In a 5-4 decision handed down by Justice John Paul Stevens, the Supreme Court held that excessive punitive damages awards violate the Due Process Clause of the Fourteenth Amendment. The doctrine of “substantive due process,” said the Court, gave BMW a substantive right not to be coerced into changing its nationwide corporate policies based on the laws of one particular state.
This case is activist because the Court relies upon notions of living constitutionalism to read broad constitutional terms divorced from the mooring of their original meaning, rendering them empty vessels into which they can pour any policy preferences they desire. The Court has done so numerous times under the doctrine of “substantive due process,” which holds that the Due Process Clause encompasses substantive rights that must be ascertained by judges. In this case, the majority used the doctrine to invalidate excessive punitive damages on the grounds that the Fourteenth Amendment guarantees a certain modicum of “fairness.” The Due Process Clause does indeed guarantee fairness, but only as it relates to judicial process. As written, the clause protects the citizens from government abuse by guaranteeing that they cannot be deprived of life, liberty, or property except by a fair process. The Clause itself provides no indication of substantive rights, such as the one discovered by the Court in this case. This substance, said the Court, requires a multi-factor test to determine whether damages are excessive; in addition to this test, however, the Court warns that other considerations, which are unidentified, may apply. The result is a blueprint for judicial activism: Judges play legislator in weighing whatever factors they like to arrive at a pleasing result.
The Court’s opinion has little to do with the Constitution, Justices Scalia and Ginsburg both explain in their dissents. Limiting damages under state law is the role of state courts and state legislatures, not the Supreme Court, writes Justice Ginsburg, and elected bodies do often undertake this very task. The Court, however, "is not well equipped for this mission… It has only a vague concept of substantive due process, a ‘raised eyebrow’ test… as its ultimate guide."
For Scalia, the majority’s opinion is nothing more than “a disagreement with the [Alabama] community’s sense of indignation [and] outrage.” The civil court system was created by and is regulated by individual states, based upon their citizens’ communal understanding of fairness and justice. Applying the Due Process Clause to regulate punitive damages usurps power that rightly belongs to the states and their citizens.