Solomon and Lord Drop Anchor

CHAPTER 2

The Junior Justice

Oliver Wendell Holmes Jr. sat here. Oh, not in this chair. Not even in this building, if we’re being tediously literal about it, Sam Truitt thought.

But Holmes sat here, at the far end of the bench, to the chief justice’s left, when he was the junior justice on the Supreme Court of the United States.

So what the hell am I doing in old Ollie’s chair?

Which was also, at various times, figuratively at least, the chair of Brandeis, Cardozo, Black, Frankfurter, and Brennan. Giants of jurisprudence whose thundering pronouncements were engraved in stone for the ages. Men of soaring intellect and towering integrity.

How will I even begin to measure up?

It was a rare moment of insecurity for Sam Truitt, who frequently was described as egotistical and vain, even by his friends. His enemies called him a left-wing, Ivy League intellectual snob who was out of touch with the real world. But friends and enemies alike agreed that he was brilliant and eloquent. His opponents feared that eventually, with a long enough tenure, he would be worth two or three votes on the Court, using his superior intellect and persuasive skills to sway others.

At the moment, though, Truitt wasn’t capable of persuading cats to chase mice. Deep in a crisis of confidence, drowning in waves of self-doubt, he was an imposter, a graffiti artist in the Louvre, a trespasser in a shrine.

Though he was a broad-shouldered man, over six feet and two hundred pounds, a former athlete still fit at forty-six, at the moment, he felt he was a dwarf in the imposing, marble-columned courtroom.

Sam Truitt still had not recovered from the confirmation process. Looking back now, the stinging vitriol of the personal attacks had caught him by surprise. On CNN and before the Senate Judiciary Committee, the Republicans hauled out their hatchet men, and the sound bites dug deep wounds. He remembered his discomfort at being grilled by Senator Thornton Blair of South Carolina, mouthpiece for the right-wing Family Values Foundation.

“So if ah git this right, Per-fessor Truitt,” Blair droned, waving a fistful of Truitt’s Harvard Law Review articles on civil liberties, “you’d hire gay teachers but ban the Bible in our schools. You’d give away condoms to our innocent children and take away guns from our law-abiding citizens. You’d have federal marshals protect baby-killing abortionists but leave the public defenseless against rapists and murderers. Does that about sum it up, Per-fessor?”

“That’s a fallacious representation of my views,” Truitt said, sweating under the lights, sounding uptight and uncool, even to himself.

“Fal-la-cious, is it?” the senator asked rhetorically, making the word sound obscene. “When’s the last time you attended church, Per-fessor?”

“I don’t see the relevance of that,” Truitt said, backpedaling, trying to keep his feet on a rolling log in a treacherous river.

“Didn’t think you would,” Blair said, turning to the committee chairman. “With lawyers as thick as fleas on an old hound, you’d think the president could find one that reads the Good Book on Sunday mornings.”

The hate mail delivered to his Cambridge office had shocked Truitt. Protesters spewed invective and picketed in Harvard Square, calling him a card-carrying ACLU leftist and a pornography worshiper who cared more about spotted owls and snail darters than jobs and families.

Despite the uproar, the Senate had confirmed him, and if the 53-47 vote was not exactly a resounding vote of confidence, it should no longer matter. He was appointed for life, or more precisely, in the words of the Constitution, during “good Behaviour.”

With a capital B.

Sam Truitt intended to lead an exemplary life on the Court. He would do nothing to attract the attention of the Family Values Foundation, which had begun a “Truitt Watch,” promising an impeachment petition at his first lapse. He had a single blemish in his past “Behaviour,” one that attracted the attention of the FBI when he was on the president’s short list for the nomination. Ten years earlier, a law student named Tracey had filed a sexual harassment claim against him after he slept with her, but nonetheless gave her a C in constitutional law. He had remained true to his academic virtue-if not his marital vows-but Tracey believed he had not held up his end of the unstated bargain.

In truth, she had seduced him, but still, he had violated university rules. Stupid.

With a capital S.

In case he didn’t know just how stupid, his wife, Connie, had fixed him with that icy, New England smile and said, “Next time you screw a student, Sam, spare me the humiliation and give her an A.”

Before the misconduct claim could be heard, Tracey dropped out of law school, sparing him an ethical dilemma. Would he have told the truth?

Sure I screwed her, but she wanted it.

Oh, brilliant. Just brilliant. Want some more, Dean? The Veritas , the whole Veritas, and nothing but the Veritas.

While I was grading her paper on the legality of strip searches at border patrol stations, she came into my office and pulled up her skirt. “Want to pat me down, Officer?” She was young and willing and hot, and God help me, I’m just a man.

With a small m.

Or would he have lied?

I never touched her. She is obviously a deeply troubled young woman with an overactive imagination.

That would have violated his principles, but thankfully, he never had to confront the question. Ironic, he thought how his personal life did not live up to his professional standards.

Now, he had taken a vow of monogamy, which in his marriage was akin to a vow of chastity. When he told this to Connie, she laughed and said, “Don’t forget poverty. You’ve taken that vow, too, and dragged me with you.”

