George Will

 WASHINGTON--Because the Democratic Party has leased itself in perpetuity to the trial lawyers, significant tort reform by legislatures seems unobtainable. There is Supreme Court propensity to legislate when it thinks legislatures should but won't. However, that propensity is injurious to constitutional law and democratic practices, even when the resulting court-made social policy would be desirable if established by legislation.

     Recently the court ruled 6-3 that a Utah jury behaved unconstitutionally when, expressing disgust at the behavior of State Farm Insurance Company, it awarded a couple $145 million in punitive damages, in addition to $2.6 million (later reduced to $1 million) in compensatory damages, because of the way the company handled their automobile accident claim. The court said the guarantee of due process of law is violated when punishments are ``arbitrary" or ``grossly excessive" to the injury.

     But what, other than the justices' instincts, provides criteria of proportionality and arbitrariness? The justices supposedly are construing the Constitution, not their instincts. And what principle makes the justices' instincts superior to the jury's regarding State Farm's documented practices? Furthermore, even if the jury's award was unjust, the idea that ``unjust'' and ``unconstitutional'' can be synonymous gives it a license to legislate.

     Justice Kennedy, joined by Rehnquist, Stevens, O'Connor, Souter and Breyer, said that $1 million was ``substantial" compensation for the couple and punishment for State Farm. And the six justices decreed to the 50 states that ``few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process."

     Where in the name of James Madison did that come from? From the justices' viscera, not Madison's Constitution. Their viscera will be consulted in future cases to clarify those ``few" awards that may deviate from the justices' rule to a degree that is ``significant."

George Will

George F. Will is a 1976 Pulitzer Prize winner whose columns are syndicated in more than 400 magazines and newspapers worldwide.
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