Supreme Smoke

Chapter 1.

Maybe it was a good sign that when the jury foreman came back into the courtroom to announce that the jury had reached a verdict, he was noticeably emitting a smoker’s cough — the kind of cough that you don’t get from a cold or bad allergies or the fading ozone.

This was the kind of cough that started in the sternum and worked its way up the diaphragm, until guttural, almost monstrous noises came out of an opening, past yellow-stained teeth and equally stained fingers on a hand meant to suppress it. At that point, Thomas Darling, Ruth Burke’s attorney, knew that something good was about to happen. In his head he went over how big the award might be. He had asked for $100 million, of which he would take 40%, not bad, even for six years of work.

Hell, he thought, even 40% of $10 million would do more than just cover his expenses. It would mean financial freedom, finally. No more ambulance cases. No more having to explain to his family that plaintiffs’ work had a useful social purpose. From now on he could just say that plaintiffs’ work had bought the boat you were just on, and the car you drive, Dad, so screw you all.

The cough was a little worse now. It took a while for the old federal court judge to get himself situated in his leather seat. Bastard, Ruth Burke thought to herself. When she was on the stand, the judge had allowed the tobacco lawyers to lay into her, overruling each of her attorney’s objections about the scope of the questions. Isn’t it true, Mrs. Burke, that your husband had a drinking problem, and once missed work for three days because of a hangover? You were estranged from your husband for six years and only recently moved back in with him, isn’t that true? Is it fair to conclude that you settled your differences after learning that he had sued deep-pocket tobacco companies for millions?

No, Ruth had tried to answer, I moved back when he got really sick; I felt bad for him and wanted to help him. But she never got the chance; the judge told her only to answer the questions asked, and that’s just like judges, and lawyers, she thought - bastards all.

Ah-hem, said the old, craggy-faced, white-haired man as he cleared his throat. We’re here in civil action case number 09-CV-1093 because the jury has informed me that it has reached a verdict in this case. I will ask the jury foreperson to rise and to read the jury’s verdict, at which time I will expect the entire courtroom to remain respectful and silent. I will not tolerate any disruption. That goes for the press and the media-types, too. The marshals are instructed to block exit from this courtroom until the court is again in recess; there will be no mad rush from the courtroom. Is that clear?

Ruth barely heard any of these words, and her attorney had already begun to study the faces on the jury, longingly searching for any sign, hopefully one that would tell him to breathe, let go, your ship has come in, it’s your turn now, all you, all you, babe. Six faces looking straight ahead, indiscernible, occasionally glancing at the ceiling as if counting the tiles, taking deep breaths of air, long sighs. Four of them men, two women. During jury selection, Ruth had learned a great deal about them; they were grilled about as long as she was. The joys of their lives, the human tragedies along the way, things that would prevent them from reporting to court every morning sharply at 9 a.m. One had lost her entire family on the Dan Ryan expressway because a drunk driver had not seen her husband’s car stalled before plowing into him with a Range Rover. Another never married, no children. Which fate better, Ruth had thought to herself at the time. To have a family only to lose it that way, or to never have one at all?

"And so I’ll begin by asking the jury foreperson for a verdict. After that time the lawyers for Icarus Tobacco and Ms. Burke will each have an opportunity to poll the jury, that is, ask the jury members individually if that was indeed their verdict. Mr. Foreperson, has the jury reached a verdict in this case, Burke v. Icarus Tobacco et. al?"

We have, your honor, managed the foreperson in between hacks. He hadn’t told anyone during jury selection that he smoked, but that was obvious now. Grounds for an appeal? Ruth wondered.

Then what say you? asked the judge.

"In the case of Burke v. Icarus Tobacco, we find for the plaintiff, Ruth Burke, against the defendant, Icarus Tobacco. We find that the defendant did knowingly and intentionally conceal information establishing the causal connection between tobacco ingestion and cancer, and further that the individual defendants, executives of Icarus, personally acted in this regard. We further find that Icarus engages in the manufacture of an unreasonably dangerous and defective product, that is, tobacco, and that they are therefore liable for the effects of that product, in this case, cancer and the resulting death of Mr. Clarence Burke, on whose behalf the estate and Mrs. Burke have brought suit."

