The Rehnquist Court and TobaccoThe Rehnquist Court and Tobacco

To the Editor: In his Commentary, Dr Gostin¹ hardly does justice to the Rehnquist Court's role in dealing with the top preventable cause of death in the United States, smoking-related disease.

More than 100 years ago, during the discussion regarding what was finally passed as the original Food and Drug Act of 1906, JAMA stated that “ . . . the poisoning of the population for profit by mercenary manufacturers is in its way a much more vital question. . . . ”² In 2000, by a 5 to 4 decision, the Supreme Court, in FDA v Brown & Williamson Tobacco Corp, denied the US Food and Drug Administration (FDA) jurisdiction over cigarettes.³ Justice Stephen Breyer, who wrote the dissenting opinion, observed at the time of oral argument: “Is the statute [Federal Food, Drug, & Cosmetic Act of 1938] supposed to stop the FDA from looking at the real world?”⁴ However, Justice Sandra Day O’Connor, who wrote the majority opinion, unrealistically stated that “ . . . we must be guided to a degree by common sense as to the manner in which Congress is likely to delegate a policy decision of such economic and political magnitude to an administrative agency.”³ During oral argument, Justice Antonin Scalia asked, “Why wasn't the Surgeon General's report fully enough?”⁴

One hundred fifty years ago, cholera was the etiology of a major epidemic in England, thought to be spread by “miasma in the atmosphere.”⁵ Dr John Snow, one of the pioneers of epidemiology, reasoned otherwise and, by removing the pump handle from the polluted water well at Broad Street, abruptly stopped the spread of cholera.⁶ Fortunately, the US Supreme Court was not involved in Dr Snow's decision making.