Justices rehear case on smokers' damage suits Thomas may hold tie-breaking vote

January 14, 1992|By Lyle Denniston | Lyle Denniston,Washington Bureau of The Sun

WASHINGTON -- The Supreme Court yesterday called up a case that it had been holding for the tie-breaking vote of new Justice Clarence Thomas -- a major case on smoking and lung cancer -- but a one-hour hearing yielded not a hint of how he felt.

In fact, Justice Thomas was the only one of the nine justices who sat silent throughout the hearing. It was the second public airing by the court in recent months on the question of allowing smokers or their families to sue cigarette makers for injury or death resulting from smoking.

The industry contends that Congress gave cigarette companies broad immunity from smokers' damage claims, provided that manufacturers use health warning labels on their packages and in their advertising.

Smokers contend that Congress left room for damage lawsuits in state courts, at least when the claim is that the industry covered up the health hazards of smoking.

Justice Thomas was not on the court when the first hearing on the issue came up in October. After studying the case briefly at that time, the other justices sent down word that they would hear it again later, which usually is a strong hint from an eight-member court that it is split 4-4 on an issue.

The implication was that Justice Thomas' vote would be needed to settle the outcome.

The eight justices who had heard the case the first time got actively involved in it again yesterday, pressing two lawyers closely for answers. But the questions provided no signs of how they might be lined up on either side of a 4-4 split.

Justice Thomas, who generally has taken little part in questioning lawyers, sat back during the smokers' case, occasionally read items on his desk and mostly just watched the other justices mix it up with Laurence H. Tribe, a Harvard law professor arguing for the smokers, and with Washington lawyer H. Bartow Farr III, speaking for the tobacco industry.

Mr. Tribe, who was recruited to handle the new hearing after the first one apparently went badly for the smokers' lawyer, told the court that the cigarette manufacturers were demanding in court far more legal immunity than Congress had granted in the warning-label law.

If the industry wins this case, he contended, it would mean "the companies can do no wrong" legally if they simply use the labels Congress specified -- even if the companies learn that smoking is even more deadly than some have thought and decide not to warn anybody about that.

Although Mr. Tribe seemed to shape his argument mainly to win the vote of the most conservative justices, by making a strong plea for reading federal law narrowly to protect states' authority to protect the health of their citizens, he was badgered repeatedly by one of the conservatives, Justice Antonin Scalia.

Mr. Farr argued along the same lines he used at the first hearing, suggesting that Congress essentially had acted to oust the states from any form of control over the communications between cigarette companies and their customers.

5) A final ruling is expected by summer.

OTHER SUPREME COURT ACTIONS

CASES REJECTED

Abortion clinics. The Supreme Court turned down an attempt by four Illinois foes of abortion to revive a law that had banned abortions in doctors' offices and regular abortion clinics. The law required, instead, that abortions be done only in hospital-like surgical centers -- thus potentially raising their cost. The court had agreed more than two years ago to consider reinstating the law, but then the law was all but erased from the books by an out-of-court settlement of that case. Two Illinois nurses and two would-be fathers tried to block that settlement, so as to revive the law. The court refused to hear them. Murphy vs. Ragsdale (No. 91-808).

"Whistle-blowers." The court refused to consider a plea to give government workers a right to take their complaints of government wrongdoing to a higher public agency rather than pursuing them first -- perhaps futilely -- within the chain-of-command in the agency where they worked. The Wyoming Supreme Court, ruling in the case of a girls' reform school employee, said a public worker could be fired for by-passing her own boss with complaints of mismanagement in the agency. Mekss vs. Wyoming Girls' School (No. 91-668).

Lawyer discipline. The court left intact a $1 million penalty against a lawyer, a legal advocacy organization, and two journalists for pursuing a "frivolous" lawsuit against Nicaraguan "contra" leaders and Central Intelligence Agency operatives for allegedly carrying on a gun-running and drug-trafficking plot as part of the secret Iran-contra scandal during the Reagan administration. Christic Institute, Sheehan, and Avirgan vs. Hull (Nos. 91-617, 91-618, 91-619).

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