ARGUABLY THE dopiest question asked of John G. Roberts Jr. during his confirmation hearing was whether he would side with the “little guy” or the “big guy” in his judicial rulings.
Roberts was his usual unflappable self in addressing the question: “If the Constitution says the little guy should win, the little guy’s going to win in court before me. But if the Constitution says that the big guy should win, well, then the big guy’s going to win, because my obligation is to the Constitution.”
Roberts’ impressive qualifications and moderate temperament make today’s scheduled confirmation vote in the Senate a foregone conclusion, and next week the Roberts court will begin taking shape. But an important early test of its character is how it deals with some of society’s most unpopular defendants facing the full force of government power -- those terror detainees in Guantanamo, death row inmates in Texas seeking federal review of their shoddy state prosecutions and unpopular corporations caught up in politically expedient lynchings, such as the accounting firm Arthur Andersen several years ago and Philip Morris today.
The fact that corporate defendants are often in this category belies the simple-minded dichotomy behind the little guy/big guy question. In the immediate aftermath of the Enron accounting scandal, no criminal defendant was more of a classic helpless “little guy,” caught in the government’s sights, than Arthur Andersen, which was killed off by a criminal prosecution. Last term, the Supreme Court voted unanimously to reverse the firm’s conviction -- for shredding documents related to the collapse of Enron -- holding that jurors had only found criminal intent by retroactively applying laws passed after the scandal. Of course, no legal vindication could bring back the accounting firm’s 28,000 lost jobs.
One of the Supreme Court’s highest duties is to block government’s attempts to take shortcuts against unpopular parties when it feels it can get away with it. No politician in the post-Enron environment was going to raise questions about the Bush administration’s decision to indict Arthur Andersen, but it was heartening to see both liberal and conservative justices heap scorn on the government’s case when it was argued before them last April.
Today, it is Big Tobacco that is the proverbial canary in the coal mine, the ultimate test of the judicial system’s ability to ensure that highly unpopular parties receive due process and a fair trial. The most egregious anti-tobacco federal case is a 6-year-old national embarrassment, a sprawling political vendetta in search of a legal theory. President Clinton announced the filing of this lawsuit in his 1999 State of the Union address. It was an attempt to seek reimbursement for federal healthcare costs relating to smoking. All counts in the case were thrown out in 2000 except for racketeering claims alleging that cigarette companies engaged in a decades-long criminal enterprise.
There is no verdict yet in the civil trial -- under the anti-racketeering RICO law -- held earlier this year. But in February, the U.S. Court of Appeals for the District of Columbia Circuit rightly held that the remedy sought by the government -- $280 billion of the industry’s profits over the decades it engaged in this supposed “racket” -- was not appropriate in a civil RICO case. The court pointed out that although criminal RICO provisions explicitly contemplate a “disgorgement” of all illegally gotten gains, civil RICO provisions do not.
There is no political upside for the Bush administration to back down in this Dickensian war against Big Tobacco, so it has appealed the decision, even as the Justice Department was forced to face reality in response to the appellate court’s decision and drastically reduce its proposed remedies at the end of the trial in June. That move triggered outrage in the media, mostly the usual hue and cry about a GOP administration caving to big business.
Meanwhile, at a judicial conference last weekend at the College of William and Mary in Virginia, even Walter Dellinger, an acting solicitor general in the Clinton administration, conceded that Philip Morris and its co-defendants are right on this point -- that it is absurd for the government to try to seek criminal sanctions in a case without having to go through the trouble of bringing a criminal case. The real outrage should be aimed at the administration’s cowardice in not dropping this senseless case altogether. The idea that one of the most heavily regulated and taxed industries in recent decades can suddenly be considered a mob-like criminal enterprise is wacky, to say the least.
On the pending appeal of the remedy issue -- whether the government can seek record damages under a civil law that doesn’t enable it to do so -- Philip Morris and its co-defendants are hoping the Supreme Court will take a pass, allow the appeals court ruling to stand and let the trial court reach a verdict. But maybe it would be best if the Roberts court took the appeal, to once again slap the government’s wrist for overreaching in the prosecution of a universally reviled defendant.