An unusual split at SCOTUS

The Supreme Court today decided the case of Philip Morris v. Estate of Williams, throwing out an $79.5 million dollar punitive damage award on the theory that awarding punitive damages as a way to punish a defendant for harms caused to other people not involved in the case is taking under the due process clause. However, and here is where my brain starts to hurt, the jury can consider harm to non-parties in determining the reprehensibility of the tortious conduct.

So they can't award punitives because other people were in harm's way, but because other people were in harm's way they can award punitives? What the hell? Justice Stevens picks up on this tortured distinction in his dissent:

While apparently recognizing the novelty of its holding, the majority relies on a distinction between taking third-party harm into account in order to assess the reprehensibility of the defendant’s conduct—which is permitted—from doing so in order to punish the defendant “directly”—which is forbidden. This nuance eludes me. When a jury increases a punitive damages award because injuries to third parties enhanced the reprehensibility of the defendant’s conduct, the jury is by definition punishing the defendant— directly—for third party harm. A murderer who kills his victim by throwing a bomb that injures dozens of bystanders should be punished more severely than one who harms no one other than his intended victim. Citations omitted.

Also interesting is the way the Court split- Justice Breyer wrote the opinion of the Court, joined by the Chief Justice, and Justices Kennedy, Souter, and Alito. In dissent were Justices Stevens, Scalia, Thomas, and Ginsburg. Not the usual alignment to say the least.