Amid the shouts and the strains greeting the verdict, Ruth Burke sat impassionedly at her counsel’s table, thinking only of Clarence and the fact that they had reconciled long before she had moved back in with him. What might have been, she thought. It is true they had an unsteady marriage, but his cancer had hurried the end of his life, preventing any new beginnings for the two of them. They could patch things up between them but they couldn’t outrace time, and cancer spread exponentially through tissue. It gripped hold of you one day, rarely let go, and then a clock appeared over your shoulder for the rest of your life. Like a count-down clock to New Years’ Eve, it announced how much time was remaining, only sometimes it would skip a few hours, days, to readjust itself and cheat you.

After the craggy old judge had quieted down his courtroom, he continued. And on the issue of liability, has the jury reached a verdict?

We have, your honor. We find the defendant Icarus tobacco liable to the plaintiff in the amount of $1 million for compensatory damages, and an additional $99 million for punitive damages.

Darling remained seated. He closed his eyes. For a lawyer with little experience and hardly much of a track record, the verdict was a validation. Payday. Acceptance. Respect. But the foreperson apparently was not done. Darling had forgotten the novel request he had made to the jury on the issue of liability. It had never been done before, and to his knowledge no one had ever even suggested it. He knew that in most cases individual officers in corporations could not be personally liable for the harmful things their companies did, but in this case, there was so much bad faith involved that he thought the Icarus executives should personally pay.

The damages, continued the foreperson and startling even the judge by doing so, are apportioned evenly among Icarus and the three individual defendants.

My god, uttered Darling loud enough for Burke to hear over the courtroom eruption, even louder this time than before. What does it mean? asked his client. Tom, what does it mean?

Jesus, Ruth. It means we woke up the bear. Jesus.

Chapter 2.

Lyndon Clarke stared out of the grand oval windows, stained glass, in the Supreme Court conference room, a sacred place regularly swept by the FBI for surveillance devices. What happened behind the doors to the conference room was so secret that not even the nine justices’ law clerks could attend, nor the justices’ families. In that room there was no pretense; they were what they were, biased like anyone else, some old and technically unfit to even drive a car, but justices all, and life-appointed to boot. It meant they held their jobs, or commissions, as they called them, on good behavior for life. It would take Congress impeaching them to get them removed from their offices.

It was the rain outside that concerned Lyndon at the moment. His wife was on her way that afternoon to her doctor’s office to check on violent pains she had been experiencing in her upper back, and Lyndon was worried that she would be too distracted to drive safely under the conditions. Back pain was not the most serious health problem in the world, but Lyndon knew that in women of his wife’s age it was often accompanied by more pressing trouble, such as an ailing heart. As the rain splattered against the windows, Lyndon wondered if he should have taken time today to drive Marilyn himself. But with late September upon the court, there was little time off as he prepared for the new court term. The justices had set a goal to hear argument in about 100 cases this year, and they had convened again that afternoon to discuss a few remaining cases that would fill out that number.

Slowly, one by one, the nine justices filed into the conference room and made the kind of nervous small talk that fills the time and little else. Hello, Bar, Justice Henry Goolsby greeted Barbara Driscoll with. I hear this is the time to plant those geraniums if you want them to come up next spring — then adding if not retreating a bit so as to avoid offending her — but I’m sure you know all about that; a lot more than I do, I’m sure. Oh, Justice Driscoll replied, I stopped doing geraniums after my mother died. There were so many at her funeral that I just couldn’t break the connection in my head! Geraniums and death, death and geraniums, she laughed — the type of high-pitched cackle that was her trademark, and it caused Justice Clarke to wince a bit as he shifted from the window to his seat at the table.

Well, began the Chief Justice at the table’s head, we’d better get started. I imagine we’ll all have a few things to say today on at least one of these cases. The Chief Justice, Alfonso Guerrero, was Harvard-educated and the first Hispanic man on the Supreme Court. Hispanic, liberal, and qualified — and largely liked by those who knew him — and all of these things, principally the first, made him untouchable in the hearings. Not a senator even tried to lay a glove on him, and he coasted to confirmation. After his testimony before the Senate finished, he was embraced by what everyone assumed was his wife, but who turned out to be a woman he had met only weeks earlier and whose name no one knew.

