Yesterday the Supreme Court declined to hear an appeal of the case of SM Brands v. Caldwell, a suit the Competitive Enterprise Institute brought challenging the decade-old $240 billion tobacco settlement reached by 46 states. The suit had been dismissed by lower federal courts last year. The case was straightforward: the tobacco agreement arranged by the states violates a clear passage in Article 1, Section 10 of the Constitution: “No State shall, without the Consent of Congress … enter into any Agreement or Compact with another State.” Congress never approved the state tobacco compact. This looks pretty black and white: “without the consent of Congress” isn’t one of those “ink blot” passages of the Constitution that requires advanced literary critical techniques to (mis-)interpret.
Why would the Court decline to hear such a case? I’ll leave the precise legal merits to the specialists in the NRO stable, but I wonder if this mightn’t be a case of the Supreme Court following the election returns, or even the turmoil in the financial markets. If the Court had struck down the state tobacco compact, it would throw into doubt — and maybe into default — the revenue bonds many states have sold against future tobacco-settlement revenues. Just what the states already on the brink of fiscal Armageddon need right now. The big tobacco companies wouldn’t like it much either, as it would reopen the door to a new round of litigation that the state settlement had taken off the table.
I can imagine justices thinking that it cannot be assumed that Congress would somehow rush into the breach and retroactively approve the multi-state tobacco compact. The Republican House might well balk for various reasons, while Senate Democrats might not be able to resist grabbing a larger piece of the action for the federal government. This is not how justices ought to think about cases and controversies brought before them. It seems to me the Constitution, and the rule of law, have suffered another blow.
Coincidentally, the Supreme Court’s decision not to hear the appeal came on the very day the National Association of Attorneys General were meeting in Washington, no doubt plotting their next act of collusion to loot a deep-pocketed industry.