Cite as: 509 U. S. 443 (1993)
Opinion of Stevens, J.
While respondents "unabashedly" denigrate those cases as "Lochner-era precedents," 18 they overlook the fact that the Justices who had dissented in the Lochner case itself joined those opinions.19 More importantly, respondents do not dispute the proposition that the Fourteenth Amendment imposes a substantive limit on the amount of a punitive damages award. Brief for Respondents 17. They contend, however, that the standard of review should be the same standard of rational-basis scrutiny that is appropriate for reviewing state economic legislation.
TXO, on the other hand, argues that punitive damages awards should be scrutinized more strictly than legislative penalties because they are typically assessed without any legislative guidance expressing the considered judgment of the elected representatives of the community.20 TXO urges
that we apply a form of heightened scrutiny, the first step of which is to apply certain "objective" criteria to determine whether a punitive award presumptively violates those notions of "fundamental fairness" inherent in the concept of due process of law. Relying heavily on the plurality opinion in Schad v. Arizona, 501 U. S. 624 (1991), petitioner argues that " 'history and widely shared practice [are] concrete indicators of what fundamental fairness and rationality require,' " Brief for Petitioner 15-16 (quoting Schad, 501 U. S., at 640 (plurality opinion), and that therefore we should examine, as "objective" criteria of fairness, (1) awards of punitive
18 See Brief for Respondents 17-18.
19 Justices Holmes, Harlan, White, and Day dissented in Lochner v. New York, 198 U. S. 45 (1905). See id., at 65, 75. In all of the cases relied on by TXO, there were only two solitary dissents. Ironically, one of the two was that of Justice Peckham, the author of the majority opinion in Lochner. See Seaboard Air Line R. Co. v. Seegers, 207 U. S. 73, 79 (1907); 198 U. S., at 52. The comparison requires two caveats. Justice Harlan died in the fall of 1911, and therefore only participated in the Seaboard Air Line and Waters-Pierce cases. Also, Justice Day did not participate in the Standard Oil case.
20 Brief for Petitioner 13-14.
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