Guerrero got the nomination to the court only after another prominent Hispanic, Roberto Salazar, a judge on the prestigious court of appeals in Washington, D.C., angered the president by repudiating affirmative action efforts in a speech at Notre Dame Law School. He had not benefited from affirmative action, Salazar reasoned, but he had suffered because many thought he had. The thing to do was to eliminate the excuse others had used to explain his success; if done, the only remaining explanation would be merit. It was not an unreasonable suggestion, but it was enough for some to question the strength of his liberal beliefs, and enough to keep him off the high Court.

If there’s no objection, Guerrero continued, "we’ll begin by considering the case from the Chicago court of appeals, Icarus v. Burke. My law clerk tells me it’s a ‘two-dayer,’" he joked, referring to the time (long gone) when the Supreme Court continued an oral argument over days if it was necessary to fully study the case. Nowadays there were strict time limits on oral argument before the court — each side had 30 minutes to state their case and be grilled by the nine justices, and the time limit was rigidly enforced by the Chief.

I have several concerns about this case, opened Justice Ann Hughes, the court’s second female justice, appointed nearly twenty years ago by a conservative president. "I’m worried about the district court’s decision allowing the jury to determine what constitutes ‘inherently dangerous,’ as if that were a question of fact rather than one of law. We all know that it’s a question of law and not subject to the jury process—

That’s true under the common law, Anne, interrupted Justice Goolsby, but it’s properly considered more a mixed question of law and fact and we’ve never decided in this context whether that should be a jury question or not.

I understand that, Henry, replied Justice Hughes, a touch perturbed that she was able to get through so little before being interrupted. I’m worried about the district court’s decision on the ‘inherently dangerous’ issue, but to me that’s not the most troubling issue in this case. That tag would have to be reserved for the decision of the jury — approved by the district court and then again by the court of appeals in Chicago — that the individual officers of Icarus should be personally on the hook for the $100 million in damages, or at least a substantial portion of it. This seems like a curious application of our corporation laws, which allow individuals protection from personal liability from the harmful, even unlawful, acts of their corporate employers.

I would agree with you Anne, chimed Justice Driscoll, "if not for the fact that we have allowed corporate protection, or the corporate veil if you will, to be pierced in cases where officers have willfully violated the law. In this case we can say that they violated the public trust so what’s the difference? The result is just as serious and individual liability would result."

Lyndon was unusually silent. The moderate, independent voice on a court that had become increasingly strident and severe over the years, he knew the importance of the case but could not turn his attention much away from Marilyn. If it were the heart, then he would leave the court and devote his time to her. All the time wasted, he thought, five kids raised but so little time just for the two of them. And he resented it. He resented the sense of obligation and duty which forced him to devote so much time to his children, and so little to her. Or was it his job that forced him away from her? Either way, he thought, Marilyn should not be driving alone today. What kind of husband sends his wife off to the doctor alone for a potentially life-threatening problem? A man who’s lost perspective, he feared, looking around him at the chattering, swollen faces and resenting them a bit now, too.

Lyndon’s last thought was interrupted by the swoosh of the conference door opening; it opened so suddenly that it created a brush of wind that unsettled the Justices’ papers spread out on the boardroom table. Of course, Lyndon thought, here comes Victoria, and with perfect timing and her characteristic flair, in whisked Justice Victoria Lightfoot, a breath of fresh air on the court for years even if she did bring with her some occasional turbulence. Hurricane Victoria, Henry Goolsby liked to call her behind her back, a name which Lyndon loved to chuckle at but would never do so in front of Lightfoot.

"I am soo sorry, friends, Justice Lightfoot announced, fumbling her way to her seat, shopping bags in tow and assorted papers, too. Since Little Katy started school this week at Maritime, my life has just turned upside down. I wonder if there is any way we could schedule our get-togethers a little later in the day this term," she mused more to herself than the others.

Later than 2:30 in the afternoon? Henry cracked. Victoria did not respond.

