A nine-month trial of the government's civil lawsuit ended in June in federal district court here. Judge Gladys Kessler is expected to rule in the coming months on the tobacco companies' liability and, if she finds them liable, on the remedy to which the government is entitled.
It was the remedy question that was before the Supreme Court on Monday. The government filed its lawsuit in 1999 seeking to recoup what it considered to be the tobacco industry's ill-gotten gains, estimated at $280 billion.
But in February of this year, a panel of the federal appeals court here ruled that the Racketeer Influenced and Corrupt Organizations Act, the law known as Rico that is the basis for the lawsuit, does not permit the "backward-looking remedy" of disgorging illegally obtained proceeds. Rather, the appeals court said, Congress had intended only "forward-looking orders" that would prevent continuing or future violations of the law.
In its Supreme Court appeal, the solicitor general's office said the appeals court had "incorrectly decided an issue of surpassing importance in an exceptionally important case."
As is their custom, the justices gave no indication of why they rejected the appeal, United States v. Philip Morris USA Inc., No. 05-92. But the tobacco industry had argued that it would be a waste of judicial resources to decide the remedy issue in advance of an actual verdict on liability.
The government can bring the issue back to the Supreme Court on appeal after a final judgment in the case. And because the case is civil rather than criminal, the government can appeal on liability as well if Judge Kessler rules in favor of the industry.
In its Supreme Court brief, the tobacco industry was dismissive of what it called a "dressed-up product liability dispute." Seeking to minimize the importance of the issue, the industry said that the government had sought this type of remedy only a few times in the 35 years since the Rico statute became law.
The government's legal theory is that the tobacco industry has used mail fraud and wire fraud to perpetrate a deception lasting decades about the nature of its products. The solicitor general's office told the Supreme Court that the usual caution against deciding an appeal before a case had concluded should not apply in this instance. Immediate review was important, the government's brief said, because as the case goes forward without it, Judge Kessler will be required "to fashion a remedy based on fundamentally mistaken principles of law."
These were among the other developments at the court on Monday:
Prison Abortion Rights
The full court vacated an order that Justice Clarence Thomas had issued late Friday that had prevented a Missouri prison inmate from obtaining an abortion, to which a federal district judge had found she had a constitutional right.
The inmate, identified in court papers only as Jane Roe, was pregnant when she was sent to a women's prison in Vandalia, Mo., on a parole violation and had been trying for seven weeks to obtain an abortion. She is now 17 weeks pregnant. She plans to pay for the procedure herself but, as an inmate, needs the prison to arrange transportation to a Planned Parenthood clinic in St. Louis, 80 miles away.
Under a policy it adopted last year, the Missouri Department of Corrections will not transport inmates for abortions that it deems not medically necessary. Last Thursday, after the American Civil Liberties Union filed a lawsuit on the inmate's behalf, Judge H. Dean Whipple of Federal District Court in Kansas City ordered the state to provide access to the abortion. The inmate would otherwise "suffer irreparable harm," he said.
The state then appealed to the United States Court of Appeals for the Eighth Circuit, in St. Louis, which refused to grant a stay of Judge Whipple's order. The state next turned to Justice Thomas, who has administrative jurisdiction over the Eighth Circuit.
In the appeal, Crawford v. Roe, No. 05A333, Attorney General Jay Nixon acknowledged that a state could not impose an "undue burden" on the right to abortion. But in this case, he said, "it is not the prison that has imposed the burden, but the prisoner's violation of the law that resulted in her incarceration that has imposed the burden." The inmate was jailed for a parole violation.
Justice Thomas gave no reason for granting the stay on Friday night, and the full court, to which he then referred the case, gave no reason for vacating the stay. Neither he nor any other member of the court indicated a dissent from the order the court issued on Monday.
Retardation Finding
In a brief unsigned opinion, the court said there was no constitutional right to a jury trial to determine whether a murder defendant was retarded and therefore ineligible for the death penalty.
The decision, Schriro v. Smith, No. 04-1475, vacated a ruling by the United States Court of Appeals for the Ninth Circuit, in San Francisco. That court, granting an Arizona death row inmate's petition for a writ of habeas corpus, had ordered Arizona to conduct a jury trial on the inmate's claim of mental retardation. The state appealed to the Supreme Court, saying that Arizona law, as interpreted by the state's high court, provides for such a finding to be made by the trial judge.
Three years ago, in Atkins v. Virginia, the Supreme Court ruled that the Constitution bars the execution of the mentally retarded. In its opinion today, the court said that "Atkins stated in clear terms that we leave to the states the task of developing appropriate ways to enforce the constitutional restriction upon their execution of sentences." However, the opinion continued, "Arizona had not even had a chance to apply its chosen procedures when the Ninth Circuit preemptively imposed its jury trial condition."