by Paul Levine
Touché.
“I just figured you were doing some field research,” the chief continued, eyes twinkling.
“Actually, I’ve written extensively about sex discrimination,” Truitt said.
“So you have. I read your piece on the male-only military college case. You didn’t much care for my dissent.”
“I just thought it was too late in the day to allow a public college to bar women. The states can no longer discriminate based on gender, race, or sexual preference.”
“‘No longer’? I rather like that term. It implies that the Court has changed, which it damn well has. But the Constitution hasn’t changed, except for those twenty-seven amendments. So, how do you explain it Sam? How did we get so far from the framers’ original intent?”
“We haven’t. They simply weren’t faced with these questions in the context of the current era. If Madison or. Jefferson were alive today, I doubt they’d disagree with giving women the right to vote which took an amendment to their Constitution. I wrote a piece called, ‘Whose Original Intent?’ in which—”
“Read that one, too, and didn’t agree with a damn thing. As for your forays into legal realism, inviting judges to ignore precedent and use the social sciences to shape our lives, well it’s just plain dangerous. Then there’s your essay on legal pragmatism. There are no grand foundational principles, eh Sam.” The chief raised his bushy eyebrows. “Being a legal pragmatist means never having to say you have a theory.”
“That’s a bit of an oversimplification.”
The older man beamed a photogenic, white-toothed grin. He was still tan from a summer at Martha’s Vineyard, where he enjoyed tweaking the noses of Boston’s liberal establishment at clambakes and cocktail parties. Truitt looked directly into the chief justice’s eyes. The two men were the same height, six two, though the chief probably weighed twenty-five pounds more than Truitt.
“You probably think I’m a troglodyte,” the chief said.
“I think you like getting a rise out of people, particularly the junior-most justice.”
“Well, you’re not wrong about that, but I mean what I say. You know what makes me a good judge, Sam … hell, a great judge?”
“Modesty?” Truitt ventured.
Whittington laughed. It was a big man’s laugh, water tumbling over a falls. “Because I don’t have an agenda. I don’t give a rat’s ass if a woman has an abortion. But I object to this Court finding a constitutional right of privacy when the sacred document doesn’t mention the word.”
“Needless to say, I—”
“Save your breath, Sam. I know your position.”
Truitt wondered what the judicial conference would be like, the chief’s thunderous voice shouting down all dissent. He was reminded of Samuel Goldwyn’s famous line to a young screenwriter: “When I want your opinion, I’ll give it to you.”
“I’ll tell you something else,” the chief rumbled. “Miranda is a disgrace. Hell, now the cops have to urge a defendant not to confess. I’d overrule the so-called exclusionary rule, too. If the constable blunders, why should the criminal go free?”
“I suppose you’d like to do away with the Fifth Amendment privilege against self-incrimination.”
“Not entirely,” Whittington said, without a trace of irony. “But what’s the trial judge required to do when a defendant doesn’t take the stand?”
The old buzzard’s treating me like a first-year law student.
“The judge instructs the jurors that they’re not permitted to draw an adverse inference from the defendant’s failure to testify,” Truitt said, straining to keep the annoyance out of his voice.
“Doesn’t that just fly in the face of common sense? Why shouldn’t the jury consider just why the little weasel didn’t even try to contradict the evidence against him?”
“Because this Court held that such an instruction compelled the defendant to be a witness against himself.”
“A ridiculous decision!” Whittington roared. “I’d overrule it if I had the votes.”
A door opened, and a marshal in a blue blazer—perhaps attracted by the noise, most of which came from the chief—stuck his head inside, saw the two men, and ducked out again.
The chief lowered his voice and moved closer to Truitt, as if ready to share a great secret. “Sam, you know the tobacco case on the docket?”
“I haven’t read the briefs yet, but I know Blue Cross claims the cigarette companies manipulated nicotine levels to keep smokers addicted.”
“That’s the one. Just part of the modern-day trend to blame big business for our personal weaknesses. If people want to smoke, should the law stop them?”
“But that’s not the issue, Chief. Blue Cross wants reimbursement for medical payments based on—”
“Paint it with any brush you want, but it’s just another example of using the Courts to change social policy. You’re not inclined to favor the plaintiff, are you, Sam?”
The question jolted him. “I’m not inclined either way until I read the briefs and listen to oral argument.”
The Chief coughed out a harrumph. “Don’t get so damned self-righteous. We’re all inclined one way or another and on rare occasions can be persuaded to go against our predispositions. I was just hoping to count on you on this one.”
So this is how it’s done. Horse trading like congressmen in the cloakroom. So much for the holiness of the temple.
“You’re not lobbying for my vote, are you, Chief?”
“I’m just trying to see where you stand, but I’m getting the feeling that you and I are going to disagree on damn near everything,” Whittington said. “I can tell from your writings that you’re plaintiff oriented.”
“Only when the law and the facts are on their side,” Truitt said.
“The law is whatever the hell we say it is,” the chief said with a crafty smile, “and the facts can be read any which way we want. Oh, hell, Sam, let’s not get into a fuss yet. I just want to lay my cards on the table.” The chief paused and seemed to appraise the younger man. “I suppose you know I opposed your appointment.”
