"We’re going to be in a kind of bog of mixtures of constitutional law, unclear Oregon state law... et cetera."

Justice Breyer fretted yesterday in the course of the oral argument in a case about the constitutional restrictions on punitive damages. The Oregon Supreme Court accepted $79.5 million awarded to one person, the widow of a man who smoked a lot of Marlboros and died of lung cancer. Her compensatory damages were only $871,000. Philip Morris argued that the court has essentially allowed one plaintiff's case to become “a one-way class action in which Philip Morris was exposed to global punishment by the jury without any of the protections of a class action.” But is that what the Oregon court did?

Finding the Oregon Supreme Court’s opinion insufficiently clear on this basic point, the justices would be unable to use the case as a vehicle for taking their consideration of punitive damages to the next level.

"What’s worrying me... is that we’re going to be in a kind of bog of mixtures of constitutional law, unclear Oregon state law, not certain exactly what was meant by whom in the context of the trial, et cetera."

And Justice David H. Souter, referring to the Oregon Supreme Court, asked Mr. Peck: “Isn’t perhaps the better course to send this back to them and say, ‘We don’t know what you mean?’ And let them tell us clearly.”...

“You don’t think that would confuse the jury if they are first told that they may consider the extent of harm suffered by others, and then the next instruction seems to say they can’t?” Justice Ginsburg asked Mr. Frey.

“The concept may be abstract,” Mr. Frey replied, insisting that there was a “difference between considering and punishing” that a proper jury instruction would have made “quite clear to the jury.”

So, it seems, this case could fizzle. But it has the potential to quite significant.

The United States Supreme Court has been deeply split on the punitive damages question, with three justices, Antonin Scalia, Clarence Thomas and Ruth Bader Ginsburg, rejecting the idea that the Constitution’s guarantee of due process places a limit on what states can permit juries to award.

With the departure of William H. Rehnquist, the former chief justice, and Justice Sandra Day O’Connor, both of whom supported due process limits on punitive damages, the known margin of support for the court’s precedents fell to 4 to 3, with the views of Chief Justice John G. Roberts Jr. and Justice Samuel A. Alito Jr. unknown.

ADDED: Dahlia Lithwick looks at the argument. Nugget:

Robert Peck represents Mayola Williams, and he achieves the distinction of eliciting the following admission from Chief Justice John Roberts: "I thought our cases clearly establish that you can consider the harm to others in assessing the reprehensible nature of the conduct." Roberts adds that the case law also prohibits punishment of the defendant for harms to others. In other words, he seems to be saying, the proposed instruction is confused because our precedent is confused. In which case, why not send it back for the Oregon Supreme Court to fix?

It's the Roberts Court's New Minimalism: We screw up the law, then ship it out to the lower courts to correct it.

Well, why not get the law straight now that you've gone to all the trouble to hear the case?