If you see a story indicating that the Supreme Court has once again added to the body of legal incoherence, you don't even have read it to know how the voting went: The usual 4-4 split, with Justice Anthony Kennedy jumping off the deep with the four liberals who wouldn't know a constituional principle if they tripped over it, which, come to think of it, they often do:
The Supreme Court cast a new cloud over the future of the tobacco industry on Monday, ruling the cigarette-makers can be sued for deceiving smokers about the dangers of their highly popular "light" cigarettes.
The decision clears the way for a new era of tobacco litigation, allowing class-action lawsuits to proceed in several states and opening the door to new suits in most other states. Ten years ago, the tobacco industry agreed to a $206 billion settlement with 46 states to end lawsuits over the health-care costs of smoking. But that agreement did not block new private lawsuits.
[. . .]
In the past, the Supreme Court had shielded cigarette-makers from being sued by smokers who say they were not warned of the dangers of smoking. Since 1969, federal law has required warning labels on cigarette packs, and the court in 1992 said that federal law barred claims from smokers who said they were not warned of the health risk.
But in a 5-4 ruling on Monday, the high court switched course somewhat and ruled the cigarette-makers can be sued for deceptive advertising under state consumer-protection laws. Justice John Paul Stevens said those who sell products have a "duty not to deceive" the public through their advertising or marketing. The federal cigarette warning law does not shield the tobacco industry from being sued under these state laws for "making fraudulent statements," he said.
I'm no fan of federal pre-emption, but it's been an established precedent for a long time now. Just this June, the court ruled 8-1that a lawsuit alleging a defective catheter filed in a state court was pre-empted by the federal act reserving regulation of medical devices to the FDA. Never mind the chaos we're going to have over tobacco lawsuits, how are businesses, states and other courts now going to know when pre-emption matters and when it doesn't?
Deceptive advertising? Is there a person left in the country who doesn't know smoking is dangerous? But, hey, not my fault I got hooked. Somebody else made me do it. Gotta sue somebody, that's the ticket. Personal responsibility? Never heard of it.
