Yesterday, the U.S. Supreme Court declined to hear arguments in S&M Brands v. Caldwell. The case presented a challenge to the 1998 “Master Settlement Agreement” (MSA) between large tobacco manufacturers and state attorneys general, which imposed—without the consent of the Congress, and without the vote of a single state legislator—a $250 billion tax on tobacco consumers. (The proceeds of that tax have since been shared between Big Tobacco, the states, and the trial lawyers who assisted the states.) Lower courts had sustained the agreement. The Supreme Court’s denial of certiorari has effectively affirmed those holding and immunized the MSA from here to eternity.
The cert denial bodes ill—very ill—for any lawsuit predicated on the notion, or hope, that the Supreme Court will one of these days enforce the structure of the Constitution. The Constitution’s Compact Clause categorically prohibits any agreement among the states without congressional consent, let alone an agreement among all states to create monopoly profits and to share them with tobacco peddlers. The plaintiffs’ case was sufficiently compelling to draw vocal support from constitutional luminaries across the political spectrum—from Michael McConnell to Kathleen Sullivan; from Alan Morrison to Richard Epstein, as well as a group of prominent antitrust experts. And yet, in the teeth of the clear constitutional language, and in a political environment that, shall we say, suggests heightened public concern over crony capitalism, government collusion, and the erosion of constitutional norms, the justices couldn’t be bothered. (S&M Brands was “re-listed” once, meaning that it died not at the hands of some law clerk but after discussion among the justices themselves.) They’re too busy adjudicating the constitutionally mandated distance between funerals and obnoxious protesters.
Perhaps, a team of justices that fumbles the simple S&M Brands hand-off is yet capable of catching a constitutional Hail Mary—say, an ObamaCare “mandate” lawsuit. The smart money says otherwise: when it comes to constitutional constraints on government, we’re on our own.