The Supreme Court refused on Monday to hear complaints that the settlement of a multitude of lawsuits by former pro football players over head injuries did not provide adequately for one of the most serious forms of brain trauma. The Justices offered no explanation as they turned aside appeals by two groups of retired players, leaving intact the 2015 deal that ended the lawsuits.
In a separate action, the Justices refused – over two dissenting votes – to stop Ohio from going ahead with a second attempt to execute a death-row inmate, after the first attempt had failed in 2009, causing the inmate serious pain before the procedure was called off because the execution team could not get an IV inserted to transmit the lethal drug combination. The denial of review of the case of Romell Broom of Cleveland was one action among several in recent days that prompted Justice Stephen G. Breyer to call anew for a study by the Court of whether the death penalty is unconstitutional as a form of “cruel and unusual punishment.”
The Court also passed up a plea for it to reconsider, in light of the new mode of consumer goods sales via the Internet, old precedents that limit the power of states to impose taxes on out-of-state companies that sell to in-state customers. The prior precedents have been widely criticized as seriously out of step with modern forms of retailing, as well as too tight a restriction on state taxing power over goods flowing into the state from outside.
The National Football League had faced years of criticism for allegedly trying to cover up the problem of serious head injuries that players suffered from concussions that occurred during games or practices. A popular movie was made about the sports scandal.
Scores of lawsuits by former players, or by relatives of ex-players who had died, led ultimately to intensive efforts to reach a settlement after the cases were combined as a class-action effort in a Philadelphia federal court.
A settlement finally came in April 2015, providing mainly for payments to players or their families if they had developed one of a half-dozen forms of brain disease or dysfunction, including Alzheimer’s and dementia. But, for most players, the settlement did not provide payments for those who developed one particular form of trauma – the medical condition known as CTE – Chronic Traumatic Encephalopathy. The condition, it seems, can only be diagnosed after a person having it has died, and their brain is then examined. Medical experts who examined the brains of deceased players found symptoms of the trauma in almost all cases.
The negotiators left CTE victims mostly out of the final deal, on the theory that not enough was known about it in current medical science to provide an adequate financial arrangement. The settlement does provide that, if a player develops symptoms of one of the other forms of brain trauma that might be related to CTE, they could receive a payment.
A federal judge approved the settlement, and the U.S. Court of Appeals for the Third Circuit upheld that ruling. That was the one left intact by the Justices on Monday. There was no indication of any dissent.
While the players who objected to the final settlement told the Supreme Court that the deal leaves out perhaps 72 percent of former players who may suffer from brain trauma, the NFL told the Court that the final plan will ultimately pay out nearly $1 billion, to perhaps 20,000 ex-players. The NFL vigorously defended the deal in its filings with the Justices, arguing that those who objected to the settlement were only a small percentage of those affected by it.
In the Ohio death penalty case, Justices Breyer and Elena Kagan were the only dissenters as the Court refused to hear claims that a second attempt at execution after the first attempt had failed is itself a form of cruel and unusual punishment in violation of the Eighth Amendment. The inmate argued, in addition, that the first attempt – which involved 18 pain-inducing attempts to insert an IV line – was also a violation of the Eighth Amendment.
The Court last ruled on a second execution attempt in a deeply split decision in 1947, in the case of Louisiana v. ex rel. Resweber. In that case, an electric chair failed to operate properly. The Supreme Court refused to block a new attempt. In the new Ohio case, the state Supreme Court had partly relied on that precedent in rejecting Romell Broom’s constitutional challenges.
Broom’s lawyers had argued that the 1947 precedent did not apply, because the Court had said in that ruling that the failure could not have been foreseen and the procedure was handled in a humane way. Broom’s situation was very different, his lawyers contended, because the execution team had not been properly trained, did not follow the existing protocol, and brought in an outside doctor who also botched the attempt to find a vein that would work to deliver the lethal drugs.
Breyer and Kagan did not file their views as part of the order that denied review of Broom’s appeal. But Breyer, writing only for himself, referred to the Broom case and others on which the court had recently denied review to repeat points he had made earlier – that the death penalty is carried out now in a random and arbitrary manner, and that inmates are left lingering on death row for years as they contemplate their coming deaths. Breyer has several times called for a review by the Court of the death penalty’s validity.
In the Internet sales cases that the court refused to hear on Monday, the Justices left undisturbed two precedents – one from 1967 and another from 1992 – that bar states from imposing sales or use taxes on the merchandise sold in the state by companies that have no stores, offices, warehouses, employees, or payroll in the state. States contend that those precedents severely limit the power of states to collect taxes on vast amounts of merchandise sold to their residents. In more recent years, the Court has refused multiple times to reconsider those prior rulings.
(This post also appears today on Constitution Daily, the blog of the National Constitution Center in Philadelphia.)