Partner, Akin Gump; Founder, Scotusblog
Wednesday, June 25, 2008 3:00 PM
Tom Goldstein, a partner at Washington law firm Akin Gump and the founder of Scotusblog, was online Wednesday, June 25 at 3 p.m. ET to discuss the court's rulings today, the most notable of which were about death penalty sentences for child rape and the size of the damages awarded in the Exxon Valdez oil spill.
The transcript follows.
Tom Goldstein: Hi everyone. It's a pleasure to be here with you. It was a big day at the court, and we have one more to go -- tomorrow, when the Second Amendment guns case will be decided.
New York: By declaring war on punitive damages, we're assuring ourselves devolving as a society. Without these damages, it becomes rational to break the law, because you only have to return your proceeds if caught. If the only punishment bank robbers faced was to give back the money if they were caught, then everyone would rob banks.
Tom Goldstein: This captures a big part of the debate within the Supreme Court: How much punishment is enough to deter? And what kind of line has to be drawn in order to ensure that punishment isn't too uncertain -- one jury awards massive punitive damages and another awards none. The court is in a balancing act.
Washington: First, while the Court has the power to limit punitive damages, it shouldn't -- they are assessed by juries, representatives of We the People. Do you think any legislation will come from this, telling the court to back off? Second, the court decides for child rapists, and against tribes' ability to manage land within the boundaries of their reservations? These were people who clearly fell under the Montana exceptions! Once again the Supreme Court is undermining tribes. We may be citizens, but we retain our sovereignty. We can just confiscate the non-Indians' land within the tribal reservation borders and say "tough luck." International law has our backs. Better to be a child rapist than an Indian in the U.S.!?
Tom Goldstein: I don't think the comparison is quite fair -- the decisions cover very different ground. As for the Exxon Valdez ruling, the court is exercising a very unusual power (for modern times) -- it is literally making "common law" to fill in the gaps until Congress writes a statute. Today's Exxon ruling could be overruled, though a new statute wouldn't apply to this case.
Boston: Justice Kennedy's statement that the court is ruling against execution for child rape because of evolving social standards makes no sense. If the standards were evolving, who better to address it than the legislature of each state? Obviously, the Justices are just making up law as they go along.
Tom Goldstein: The court's precedents say that it will look at "evolving standards of decency." That standard infuriates backers of the death penalty, as this comment indicates. It does call for the exercise of a pretty awesome judicial power, and these cases recently have been decided by very narrow 5-4 majorities.
I don't understand the dissent: Can you explain to me how the four Justices reasoned on the rape/death penalty case? It seems like a no-brainer to me -- if you don't kill the victim then you won't be subjected to the death penalty; if you do kill them, all bets are off. Doesn't it just make a lot more sense to take the death penalty out of the picture to maybe save some lives? I agree that rape shatters a persons life, but if the perp knows there is no difference if they kill the victim or not, aren't you going to get more dead victims? Tell me what I don't get here. By the way, for what it's worth, I'm a woman and a mom. Oh, one other question -- aren't the four dissenters also all anti-abortion and pro-life?
Tom Goldstein: The dissenters in the child rape case make two points: First, the majority is wrong to say that because only five states apply the death penalty in this context there is a consensus against applying the death penalty for child rape. They believe that more states would have adopted those laws if it weren't for an earlier Supreme Court precedent strongly suggesting that you couldn't have the death penalty for any rape. Second, the dissenters say that the majority is just making up policy arguments that are the job of the legislature. The four dissenters are certainly more conservative than the majority and tend to believe that there is limited or no constitutional protection for a right to an abortion. This isn't an abortion case, of course -- but the similarity is that those Justices do believe that these are legislative choices, not Constitutional ones.
Baton Rouge, La.: Why did the court in Kennedy purposely carve out nonhomicide crimes against the state?
Tom Goldstein: I'm not quite sure I understand the question. The basic rule from the decision is that you can't have the death penalty for nonhomicide crimes against individuals, because of a social consensus against that punishment. The opinion does leave room for the death penalty for special crimes like treason.
zcezcest1: What is the Supreme Court doing in the business of deciding "how much"? That makes no sense at all. Given the spill happened nearly 20 years ago, and that cases had been presented to various courts for decades, why would this court -- with less understanding of the issues than any prior court -- be given special knowledge on what the right amount of punitive damages should be? Operating supertankers comes with a degree of risk, but it is an "extremely high consequence" business. Talk about judicial activism! As for how punitive the damages are, that is about three days of profits for Exxon, so I'm thinking the actual pain they feel won't be much. This whole things feels kind of slimy and oily.
