Bench Memos

NRO’s home for judicial news and analysis.

Activism and Adam Cohen


I concur with Jonathan Adler and Robert Alt about the sheer boneheadedness, and transparent ideological aim, of the NYT’s Adam Cohen in his piece today.  But such confusion in the service of ideology is nothing new for Cohen (see here and here, and here, and here, and here).  What’s interesting is how often he manages, whether by choice or incompetence it is not clear, to mislead his readers about particular cases.  Take this example from his latest piece today:

With few exceptions, the court’s activism was in service of a conservative ideology. The justices invoked the due process clause in a novel way to overturn a jury’s award of $79.5 million in punitive damages against Philip Morris, which for decades misrepresented the harm of smoking. It is hard to imagine that Chief Justice Roberts and Justice Alito, who were in the majority, would have supported this sort of “judge-made law” as readily if the beneficiary were not a corporation.

The case he mentions, Philip Morris v. Williams, did indeed include Roberts and Alito in the majority.  The remainder of the majority, however, consisted of Justices Kennedy, Souter, and Breyer, with Breyer writing for the majority.  In dissent were the justices most widely viewed as the most conservative on the Court, Scalia and Thomas, as well as Justices Ginsburg, whose dissent they joined, and Stevens (who wrote separately for himself, as did Thomas in addition to joining Ginsburg).  On this case, I would have been with the dissenters, and I would characterize the reading of the due process clause that caps punitive damages as “activist.”  But even if I were on the other side, when Scalia and Thomas are among the critics of the ruling, and the opinion of the Court is written by Justice Breyer, it’s awfully hard to say with a straight face that the decision was “in service of a conservative ideology.”


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