Cite as: 518 U. S. 415 (1996)
Scalia, J., dissenting
affirmed nor rejected the practice of appellate weight-ofthe-evidence review that has been adopted by the courts of appeals—a development that, in light of our past cases, amounts to studied waywardness by the intermediate appellate bench. Our unaccountable reluctance, in Grunenthal v. Long Island R. Co., 393 U. S. 156, 158 (1968), and Neese v. Southern R. Co., 350 U. S. 77 (1955), to stand by our precedents, and the undeniable illogic of our disposition of those two cases—approving ourselves a district-court denial of a new trial motion, so as not to have to confront the lawfulness of reversal by the court of appeals—is authority of only the weakest and most negative sort. Nor can any weight be assigned to our statement in Browning-Ferris Industries of Vt., Inc. v. Kelco Disposal, Inc., 492 U. S. 257, 279 (1989), seemingly approving appellate abuse-of-discretion review of denials of new trials where punitive damages are claimed to be excessive. Browning-Ferris, like Grunenthal and Neese, explicitly avoided the question that is before us today, see 492 U. S., at 279, n. 25. Even more significantly, Browning-Ferris involved review of a jury's punitive damages award. Unlike the measure of actual damages suffered, which presents a question of historical or predictive fact, see, e. g., Craft, 237 U. S., at 661, the level of punitive damages is not really a "fact" "tried" by the jury. In none of our cases holding that the Reexamination Clause prevents federal appellate review of claims of excessive damages does it appear that the damages had a truly "punitive" component.
In any event, it is not this Court's statements that the Court puts forward as the basis for dispensing with our prior cases. Rather, it is the Courts of Appeals' unanimous "agree[ment]" that they may review trial-court refusals to set aside jury awards claimed to be against the weight of the evidence. Ante, at 435. This current unanimity is deemed controlling, notwithstanding the "relatively late" origin of the practice, ante, at 434, and without any inquiry into the
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