Tom Goldstein: The court's job here is the same as the lower courts when it comes to figuring out the law (as opposed to the facts), except that it's literally "Supreme." The case certainly has taken forever, which is a bad thing for everyone involved. Whether the court got the law right or wrong definitely is debatable -- and three Justices disagreed with the decision -- but it definitely was doing its job. One caveat: There is another debate in the case (along the lines of the death penalty case) about whether this actually ought to be a legislative question. That's really the point of the Stevens and Ginsburg dissents.
Collegeville, Pa.: What do you think the anti-death penalty movement (i.e. those who want it totally abolished) will feel about the decision? On the one hand there is one less crime for which the death penalty can be applied, but on the other hand there is the risk that the court is "civilizing" the death penalty.
Tom Goldstein: There certainly is an abolitionist movement, though like most movements -- take conservatives or liberals as an example -- different people in it have different views. I expect they will view the decision very favorably. It draws a bright line forbidding the death penalty for nonhomicidal crimes against individuals.
Northern_Brewer: Much as we all may dislike Exxon, this ruling is about law, not emotion. According to the law, plaintiffs already have been compensated for actual damages. What is significant here is that there is now some guidance on upper limits of reasonable punitive damages.
Tom Goldstein: That's definitely a critical part of it. The ultimate debate isn't about compensation but how much in punitive damages is necessary to punish and deter.
Anonymous: Are we likely to see a different split on the gun issue?
Tom Goldstein: It's very difficult to tell what that lineup will look like. The court does split ideologically in some cases, as it did in the death penalty decision, but that trend has decreased this term. The guns case also has several issues -- e.g. what is the nature of the Second Amendment right and how does that affect the District's law -- that could cause it to divide differently depending on which part of the case is at issue.
Arlington, Va.: Does holding the gun decision until the very last day indicate the intent to uphold or reverse the existing D.C. law? Or is there no correlation?
washingtonpost.com: Upcoming Discussion: Professor Analyzes Gun Ban Ruling (washingtonpost.com, 2 p.m. ET on Thursday)
Tom Goldstein: Note that there will be a discussion of that case too.
There isn't any correlation -- the fact that it hasn't been decided just means that it isn't done. That's not surprising given the large number of novel issues in the case for the Court.
Washington: Does the Exxon Valdez ruling (one-to-one punitives) have implications for the multitude of federal and state treble damages statutes?
Tom Goldstein: Nope -- the court cites those with approval but says they address a different circumstance.
Northern Virginia: In the Louisiana death penalty case, Justice Kennedy wrote that a national consensus existed against the death penalty for child rapists. That said, wouldn't the passage of laws granting the option to go for the death penalty -- including so many that had been passed recently -- seem to belie that notion? It seems more accurate to say that the consensus was being challenged.
Tom Goldstein: This captures the debate on the court -- the majority thinks the states that recently adopted these statutes are too few; the dissent finds them very significant.
New Mexico: While I was excited about the ruling in Giles, I think in the long-term Exxon will have a more significant impact on society and culture. It is part of the legal system's role not merely to decide guilt or innocence, but to also punish. It is an extremely odd result to say that the jury gets to decide who gets the death penalty, yet cannot get to decide the nature of the punishment against a corporate wrongdoer. While this may be a "victory" for Exxon in the long run, I think it heralds a significant tread back to the trust-busting days. The result that the Supreme Court reached violates fundamental cultural and social norms of decency and proportionality -- it will not stand. The only question is how long it will take to fall.
Tom Goldstein: I don't know whether that's right in terms of what ought to happen (i.e. that the decision will be overturned), but I do doubt it actually will happen. Congress and legislatures tend to give the Supreme Court a lot of deference on these issues.
Jersey City, N.J.: We see the court looking to foreign law to back up certain social positions, such as the court majority's opposition to death penalty laws. Do you think the court might take notice of how relatively permissive -- compared to, say, European law -- its abortion law jurisprudence has been?
Tom Goldstein: Today's death penalty decision is pretty notable for its emphasis on domestic law and the court's own judgment, rather than foreign law. The majority seems to want to stay away from that issue, in contrast with some prior rulings limiting the sweep of the death penalty.
Boulder, Colo.: Isn't Souter's suggestion that due process limits the amount of punitive damages -- possibly to a one-to-one ratio with compensatory damages -- completely bogus? After all, compensatory damages are potentially unbounded once liability is established. The tortfeasor can be liable for the entire extent of the injury, even when that extent wasn't foreseeable. Why doesn't due process limit compensatory damages, then?
