THE SWITCH IN TIME: WHY DID JUSTICE THOMAS JOIN THE MAJORITY IN DUTRA AFTER WRITING TOWNSEND?

• Author: Haycraft, Don K.

In Atlantic Sounding Co. v. Townsend, (1) Justice Thomas wrote for the 5-4 majority, finding that punitive damages are available to the injured seaman for the willful denial by the employer of maintenance and cure. Yet a decade later in The Dutra Group v. Batterton, (2) Justice Thomas joined the 6-3 majority opinion that denied the same exemplary damages remedy for the seaman injured by the unseaworthiness of the ship. The vote switch seems baffling. After all, both the unseaworthiness and maintenance and cure causes of action arise from the same non-statutory source, the general maritime law. And Justice Thomas, in several earlier decisions, failed to join opinions striking down what some justices viewed as punitive damages so excessive they violated the Constitution's Due Process Clause. If anything, Justice Thomas could be viewed as a "pro punitive damages" justice. So how can we reconcile this seeming vote switch, now joining with Justice Alito, who wrote a stinging dissent to Thomas's opinion in Townsend? Although as Emerson once wrote, consistency may be "the hobgoblin of little minds," Supreme Court justices are held to a certain degree of coherence in their views. This paper will attempt to explain that Justice Thomas adheres to a constant when it comes to cases involving the availability of punitive damages. Examination of Justice Thomas's punitive damages jurisprudence reveals the common thread: Justice Thomas is not "pro" or "anti" punitive damages. He is not a result-oriented judge. Justice Thomas instead strictly adheres to Constitutional, statutory, and historical sources, in that order, when deciding the propriety of punitive damages.

In this endeavor, we will examine the eight punitive damages Supreme Court cases that Justice Thomas has taken part in, with particular emphasis on his Townsend and Dutra decisions. This review supports the proposition that Justice Thomas did not "switch" his vote. Rather, he correctly sees that no Constitutional or statutory support allowed punitive damages for breach of the seaworthiness obligation. Together with a complete absence of historical precedent for such damages, punitive damages should not be imposed by judicial fiat.

Let's start with Townsend. Justice Thomas begins with the principle familiar to maritime lawyers that maritime law is basically federal common law--the general maritime law. Townsend's employer allegedly arbitrarily and capriciously withheld the seaman's "maintenance and cure" remedy after Townsend's injury aboard the employer's vessel. Unlike prior challenges to punitive damages that made it all the way to the Supreme Court, no Constitutional precepts were involved; the employer did not challenge the availability of punitives on Due Process grounds. Instead, the employer pointed to the Court's prior maritime decision in Miles v. Apex Marine Corp., (3) which held that the federal statutory remedy set forth in the Jones Act allowed only pecuniary damages, and thus a loss of consortium claim by the deceased seaman's mother could not stand. Like in Miles, the employer argued, the federal statute displaced common law remedies such as punitives. But Justice Thomas disagreed, noting punitive damages were a centuries-old component of common law remedies. "Punitive damages have long been an available remedy at common law for wanton, willful, or outrageous conduct." (4) He pointed to maritime cases embracing punitive damages and indeed awarding punitive damages for egregious failure to pay maintenance and cure. See, e.g., The City of Carlisle (5) and The Troop. (6) Responding to the argument that the Jones Act's passage in 1920 provides evidence Congress overruled such maintenance and cure decisions, Justice Thomas explained the statute provides the seaman with a negligence remedy (thus Congressionally reversing the Court's 1903 decision in The Osceola (7)). Congress did not displace pre-existing common law remedies for...