Poverty to Connie meaning the inability to afford a summer home in the Hamptons.

But he was serious about living a blameless life. No scandals in or out of Court. No ammunition for the Foundation’s muskets. He wanted a long, productive career, writing cogent opinions that would live forever in our jurisprudence. He wanted to join the thirty-year club with Marshall Story, Holmes, Black, Douglas, and Brennan.

I’ll drive my enemies crazy and then out-live them.

But that morning, Truitt was worried about getting through his first day, not his first decade on the Court. He felt as if he had sneaked into the ornate building. Just after dawn, he’d come up the steps and paused before the giant six-ton bronze doors. Even earlier, he’d sat on a bench on the oval plaza, the Capitol glowing behind him in the rosy early morning light. At the base of the flagpoles, he’d noted the scales of justice, the sword and book, the mask and torch, the pen and mace. He’d gazed up at the two marble figures flanking the steps, seated as if on thrones, Justice on one side, Authority on the other. Above him, sixteen huge marble columns supported a towering pediment with a sculpture of an enthroned Liberty guarded by other symbolic figures. Atop it all was engraved the lofty phrase, EQUAL JUSTICE UNDER LAW.

In a place where the figures were carved from marble, he had feet of clay.

It was a building to be entered triumphantly on the back of an elephant, following a cavalcade of golden trumpets and shimmering banners. Instead, he felt like a thief in the night.

And now, Samuel Adams Truitt-at least the name sounded like he belonged here-sat in Holmes’s chair at the wing-shaped bench of gleaming Honduran mahogany, looking toward the heavens, or at least toward the four-story-high coffered ceiling, when he heard the voice of God.

“Justice Truitt!” the voice boomed.

Chief Justice Clifford P. Whittington both sounded and looked like God, if you pictured the Creator as a sixty-seven-year-old Iowan with a barrel chest, a rugged profile that, like the statues, could be carved from marble, and long, wavy white hair swept back and curling up at the neck.

Startled, Truitt swiveled toward the front of the courtroom. “Chief,” he answered.

The chief justice strode toward the bench. He looked vigorous enough to vault the bronze railing that separated the public section from the lawyers’ gallery.

“Getting a little head start on the rest of us?” the C.J. bellowed, his deep voice resounding in the cavernous chamber. “Or just walking the field before the game?”

The game.

The sole point of common ground between the two men, Truitt thought, was that they both had played football in college. Whittington had been a lineman at Yale in the days before face masks-though some liberal academics claimed he played too long without a helmet-then went to Oxford as a Rhodes scholar. He was a Renaissance man, a throwback, a midwestern farm boy who beat the eastern intellectuals on their turf at their game. He liked to think of himself as a common-sense judge with traditional values. Truitt considered him rigid, small-minded, and mired in the past.

Truitt also knew that the chief had huddled with Senator Blair, feeding him damaging questions for the Judiciary Committee hearings. If there was one man in America that Whittington did not want on the Court, it was the glamour boy from Harvard who appeared on even more news shows than the biggest publicity slut on the Court, Whittington himself.

“It’s customary for the chief justice to chat privately with a new member of the brethren,” Whittington said, somewhat ceremoniously. By this time, Truitt was making his way down from the bench. It didn’t seem proper to have the chief looking up at him.

“Can we still call ourselves brethren when we have two women on the bench?” Truitt asked with a smile.

“I don’t know,” the chief replied with a malicious grin. “I hear you’re the expert on sexual harassment, Professor.”

Touche.

“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 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.

Discussion

First, Atlantica correctly notes that the federal government exclusively regulates matters of air safety and flight operations. This federal regulatory scheme was enacted to ensure the safety of all passengers by centralizing rule-making authority and promulgating uniform federal airline regulations. Atlantica further points out that the 1978 Airline Deregulation Act includes a preemption provision “prohibiting the States from enforcing any law ‘relating to rates, routes, or services’ of any air carrier.” Morales v. Trans World Airlines, Inc., 504 U.S. 374 (1992) (finding that this clause preempted state consumer protection law restricting the advertising of airline fares). Atlantica contends that this action involves questions of airline “services,” which are controlled by the federal law and therefore are outside the scope of state law. The Court agrees. Because federal law does not provide a private cause of action, Plaintiffs have no remedy. Although this result may seem harsh, this Court has no authority to create such a cause of action; it is a matter for Congress to consider and address.

Moreover, Plaintiffs’ claims against the Airline fail for the additional reason that they have not presented any evidence of negligence. While not conclusive, the evidence of record is that the crash of Flight 640 appears to have been caused by an explosive device planted by unknown third parties. There has been no showing of any error of commission or omission on the part of Atlantica that contributed to the planting of such a bomb. It is Plaintiffs’ burden to demonstrate such evidence.

Because Plaintiffs have failed to demonstrate a genuine issue of fact as to the essential element of negligence, their claim fails on this ground as well.

WHEREFORE, the Court grants Atlantica’s motion for summary judgment as to all claims raised in the complaint.

Norman T. Schenkel, Judge