The Los Angeles Times ran an interesting editorial yesterday on the recent oral argument in Williams III. The editorial discussed the tortured procedural history of this case and commented that the Oregon Supreme Court’s recent opinion was problematic: “When the defendant is a much-reviled tobacco company, such an end run might not seem so outrageous. But suppose lower courts in the 1950’s had succeeded in frustrating the implementation of the Supreme Court’s Brown vs. Board of Education decision outlawing segregated public schools? The court forestalled such subversion of its mandate in a 1958 decision emphasizing that ‘the federal judiciary is supreme in the exposition of the law of the Constitution.’”

The editorial went on to make an even broader point that many state courts are not following the Supreme Court’s guidance on limiting the size of punitive damage awards: “The primary issue in this third round of litigation is whether Oregon’s highest court circumvented last year’s U.S. Supreme Court ruling. But that obscures another important element in this case: the continuing refusal of state courts to take seriously a series of U.S. Supreme Court decisions warning that punitive damage awards may not be ‘grossly excessive.’ That line of cases began in 1996 with a decision striking down a $4-million award to a physician who sued BMW for not disclosing that a ‘new’ car he had purchased had been repainted. His actual damages were only $4,000. Unfortunately, the Supreme Court hasn’t established a clear rule to determine when punitive damages become disproportionate to compensatory damages. At Wednesday’s argument, Chief Justice John G. Roberts Jr. suggested that using the Oregon case to make a clear statement about the limits of punitive damages might be the best way to reassert the court’s authority. We agree.”

Now that I’ve had a chance to read the oral argument transcript from Philip Morris v. Williams (Williams III), I’m going to offer a few predictions guesses about how the Justices might vote. I don’t purport to have any inside knowledge of the Supreme Court or this particular case, and I didn’t attend the argument. My guesses are based purely on my review of the transcript and some of the briefing, and my familiarity with the Supreme Court’s previous decisions in this area.

Although the $79.5 million punitive damages award is the engine that’s propelling this litigation, the case is not really a punitive damages case at this point. It’s an appellate procedure case. And the issue presented is peculiar to the U.S. Supreme Court. In that sense, this post is somewhat off-topic for this blog. Nevertheless, for whatever its worth, I humbly offer my guesses about how the justices might vote on this case:

Justices Ginsburg and Stevens: It seems pretty clear from the transcript that these two are not particularly troubled by the Oregon Supreme Court’s decision on remand. I don’t think I’m going out on a limb by guessing they’ll vote to affirm. I envision them ruling that a state court is free to rely on an independent state law ground for avoiding the constitutional issue in this case, so long as there is no indication that the court came to the independent state law determination in bad faith.

Justice Breyer: He said he initially viewed the Oregon Supreme Court’s decision as a “run around,” but now he isn’t so sure. He seems to have come around to the view that the decision was a legitimate application of established Oregon precedent, even though he did not find that precedent quite as clear-cut as Williams’ briefs described it. My guess is that Justice Breyer will join Justices Ginsburg and Stevens in voting to affirm on the ground that the Oregon Supreme Court did not act in bad faith by relying on state law to avoid the constitutional issue.

Justice Souter: He seems to be deeply troubled by two countervailing policy concerns arising from the possible outcomes of this case: an affirmance could signal to lower courts that they are free to ignore the Supreme Court’s mandates, but a reversal could improperly interfere with state courts’ discretion by requiring them to consider all state law issues before addressing federal constitutional questions. Justice Souter is also troubled by the unfairness that would result if a party like Williams is barred from asserting a state law argument on remand, even though she asserted that argument throughout the lower court proceedings and had no control over the Oregon Supreme Court’s decision to avoid that issue the first time around. Ultimately, I’m guessing that this fairness concern will cause Justice Souter to vote in favor of affirmance.

Chief Justice Roberts and Justices Scalia and Kennedy: These three seem prepared to reverse the Oregon Supreme Court’s opinion on the ground that it violated the mandate of Williams II. Justice Kennedy made it clear that he does not share Justice Souter’s concern about interfering with the lower courts’ discretion to decide issues in a certain order. Justice Scalia’s viewpoint is particularly interesting, given that he dissented from Williams II. Presumably, he believes that although Williams II was wrongly decided, the Oregon Supreme Court was bound to follow it.

Justices Alito and Thomas: These two are wildcards, since they asked no questions at argument. Based on typical voting patterns, I’m tempted to predict that they will vote with the Chief and with Justices Scalia and Kennedy. Justice Thomas, however, has a limited view of the stare decisis doctrine. Based on that view, and the fact that he dissented in Williams II, it is conceivable that he might vote for affirmance. But my instincts say he won’t.

So the bottom line is, I’m guessing the court will vote 5-4 to reverse the Oregon Supreme Court’s opinion and remand the case with instructions to conduct a new trial with a proper jury instruction along the lines set forth in Williams II.

Many news reports about the argument have focused on Chief Justice Roberts’ suggestion that the court could avoid the procedural quagmire by deciding on the merits whether the amount of the award violates due process. While an opinion on that issue would be a lot more interesting for purposes of this blog, I think it’s more likely that the Court will limit its opinion to the issue presented. They had two previous chances to decide the merits of the excessiveness issue in this case and they avoided the issue both times. (My co-blogger Jeremy Rosen disagrees with me on this point, and predicts that the Supreme Court will grant cert. on the excessiveness issue.)

ABC News: Third and Long for Philip Morris?

SCOTUSblog: New Briefing on Tobacco Case? Maybe

Associated Press: Smoker’s Widow Seeks $79.5 Million Award at Supreme Court

Christian Science Monitor: U.S. Supreme Court Takes Up Tobacco Case for Third Time

McClatchy: Justices’ Irritation With Lower Court Could Save Tobacco Giant Millions

New York Times: Justices Look Anew at Case in Which Oregon Court has Twice Rebuffed Them

WSJ Law Blog: In Big Punitives Case, Has court Painted Itself Into a Corner?

Business Insurance: High Court to Rule Again In Oregon Punitives Case

We’ll post some of our own thoughts about the argument after we’ve had time to digest the transcript.

Click here to view the transcript from this morning’s oral argument in Philip Morris v. Williams (Williams III).

Click here to read SCOTUSblog’s preview of the Williams III oral argument. We will post a link to the transcript of the oral argument as soon as we can.

The Supreme Court is set to hear oral arguments in the latest incarnation of Philip Morris v. Williams (Williams III) next week, on December 3. Cornell University Law School’s Legal Information Institute previews the oral argument, summarizing both side’s contentions. (See this post for links to all the briefs.)

Note: the LII lists two issues presented for review, but the Supreme Court has expressly limited its grant of certiorari to the first issue.