re: Altria Group, Inc. v. Good (07-562) (SCOTUS Oral Argument heard on Oct. 8, 2008)
The Justices today were tough on Altria lawyer Ted Olson, tougher on Good lawyer David C. Frederick–and toughest of all on DOJ lawyer Douglas Hallward-Driemeier, Assistant to the Solicitor General.
Justice Alito told Hallward-Driemeier that he found the government’s position “incomprehensible” if the FTC tar/nicotine figures are meaningless.
“You created this whole problem,” Justice Alito told him. “If the figures were misleading, then you have misled the public.”
Hallward-Driemeier tried to explain the history of the 1965 FTC regulation, and of the comparative knowledge of “compensation” over the years–the lack of knowledge at the FTC and the clear knowledge at the tobacco companies.
Justice Scalia appeared dismissive of this claim. He recalled a “lip-drape” case he had heard as an Appellate Judge many years ago. “[Compensation] has been general knowledge for a long time.” He said he’d review that case.
Justice Scalia also asked Hallward-Driemeier what the Government’s position was in Lorillard v. Reilly (2001) in which Scalia felt the government argued _for_ the Labeling Act’s ability to preempt Massachusetts’ regulation of outdoor and point of sale ads. Hallward-Driemeier argued that position was specific to the location of ads, not their content. Scalia said he’d review the case, ominously warning Hallward-Driemeier, “I’m going to hold you to your last position.”
[ALL QUOTES APPROXIMATE]