Tom Goldstein: It actually might. The court hasn't said that due process permits a jury to impose an irrational compensatory damage award -- i.e. one intended to make up for the injury. But you are right that the variability of punitive damages will depend a lot on the size of the first, compensatory award -- i.e. the punitives can be just as big as a very big compensatory award.
Washington: Is there a principled reason that the justices who decry "legislating" form the bench went along with a decision to select a one-to-one ratio for punitive damages in the Exxon case? This seems to be the very thing they claim the court should not do.
Tom Goldstein: Justices Scalia and Thomas -- who oppose Constitutional limits on punitive damages on the ground that there is no limit in the Constitution -- concur today, saying they still believe in that position. This is a case in which the Court is literally making "common law" according to a long tradition of maritime law. Some of the dissenters, by contrast, say that this is Congress's job.
Tom Goldstein: Just a note that I'm not posting a number of comments expressing the view that this decision is just a slap on the wrist and a windfall for Exxon because they don't really ask a question about the rulings. I did want to acknowledge them, however.
Kodiak, Alaska: What is it about common law that warrants such a low ratio? Also, wouldn't a lower ratio perhaps have the unintended consequence of increasing compensatory damage awards so that punitives can have some teeth?
Tom Goldstein: The majority conducts a survey of jury verdicts and various state and federal laws. The verdicts, it believes, generally show a ratio below one-to-one. The statutes have some verbal formulations and some mathematical ones -- most commonly three-to-one, two-to-one and one-to-one. The majority concludes that you need a number to produce a consistent result, and it thinks the one-to-one ratio is best because it most closely approximates the average jury verdicts. In general, the court believes that punitive damage awards are too high and unpredictable, so it's not surprising that it selected a low multiplier.
Blogs: Who is more influential, David Lat or Peter Lattman?
Tom Goldstein: The question relates two very different but very popular Web logs: abovethelaw and the Wall Street Journal law blog. The answer is Lat, who writes abovethelaw.
Portland, Ore.: What do you think the practical effects of the Exxon decision will be in terms of future litigation? Will large law firms be less likely to take on cases on a contingency basis because of lower expected damages? And how do you think businesses that face a high risk of litigation (e.g. pharmaceutical companies, toy manufacturers, automakers) will change their overall legal strategies?
Tom Goldstein: The Exxon decision by its terms won't have a huge effect -- it governs only maritime cases involving reckless conduct and substantial compensatory damages. There aren't many cases like that.
But the decision is significant because the court does reiterate its constitutional punitive damage jurisprudence, and strongly suggests that it would have adopted a one-to-one ratio as a matter of due process. Given the new appointments to the court, some lawyers had wondered where that jurisprudence was headed. It seems quite entrenched.
Chicago: How long until Kennedy decides that the norms have evolved to abolish the death penalty? Will it be when one or two states abolish? When five? Just before he retires?
Tom Goldstein: The question expresses a good deal of frustration, but the answer is, never. Justice Kennedy -- like every member of the court but Justice Stevens -- believes that the death penalty is Constitutional in some circumstances.
Washington: An earlier poster asked this question: "Oh, one other question -- aren't the four dissenters also all anti-abortion and pro-life?" I think this question is an unfortunate result of the media portrayals of the Justices. Nino Scalia has noted several times that he would overturn Roe v. Wade because there is nothing in the U.S. Constitution that provides a right to an abortion (or a right of privacy), but that if a state wanted to allow or ban the procedure, that he takes no opinion on that issue because it is a matter for the state legislatures to decide.
Makes me think of his discussion in an indecency case about whether 60,000 consenting adults could choose to fill the Hoosier dome in Indianapolis for purposes of showing each other their genitals. I think his position on this case is surely the same, and I think it's unfortunate that in today's era of sound-bite reporting, people aren't willing to take the time to understand these distinctions.
Tom Goldstein: I think this is a fair point and just will repeat what I said in response to the earlier poster: "The four dissenters are certainly more conservative than the majority, and tend to believe that there is limited or no Constitutional protection for a right to an abortion. This isn't an abortion case, of course, but the similarity is that those justices do believe that these are legislative choices, not Constitutional ones." The emphasis in my answer is "no Constitutional protection," and has nothing to do with the justices' personal views.
