The following opinions were released by the U.S. Supreme Court on June 25, 2008:

• Exxon Shipping Co. v. Baker (Opinion of the Court by Souter, J., joined by Roberts, C.J., Scalia, Kennedy, Thomas, JJ., and by Stevens, Ginsburg, Breyer, JJ., as to Parts I, II, and III; concurring opinion by Scalia, J., joined by Thomas, J.; opinion concurring in part and dissenting in part by Stevens, J.; opinion concurring in part and dissenting in part by Ginsburg, J.; opinion concurring in part and dissenting in part by Breyer, J.; Alito, J., took no part in the opinion). This suit arose from the grounding of the Exxon Valdez in 1989, and a subsequent jury verdict awarding $5 billion in punitive damages against Exxon (which amount was subsequently reduced by the Ninth Circuit Court of Appeals to $2.5 billion). As to the issue of whether maritime common law allows for corporate liability for punitive damages on the basis of the acts of managerial agents, the Court was evenly divided, leaving standing the Ninth Circuit’s determination that such liability existed; the Court expressed that this result was without precedential value. The Court then held that nothing in the Clean Water Act preempts either compensatory or punitive damages for consequences of water pollution damage. The Court then found that Exxon’s arguments as to the amount of the remaining punitive damages award “goes to our understanding of the place of punishment in modern civil law and reasonable standards of process in administering punitive law.” Slip op. at 16. The Court then engaged in an historical and comparative analysis of punitive damage awards, particularly with regard to the ration of punitive damage amount to compensatory damage amount, and found, “The real problem, it seems, is the stark unpredictability of punitive awards. Courts of law are concerned with fairness as consistency, and evidence that the median ratio of punitive to compensatory awards falls within a reasonable zone, or that punitive awards are infrequent, fails to tell us whether the spread between high and low individual awards is acceptable. The available data suggest it is not.” Slip op. at 26. The Court held that the best control for unpredictable outlier awards was not a verbal instruction or a maximum dollar-value cap, but a maximum ratio or multiplier; the Court then held that “a median ratio of punitive to compensatory damages of about 0.65:126 probably marks the line near which cases like this one largely should be grouped. Accordingly, given the need to protect against the possibility (and the disruptive cost to the legal system) of awards that are unpredictable and unnecessary, either for deterrence or for measured retribution, we consider that a 1:1 ratio, which is above the median award, is a fair upper limit in such maritime cases.” Slip op. at 40. The Court expressly clarified that its review of the punitive damages award was pursuant to its power to adjudicate issues of maritime common law, and was not a result of constitutional due process analysis and was not a pronouncement as to constitutional limits on punitive damages awards. Slip op. at 28. Justice Scalia filed a separate concurring opinion to reiterate his disagreement with the Court’s prior precedents regarding constitutional limitations on punitive damage awards. Justices Stevens and Ginsburg each concurred in part and dissented in part to express the belief that it should be for Congress rather than the courts to set the type of limitations expressed in the majority’s 1:1 ratio, and that they would not reverse the Ninth Circuit but would apply an abuse-of-discretion standard to affirm the punitive damage award. Justice Breyer concurred in part and dissented in part to express his belief that a narrow exception to the majority’s 1:1 ratio was necessary in this case.
• Kennedy v. Louisiana (Opinion of the Court by Kennedy, J., joined by Stevens, Souter, Ginsburg, Breyer, JJ.; dissenting opinion by Alito, J., joined by Roberts, C.J., Scalia, Thomas, JJ.). Holding unconstitutional under the Eighth and Fourteenth Amendments the Louisiana statute imposing the death penalty for the rape of a child where the crime does not result in the victim’s death. The Court upheld two driving principles of death penalty analysis: (1) that “[e]volving standards of decency must embrace and express respect for the dignity of the person, and the punishment of criminals must conform to that rule”; and (2) that “punishment is justified under one or more of three principal rationales: rehabilitation, deterrence, and retribution.” Slip op. at 9. Regarding objective indicia of evolving standards of decency, the Court found, “Though our review of national consensus is not confined to tallying the number of States with applicable death penalty legislation, it is of significance that, in 45 jurisdictions, petitioner could not be executed for child rape of any kind.” Slip op. at 15. The Court then found that there was not sufficient evidence that, in spite of the small number of states allowing the death penalty for child rape, that there was a “showing of consistent change” in the direction of allowing the imposition of that penalty. Slip op. at 20. The Court noted, “We cannot dismiss the years of long anguish that must be endured by the victim of child rape. It does not follow, though, that capital punishment is a proportionate penalty for the crime.” Slip op. at 24. The Court clarified that its opinion did not address “crimes defining and punishing treason, espionage, terrorism, and drug kingpin activity, which are offenses against the State.” Slip op. at 26. The Court then held that the death penalty for child rape did not promote the policy purposes of deterrence or retribution. In dissent, Justice Alito opined that he disagreed that there was an identifiable national consensus against imposition of the death penalty for child rape, and that he disagreed with the majority’s finding that the death penalty for child rape was contrary to evolving standards of decency.
