Solomon & Lord Drop Anchor (24 page)

“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
experience, 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 contends 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.