Was the Oregon Supreme Courts Opinion Heroic, Dangerously Defiant, or Simply Formalistic?
There are a number of ways to think about what the Oregon Supreme Court has done. One might view it as standing up heroically to the United States Supreme Court, in the same way that the Ohio Supreme Court in the 1859 case Ex Parte Bushnell refused to apply the federal law of slavery even after the United States Supreme Court had decided Dred Scott. The only problem with this analogy, however, is that it is clear, in retrospect, that the Ohio Supreme Court was self-consciously refusing to follow the law, and that its members did so because the issue at hand was so overwhelmingly important. Since the Civil War, of course, we have had less happy experiences with state supreme courts declaring their independence from the U.S. Supreme Court – in order, for instance, to keep segregation in place. Furthermore, while the evils of the tobacco industry may be very deeply felt by some, it is ridiculous to place it on the same level as slavery. The most reasonable and interesting way to understan
