One of the ironic things about this discussion is that it takes an activist Court to even involve itself in this issue - one of state law [perhaps not, trying to figure that out now.] A judicial minimalist or an advocate of judicial restraint might object to the Supreme Court's injection of itself into the issue, especially as it is grounded on what appear to be substantive due process grounds. And to his credit (and to the credit of Justice Thomas), Justice Scalia has repeatedly raised that exact objection in the punitive damages cases. In the 1993 case of TXO v. Alliance Resources, Justice Scalia wrote in dissent:
The jury in this case was instructed on the purposes of punitive damages under West Virginia law, and its award was reviewed for reasonableness by the trial court and the West Virginia Supreme Court of Appeals. Traditional American practice governing the imposition of punitive damages requires no more. See Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 15 (1991); id., at 26-27 (SCALIA, J., concurring in judgment). It follows, in my view, that petitioner's claims under the Due Process Clause of the Fourteenth Amendment must fail. See id., at 31. I therefore have no difficulty joining the Court's judgment.
I do not, however, join the plurality opinion, since it makes explicit what was implicit in Haslip: the existence of a so-called "substantive due process" right that punitive damages be reasonable, see ante, at 458. * I am willing to accept the proposition that the Due Process Clause of the Fourteenth Amendment, despite its textual limitation to procedure, incorporates certain substantive guarantees specified in the Bill of Rights; but I do not accept the proposition that it is [the secret repository of all sorts of other, unenumerated, substantive rights] - however fashionable that proposition may have been (even as to economic rights of the sort involved here) at the time of the Lochner-era cases the plurality [509 U.S. 443, 471] relies upon, see ante, at 453-454. It is particularly difficult to imagine that "due process" contains the substantive right not to be subjected to excessive punitive damages, since if it contains that, it would surely also contain the substantive right not to be subjected to excessive fines, which would make the Excessive Fines Clause of the Eighth Amendment superfluous in light of the Due Process Clause of the Fifth Amendment.
To say (as I do) that "procedural due process" requires judicial review of punitive damages awards for reasonableness is not to say that there is a federal constitutional right to a substantively correct "reasonableness" determination - which is, in my view, what the plurality tries to assure today. Procedural due process also requires, I am certain, judicial review of the sufficiency of the evidence to sustain a civil jury verdict, and judicial review of the reasonableness of jury-awarded compensatory damages (including damages for pain and suffering); but no one would claim (or at least no one has yet claimed) that a substantively correct determination of sufficiency of evidence and reasonableness of compensatory damages is a federal constitutional right. So too, I think, with punitive damages: Judicial assessment of their reasonableness is a federal right, but a correct assessment of their reasonableness is not.
I have an expansive view of the Due Process Clause so I do not agree with Justice Scalia. But what of Chief Justice Roberts? We await his opinion on this of course. Perhaps he has learned to have n expansive view of the Due Process Clause, and not just for "poor" corporations like Exxon.