Truitt chose to stay as quiet as a little weasel invoking the Fifth.
“Well, I did,” the chief said, “and you probably think it was on political grounds, but you’re wrong. The Court is split into too many camps now. It’s hard as hell to put together a consensus. Too many plurality opinions, too many concurring opinions on different grounds, way too many dissents.”
“‘Nine scorpions in a bottle’ was the way Oliver Wendell Holmes described it,” Truitt said.
“On this Court, we’ve got field mice, gnats, and maybe a horse’s ass.”
“Which one are you, Chief?”
Whittington’s face froze for a second, but then he laughed drily, like a log crackling in a fire. “I’m the old lion, the king of the jungle. And who are you, Sam? Tell me why you’re here, and don’t give me any BS about answering your country’s call. I know you hustled like a son of a bitch to get the appointment.”
“I want to make my mark. Fifty or a hundred years from now, I’d like scholars to read my opinions and say, “Damnit, he was right, and he was right before anyone else’”
“Just as I thought, you want to be a star. That makes you dangerous because the quickest way to be noticed is to ignore precedent and strike out on your own.”
“I respect the past, but I’m not irrevocably bound by it. Jurisprudence must recognize that the law changes with society. All the great justices, Holmes included, did just that.”
The chief looked toward the back wall, where a sculpted marble frieze depicted a winged female figure of Divine Inspiration flanked by Wisdom and Truth. “When Teddy Roosevelt finally appointed Holmes to the Court, the Great Dissenter was sixty-one, which is what, fifteen years older than you. He’d been a Civil War soldier, a lawyer, a professor, and a judge in Massachusetts who’d already written a thousand opinions. He was the foremost legal mind in the country. He’d been tempered by ex
perience, and I assure you of this, when he taught at Harvard, he didn’t prance around the stage like some”—the chief justice searched for a phrase—“some vaudeville comedian.”
Vaudeville? This guy probably thinks Bob Hope is a bright new comic.
“John Jay was only forty-three when Washington appointed him the first chief justice,” Truitt said.
Whittington grinned, as if he’d just filled an inside straight. “I knew John Jay. John Jay was a friend of mine. And trust me, Sam, you’re no John Jay … or Oliver Wendell Holmes, either.”
“I get the point,” Truitt said. “You don’t like my style.”
“I don’t give a dog’s dick about your style! All I care about is the Court. This isn’t a classroom or a burlesque hall. Don’t expect to hear applause or be rewarded with adulation. And don’t be impatient about writing opinions. You know I give the assignments.”
“Only when you’re in the majority.”
“When it counts, I make it my business for the majority to be with me. With all the different factions diluting the voice of the Court, we’re weakened as an institution. You’re way out there, and I predict a string of showy one-man dissents aimed at your Harvard Square and New Republic friends.”
“I suppose having eight other justices is a real nuisance,” Truitt said, measuring his words. “It would be a lot more efficient if you could just decide every case, maybe assign the opinions to one of your admirers.”
Whittington barked out a laugh. “Well, you don’t scare easy, I’ll give you that.” He looked around, as if someone might be watching, but the courtroom was deserted. “I like you, Sam. As a man, I like you. Hell, you and Curtis Braxton are the only judges I’ve got who can break walnuts in your fists or chop down a tree with a one-handed axe. Maybe someday you and I should Indian wrestle to decide a vote. Or should I say, ‘Native American wrestle,’ so as not to offend your sensibilities?”
“Chief, just out of curiosity, how long are you planning to bust my chops?”
“Not long, Sam. Ten or fifteen years at most. And in case you’re thinking this old billy goat is going to retire before then, I’ll remind you that Holmes was still on the Court at ninety-one, Bill Douglas they had to push out of here in his wheelchair. I never cared much for Douglas’s seat-of-the-pants jurisprudence, but he was a tough monkey. Christ, after his stroke, he drooled on the briefs, but he was there voting at conference, irritating the hell out of his chief.”
I think I’m auditioning for that part.
“Douglas used to call Warren Burger ‘Dummy’ behind his back,” the Chief continued. “When Douglas was too ill to read the briefs, a clerk asked him how he’d be able to vote. You know what he said?”
“‘I’ll wait to see how the Chief votes and then vote the other way,’” Truitt said, figuring it might be a good strategy for him, too.
“You got it,” Whittington said, nodding.
The conversation had wound down, and the Chief looked as if he was ready to dismiss the younger man. As he turned to leave he said, “Stop by my chambers this afternoon for the formal orientation and a glass of brandy.”
“I’m still interviewing for my final law clerk,” Truitt said.
“My assistant will call you,” the Chief said, as if he hadn’t heard. Or cared. He turned back toward the junior justice. “One other thing, Sam. I read the FBI files on you. It’s all hearsay, double hearsay, and innuendo, of course, but you have a reputation as having an eye for the ladies.”
An eye for the ladies. Vaudeville. Burlesque. Maybe I should crank up my Model T.
