... Ginsburg discussed Rule 50. Kennedy invoked Instruction 30, Instruction 33 and Instruction 36. Spectators showed evidence of drowsiness. Reporters yawned -- at least until they were jolted awake by an alarming prospect raised by Ginsburg, who spoke about "a new trial" and the "next time around."
A new trial? After 19 years of legal fighting? Out on the plaza after the argument, Brian O'Neill, one of the Alaska victims' lawyers, conceded that, whatever the Supreme Court's ruling, Exxon had already won. "I guess the lesson you learn," he said, "is that if you're big and powerful enough, you can bring the system to a halt."
The real sympathy vibrating in the Supreme Court was all for Exxon-Mobil, or so it seems. Washington Post reporter, Dana Milbank, felt the vibes.
What bothered the chief justice was that Exxon was being ordered to pay $2.5 billion -- roughly three weeks' worth of profits -- for destroying a long swath of the Alaska coastline in the largest oil spill in American history.
"So what can a corporation do to protect itself against punitive-damages awards such as this?" Roberts asked in court.
The lawyer arguing for the Alaska fishermen affected by the spill, Jeffrey Fisher, had an idea. "Well," he said, "it can hire fit and competent people."
The rare sound of laughter rippled through the august chamber. The chief justice did not look amused.
The biggest award so far to those whose lives were ruined by the drunken Exxon tanker captain's incompetence is, ta da, $15,000! The Court doesn't see how Exxon could be responsible for their tanker captain.
Several justices, however, seemed more concerned about the emotional distress of the Exxon executives. "I assume the test is the person has to be high enough that it justifies holding the entire corporation" responsible," Antonin Scalia said, "and I doubt whether a captain is high enough."
Justice Anthony Kennedy, wagging his finger at Fisher as he challenged the lawyer's argument, charged that "the corporation's responsibility or complicity or culpability is simply not relevant under your theory of the case."
Roberts seemed the most agitated as he argued that Exxon wasn't responsible for the captain's unauthorized drunkenness. "I don't see what more a corporation can do," he said. "What more can the corporation do other than say 'Here is our policies' and try to implement them?"
"Here is our policies." Now there's a Chief Kangaroo of the Supreme Corporation we can all be proud of. Or was that George W. Bush speaking?
