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At the High Court, Damage Control

Plaintiffs' lawyer Jeffrey Fisher heard little sympathy from the justices for Exxon Valdez victims.
Plaintiffs' lawyer Jeffrey Fisher heard little sympathy from the justices for Exxon Valdez victims. (By Lawrence Jackson -- Associated Press)
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Fisher tried to deflect some of the more barbed questions -- "I don't want to act like a dog chasing his tail here, Justice Kennedy . . . I'm not going to fight you on that" -- but it was clear that the court's main motive in hearing this case was to cut the jury award. When Fisher said he thought the justices had agreed to hear the case because of an unsettled aspect of maritime law, Scalia cut him off.

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"That," the justice said, "and $3.5 billion."

One thing working in the Valdez victims' favor: Justice Samuel Alito, an Exxon shareholder, recused himself from the case. Also in the plaintiffs' favor: No justice, with the possible exception of Scalia and the ceiling-staring Clarence Thomas, liked Exxon's assertion that no punitive damage is legitimate.

Ruth Ginsburg pointed to the evidence that "Exxon knew that this captain had a severe alcohol problem, and yet, they let him stay on voyage after voyage and did nothing about it."

Even Roberts seemed skeptical when he asked Exxon's lawyer, former solicitor general Walter Dellinger: "So you have to have a shareholder driving the boat before you can assess liability?"

Dellinger licked his lips frequently and drank generously from his water glass. "Exxon gained nothing by what went wrong and paid dearly for it," he pleaded to the justices.

It seemed likely Exxon would have to pay more for it -- though not terribly much. The court's dealmakers, Kennedy and David Souter, floated the idea that punitive damages could be double the amount of compensatory damages -- about $800 million, instead of the $2.5 billion ordered by the appellate court. Souter wondered aloud whether "we've simply got to come up with a number."

The notion of the justices pulling a number out of thin air seemed a bit too neat for an oil spill that spoiled 1,200 miles of Alaska's coastline. But then the argument had less to do with the dead marine animals and ruined fishermen than with an obscure maritime law case from 1818 called The Amiable Nancy-- or, as Scalia put it, the " Amiable Whatever It Is."

As the justices probed the intricacies of the laws of the sea, 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."


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