Indianapolis: Tom, what's happened to the court's claim in Atkins that "it is not so much the number of these States that is significant, but the consistency of the direction of change"? That is the first man overboard in the Kennedy case; as the court admits, since Louisiana introduced this statute, five states have followed its lead, slip op. at 12, and three more actively are considering doing so, slip op. at 20; Brief for Respondents 38.
The number of jurisdictions that have gone the other way is zero; the most the court can do is a febrile exhortation that the remaining 44 states have not made changes either way. Does this mean that the court is back to counting heads, or is the head-counting and direction-measuring just window dressing for (as the court admits in both cases) the exercise of its own judgment?
Tom Goldstein: The math here is almost impossible: It would be hard for there to be any states headed in the opposite direction -- i.e. of abolishing this punishment. But in general, I do think any interest in counting is over for a big swath of cases -- the court has forbidden the death penalty for nonhomicidal crimes against individuals.
Hoboken, N.J.: Why the distinction between crimes against individuals and crimes against the state? Is the court suggesting that evolving standards of decency might allow for the execution of traitors?
Tom Goldstein: I think so, though not under the "evolving standards" inquiry -- just as a matter of long tradition.
Anonymous: Are these court opinions timed to the offshore drilling debate?
Tom Goldstein: Nope -- the court issues its decisions as soon as they are ready, and it agreed to hear the case well before this debate's newest eruption.
Arlington, Va.: You've mentioned several times that the court essentially is making common law in the Exxon case. How does it get around the Erie Doctrine?
Tom Goldstein: The question relates to a doctrine (Erie) about how federal courts should apply state substantive law. This is a maritime case, which is federal law (whether by statute or by judge-made common law).
Washington: There has been some media coverage of the Court this term and the lower level of divisibility among the justices than in the previous term. Some articles discussed the upcoming election as one factor; others the nature of the term's cases themselves. In light of today's divided decision, do you find the lower level of divisibility significant? Do you have any alternative theories on why this might be occurring?
Tom Goldstein: The number of 5-4 cases is definitely down. Last term it was around a third of the cases; so far this Term it is 18 percent. I expect it has to do with a lot of factors, including the particular mix of cases the justices have. I think one factor is that Chief Justice Roberts' stated desire of having narrower opinions that can attract broader majorities has taken hold in some contexts.
Tom Goldstein: I wanted to note that I'm not posting a variety of comments that address the absolutely heinous nature of the crime of child rape and a smaller number defending the decision. They don't pose questions. But I did want to acknowledge them.
Washington: You mention Justice Roberts wanting to decide cases on narrow grounds, but isn't this going to harm judicial economy, as using the narrowest point to find agreement on isn't going to provide much of a standard for future litigation? That just leads things to be relitigated over and over again, no?
Tom Goldstein: That, concisely put, is the opposite side of the argument -- and was a big criticism of Justice O'Connor's jurisprudence, i.e. that you always would have to come back to the Supreme Court.
London: While the single ratio of one-to-one for punitive damages compared to compensatory damages makes thing easier for administration of these cases, it really is bad for specific cases like one case described by Judge Posner. Punitive damages are for deterrence purposes and if the monetary damages are insufficient to deter corporations, what's the point? I might not have agreed with Justice Scalia or Thomas's view, but I think it's better than this judge-made rule. If I were a big corporation planning to do something bad, surely I now can account for the damages and decide if it's worthwhile financially to do it.
Tom Goldstein: To be clear, the majority carves out cases in which the company is more than reckless -- i.e. in which it intentionally or wantonly does something wrong. The punitives can be higher there. But there obviously will be questions about whether you can prove that kind of misconduct.
Brooklyn, N.Y.: Not that I necessarily agree with the Court's one-to-one ratio for punitive damages, but was there any discussion as to the fact that most other nations place far more severe caps on punitive damage awards, if indeed they allow them at all? I'm fairly certain this wasn't directly the intent of the Justices here, but it's interesting to note that today's decision would appear to move us closer to the rest of the world in this regard. Is it possible that this was somehow an unacknowledged factor?
Tom Goldstein: Definitely. The court is very aware that other countries limit punitives significantly. It has had that issue briefed to it many times.
Tom Goldstein: Okay, everyone -- that looks like all the comments. Thanks for visiting the chat. Again, we'll have live coverage of the decisions tomorrow at 10 a.m. ET at scotusblog.com.
Editor's Note: washingtonpost.com moderators retain editorial control over Discussions and choose the most relevant questions for guests and hosts; guests and hosts can decline to answer questions. washingtonpost.com is not responsible for any content posted by third parties.