Justices Withdraw From Tobacco Damages Case 

"The Oregon Supreme Court applied the wrong Constitutional standard," Justice Stephen G. Breyer wrote for the majority in 2007, and it should now "apply the standard we have set forth."

But the Oregon Supreme Court stuck to its original ruling, saying for the first time that it was supported by a principle of state law, one beyond the power of the United States Supreme Court to re-examine. The jury instructions Philip Morris had submitted at trial violated state law in minor but fatal ways, the state supreme court said.

At the argument before the United States Supreme Court in December, Stephen M. Shapiro, a lawyer for Philip Morris, called the state court proceedings "a game of gotcha." Some justices seemed to indicate that they were frustrated by the possibility of intransigence and gamesmanship. . . .

But there were also indications that the Oregon court had discovered a winning strategy in the case, Philip Morris USA v. Williams. No. 07-1216.

"I thought, 'This is a runaround,' " Justice Breyer said of his initial reaction to the Oregon court's ruling. But he added, "I'm not sure I think that now." . . .

In the end, though, the court did not call for further briefing on that point or explain why it threw in the towel altogether. It may have seemed bad enough to let a lower court have the last word without giving other state supreme courts a road map in all sorts of cases, including capital ones, for how they might avoid complying with rulings of the nation's highest court.

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