• Giles v. California (Opinion of the Court, except as to Part II.D.2, by Scalia, J., joined in full by Roberts, C.J., Thomas, Alito, JJ., and joined except as to Part II.D.2 by Souter, Ginsburg, JJ.; concurring opinion by Thomas, J.; concurring opinion by Alito, J.; opinion concurring in part by Souter, J., joined by Ginsburg, J.; dissenting opinion by Breyer, J., joined by Stevens, Kennedy, JJ.). The defendant was on trial for murder, and had asserted a defense of self-defense; the prosecution introduced over defendant’s objection the statements by the murder victim three weeks prior to the shooting made to officers responding to a domestic violence call. The California Court of Appeal held that the use of the out-of-court statements was allowed because the victim’s absence - and, hence, the defendant’s inability to exercise his Sixth Amendment Confrontation Clause rights - was procured by the defendant’s own wrongful act of subsequently shooting the victim. Vacating and remanding for further proceedings, the Supreme Court found that the historical exception to the right of confrontation for procuring the absence of the declarant was rooted in actions that were contrived with the purpose of preventing the presence of the declarant to testify, rather than those where an incidental effect of the accused’s actions was the inability of the declarant to testify: “The manner in which the rule was applied makes plain that unconfronted testimony would not be admitted without a showing that the defendant intended to prevent a witness from testifying.” Slip op. at 7. In the section of Justice Scalia’s opinion that is only a plurality, he takes issue with the dissent’s position that “[t]he ‘basic purposes and objectives’ of forfeiture doctrine … require that a defendant who wrongfully caused the absence of a witness be deprived of his confrontation rights, whether or not there was any such rule applicable at common law.” Slip op. at 20. Justice Scalia writes that “a legislature may not ‘punish’ a defendant for his evil acts by stripping him of the right to have his guilt in a criminal proceeding determined by a jury, and on the basis of evidence the Constitution deems reliable and admissible.” Slip op. at 21. Justices Thomas and Alito concurred, but wrote separately to emphasize their doubt that the statements at issue actually fell within the Confrontation Clause, but that, since that question was not before the Court, they joined fully in Justice Scalia’s analysis of the Confrontation Clause issues. Justice Souter, joined by Justice Ginsburg, in what amounts to the controlling opinion, concurred in the opinion except as to Part II.D.2, and noted that the Court’s analysis in Part II.E of Justice Scalia’s opinion provided the necessary rationale to arrive at the judgment vacating the California Court of Appeal’s judgment. Justice Breyer dissented on the basis that the forfeiture rule enunciated in Crawford v. Washington should extend to the facts of this case, where the pattern of domestic violence activities presented a systematic attempt to keep the victim from reporting or testifying as to the actions of the accused.
• Plains Commerce Bank v. Long Family Land & Cattle Co. (Opinion of the Court by Roberts, C.J., joined by Scalia, Kennedy, Thomas, Alito, JJ., and joined as to Part II by Stevens, Souter, Ginsburg, Breyer, JJ.; opinion concurring in part, concurring in the judgment in part, and dissenting in part by Ginsburg, J., joined by Stevens, Souter, Breyer, JJ.). A non-Indian bank sold fee title in tribal reservation land to a non-Indian purchaser; an Indian couple brought suit in tribal court that the sale was discriminatory in that it was made at more favorable terms than were offered to the Indian couple. The question presented to the Supreme Court was whether the tribal court had jurisdiction over the discrimination claim regarding a non-Indian landowner’s sale of its land on a tribal reservation. The Supreme Court held that the tribal court did not have jurisdiction. As a threshold issue, the Court found that the Bank did have standing to pursue its challenge to the tribal court’s judgment. The Court then found that its cases “have made clear that once tribal land is converted into fee simple, the tribe loses plenary jurisdiction over it.” Slip op. at 10. The Court then held that the tribal court’s exercise of jurisdiction in this case did not fall within one of the two narrow exceptions to this rule. The Court held, “By definition, fee land owned by nonmembers has already been removed from the tribe’s immediate control. … It has already been alienated from the tribal trust. The tribe cannot justify regulation of such land’s sale by reference to its power to superintend tribal land, then, because non-Indian fee parcels have ceased to be tribal land.” Slip op. at 17. Dissenting in part, Justice Ginsburg wrote that she dissented from the Court’s opinion “to the extent that it overturns the Tribal Court’s principal judgment awarding the Longs damages in the amount of $750,000 plus interest. … That judgment did not disturb the Bank’s sale of fee land to non-Indians. It simply responded to the claim that the Bank, in its onreservation commercial dealings with the Longs, treated them disadvantageously because of their tribal affiliation and racial identity. A claim of that genre, I would hold, is one the Tribal Court is competent to adjudicate.” Dissenting slip op. at 1.