my unnecessary comment to this long line of legal pondering, but as I am a member of the class of citizens most victimized by the courts, the politicians, and the business community(though, undoubtedly no collusion exists), and at the same time it seems, most feared by all three; as the average 'layperson', it seems my professional obligation to at least point out the outward appearance of this 'decision'.
It makes this venerable and long honoured Court look shallowlly mired in circumspectial worries over dollar-value formula calculations, much like a low-level administrative law judge on a workman's compensation case.
From such a decision, in the future, businesses will carefully estimate how much they need to charge customers to cover the the cost of penalties and legal fees, while still making a healthy return on the next newly-discovered evil deed. With no worries as to how a 'jury of their peers' might react, or overreact, because the penalty fits nicely within the business model forecast and stock prices are nicely insulated (don't you think Phillip-Morris closed higher?) there need be no topic off the table as to what is "doable" as long as profits are upheld.
The question was not raised as to the right of this jury to levee such a penalty, (hang on! I have to back into this logic just because the court did in explaining the majority opinion) only the court's disagreement with the amount and it's assumption that juries are made up of 'dumb laypeople' who can't distinguish as to what penalty might be necessary in perspective to the size of the wrong done and the financial size of the wrongdoer. The dollar value of the penalty(spanking) seemed much too large for the value of one smoker's agonizing end, and to the majority of the court justice's opinion, more than anyone should recieve; hence there must be something wrong(or in this case something procedurally missing, are we talking Miranda?) with the process that reached such a verdict.
We might argue who should recieve the benefits of such a sum. Without doubt the necessity of it is, and should be, to deter the culprit from continuing in such behavior, thereby protecting us, the average 'layperson', in the future; NOT JUST to compensate for excessive and INTENTIONAL wrongs or policies which destroyed lives and caused pain.
Now this decision could be the result of flashbacks to fond rememberances of great political fundraising dinners( I hear some of those lobby guys can really cook and I know you don't get to be a Supreme Court Justice based on just being a straight A student), and I hope it isn't based on something as thin as class arrogance. Truthfully though, I believe that it is a decision reached by good men trying too hard to be all-knowing and have a black and white answer to address a grey question. This is one of those areas which falls under "by the people, for the people", yes, Mr. Lincoln. And should have been left in the realm in which it belonged. (I didn't hear a soul on the court say that O.J. should have kept the money) Removing the human factor from law and it's results, taking away the jury's ability to recommend a penalty in favor of a formula which one might find on the back of a traffic ticket and the result of course, the ones who can afford to speed, will speed until, or if, caught.
Mort -- Nothing in the Consitution gives the Court the power you are imputing to it. In fact, that power is explicitly given to the Congress because the Congress sets up the Court.
Seven, the Supreme Court unquestionably has the power to dismiss a case or overturn a verdict for violating either common law or the Constitution. That's what being the supreme judicial authority *means*. That's what appeals courts DO. Bear in mind that the Constitution was written for people who knew how the legal system worked.
You're correct that the Constitution doesn't explicitly describe a power for the SC to declare laws unconstitutional. But it is an obvious corollary to the power it explicitly DOES have, to throw out every single case tried under a law on the grounds of that law violating the Constitution. Declaring the law unconstitutional just saves everyone a lot of trouble -- prosecutors and defendants don't have to spend time and money trying a case all the way to the Supreme Court just to have it inevitably thrown out.
In fact, that power is explicitly given to the Congress because the Congress sets up the Court.
Actually, Art. III sets up the Court.
I have to admit that I'm amazed that anyone is actually taking seriously enough to engage the suggestion that "the judicial power" vested in the court by Article III does not extend to invalidating acts that transgress the boundaries of the Constitution in judicially-cognizable cases. For much the same reason as I refuse to enter into a debate, this late in the day, as to whether oxygen is required for combustion, the suggestion to the contrary scarcely seems to warrant response.
Mortimer Brezny said...
"[Y]ou're crazy if you think that Congress or the Executive can determine the scope of its own powers. That defeats the point of having a Constitution."
I can infer your view of Garcia from that. ;) I remain of the view that "after the passage of [the Seventeenth Amendment] it ceased to be rational to accord broad deference to Congress when it 'make[s] inroads into the states' autonomy' on the theory that '"[t]he political process ensures that laws that unduly burden the States will not be promulgated"'".
Nothing in the Constitution suggests that the Supreme Court is the sole or final arbiter of the Constitution. It's merely the highest court.
Well, somebody has to point out the glaringly obvious to Seven, so it might as well be me.
Courts are the arbiters of the law, Seven. That's what a court IS. The highest court is the final arbiter of the law. That's why it is called "the highest court". You might as well say "police have nothing to do with catching criminals. They're merely police".
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