“Now, in my younger days,” Whittington said, “I cut a pretty wide path through the hay field, so I understand. I don’t care if you were humping one-legged midgets in Faneuil Hall, but you’re on my Court now. The Court of Jay, Marshall, Taney …”
And Whittington.
“I don’t know what you’re getting at Chief, but I think you’re way off base.”
The chief justice ignored him and plowed ahead. “Your father-in-law’s an old friend. I don’t agree with his politics, but he’s a fine poker player. You never would have been appointed without him, and you sure as hell never would have been confirmed.”
“Senator Parham’s retired,” Truitt said.
“He still has friends on both sides of the aisle. So, it seems to me, a young man like you, a man who married into a prominent family, owes something to his wife, Sam.”
Truitt reddened with anger. He fought the urge to grab the chief by the lapels and tell him to mind his own business. “Chief, I’d appreciate it if you and I could confine our conversation to Court business,” he said, grimly.
“This is Court business! Frankfurter once said that the Court had no excuse for its existence unless it is a monastery. Now, he meant that we should be isolated from outside influences, but I think the analogy extends to personal lives, too. Do you follow me, Sam?”
Like a duck behind its mother.
“With all due respect, Chief, I think you’re out of line.”
“Can’t I get a simple yes from you, Justice Truitt?” the chief justice snapped.
“Yes, sir,” Truitt replied, feeling like a noncom responding to a superior officer. “I know how to comport myself, and I don’t need anyone to remind me.”
“Don’t use that tone with me! Can’t you see I’m trying to help you? You’ve got enemies out there, and if you screw up, they’ll ship your ass back to your ivy-covered tower.”
“Then I should thank you for your guidance,” Truitt said, gritting his teeth, getting the message.
If I roll over for the Chief, give him my vote, he’ll toss me a line, drag me out of the deep water. If I don’t, he’ll let sharks like Senator Blair and the Family Values Foundation devour me.
“You’re welcome,” Whittington said. “Good to have you aboard. You have my full support, but if you ever do anything to bring disrespect on this Court …”
The Chief paused, his eyes aflame, his smile menacing. “I’ll have your dick on the chopping block before you can zip up your fly.”
* * *
IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF FLORIDA
Miami Division
Case No. 96-00148-CIV-Schenkel
GLORIA LAUBACH, individually
and as personal
representative of the
Estate of Howard J. Laubach,
deceased, et al.
Plaintiffs,
v.
ATLANTICA AIRLINES, INC.,
a Delaware corporation,
Defendant.
_________________________________/
ORDER GRANTING DEFENDANT’S MOTION
FOR SUMMARY JUDGMENT
Defendant Atlantica Airlines, Inc. (“Atlantica”) has moved for summary judgment on two grounds as to the wrongful death claims asserted against it by Plaintiffs in these consolidated actions.
Procedural Background
This action arises from the devastating crash of Atlantica Flight 640 in the Florida Everglades in December 1995. Howard J. Laubach was one of the 288 persons on that flight, all of whom died. In January 1996, Mrs. Laubach, acting as personal representative of her husband’s estate, filed this action in the Eleventh Judicial Circuit Court in and for Dade County, Florida. Atlantica timely removed the action to this Court pursuant to 28 U.S.C. 1332 and 1337. Numerous other lawsuits involving the same incident were transferred to this District and consolidated with the instant action in accordance with the multi-district provisions of 28 U.S.O. 1407.
Laubach’s widow and personal representative filed this action pursuant to the Florida Wrongful Death Act, sections 768.16-27 of the Florida Statutes. She contends that Atlantica was negligent in several respects, including failing to furnish an airworthy craft, to navigate and operate the plane properly, to train its crew properly, to inspect and maintain the aircraft, and to provide sufficient security to prevent the placement of explosive devices on the airplane. She conten
ds that the Airline’s negligence directly caused her husband’s death, and that she has sustained pain and suffering and economic damages as a result of his premature death. Mrs. Laubach is seeking damages in excess of $2 million from Atlantica. The complaints filed by numerous other plaintiffs have been consolidated herein on the issue of liability.
Factual Background
On December 21, 1995, Flight 640 left New York’s LaGuardia Airport bound for Miami with 275 passengers and 13 crew members aboard. The first two hours of the flight were uneventful. On its approach to Miami International Airport, there was an explosion in the number two engine and a resulting loss of all flight controls due to severed hydraulic lines. The aircraft crashed, killing all on board.
The cause of the Flight 640 disaster has not been determined, and may never be determined, because much of the aircraft is buried in the Everglades and cannot be recovered. The only evidence of record concerning the cause of the crash is that traces of explosive components commonly found in terrorists’ bombs were discovered on engine parts recovered at the crash site.
Standard of Review
In considering Atlantica’s motion for summary judgment, this Court must draw all inferences from the evidence in favor of Plaintiffs, the nonmoving parties. First Union Discount Brokerage Services, Inc. v. Milos, 997 F.2d 835 (11th Cir. 1993). Summary judgment is appropriate if the record shows “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c). However, in order to demonstrate a “genuine” issue of fact, Plaintiffs “must do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586 (1986). Rather, they “must come forward with ‘specific facts showing that there is a genuine issue for trial.’“ Id. at 587.