Victoria Lightfoot had been on the Supreme Court ever since the Democrats took over the White House about nine years ago. She was one of the new president’s first appointees, with impeccable liberal qualifications. After attending law school at New York University, she worked for several years in Chicago with the Americans for Civil Liberties Union, and from there became an elected state court judge in Cook County, the largest county in the country where judges are still elected by the people rather than appointed by the governor. In fact, of all the judges on the Supreme Court, there was little question that Victoria Lightfoot had the most experience as an actual judge, but that was a distinction meaning little to her colleagues, probably because many of them saw their endeavor as strictly an intellectual one, not one favoring the memorization of the Federal Rules of Civil Procedure.

Nevertheless, Victoria’s record as a Judge in Chicago, first as a trial judge and then later on the Illinois Supreme Court (also elected), made her an easy choice for a democratic president who needed to pay back his liberal constituents after his election. Her only snag came in the confirmation hearings before the Senate in a response to a question posed by Senator Dingle from New York. When asked in a rather rhetorical way why she left New York for Chicago, she replied that she absolutely loved New York and missed all of the good deals her Jewish friends used to get her on jewelry in SoHo and the Village, meaning Greenwich Village. Some interpreted her remark as a stereotype against Jews, even anti-semitic, but Lightfoot innocently explained later outside the Senate hearing room that she simply was a lover of jewelry. Then she told everyone to get a life. Her comment endeared her to conservatives who saw her as a harmless lady, though exceedingly liberal, who did not suffer fools gladly. The Wall Street Journal published a column entitled Lighthearted Lightfoot, which suggested that the stuffy Supreme Court would benefit from her influence.

Maybe Victoria has an opinion on the matter, announced Chief Justice Guerrero, who would have been an obvious friend to liberal Justice Lightfoot if not for the fact that everyone was absolutely convinced he had a large cylindrical object up his ass.

I’m sure you’re talking about the tobacco case, replied Justice Lightfoot, adding that she was sure it was a case the Supreme Court should pick up for the new term. I think we should definitely grant cert — short for granting certiorari, meaning the Supreme Court would agree to hear argument on the case — and afterwards, she added, "we should all go out for a smoke on the steps of the Court building. I was thinking about it all morning, what a wonderful picture that would make in the papers, all nine of us, puffing away, with a caption under it — something along the lines of ‘Supreme Court tobacco case goes up in smoke.’ Wouldn’t that be a hoot! Victoria shrieked.

Justices Hughes and Goolsby laughed. It was even enough of a jolt to distract Lyndon from thinking about his wife. He laughed, too. But the Chief bristled at the frivolity. He readjusted himself on his seat and gave a rather pained expression to the group, as if the object in his hind-quarters had been twisted a touch in an uncomfortable way.

Great, announced Justice Gillay, yet to be heard from. And since most psychologists agree that there’s a sexual component to smoking, we’d be showing we’re not a bunch of prudes. The others just stared at him for a moment, the kind of look you give a kid who doesn’t know when to stop but goes on with a joke a bit too far. It was okay for Victoria, or Vickie as some called her, to make one of her characteristic cracks, but it didn’t seem right when Adam Gillay jumped in. He was not naturally funny, nor eccentric; in all events, it didn’t work, and such was the typical fate of Adam’s attempts at humor. He just didn’t have the touch that Victoria or even Barbara had, and truth be told for the life of him he didn’t understand why. After all, he considered himself to be quite funny.

Really, Adam, said Victoria to her dear friend, half-feigning displeasure at his bringing up sex in the hallowed halls of the Supreme Court building.

Never mind, offered Adam. Justice Gillay, also a liberal, was elevated to the Supreme Court just four years earlier from the Ninth Circuit Court of Appeals in San Francisco, California. He had attended Stanford Law School and ranked number one in his class, and could turn a phrase like no one else, or like no one’s business, as Justice Lightfoot liked to say to her law clerks. Give this to Adam to clean up, was one of her usual refrains, referring to a draft of an opinion she and her clerks had produced, it needs something but I don’t know what.

And the case, Adam? the Chief asked, trying very hard to keep the group on subject.

I agree with Victoria, if I got her tone. It’s not really a case worthy of cert. The jury system should be respected to the extent that it results in the imposition of what basically is a fine on corporate officers. The SEC fines them all of the time; why can’t juries?

We should take the case because juries are not the SEC, responded Henry Goolsby. You can’t go after corporate officers for the bad things their company does. It turns corporate law on its head.

Maybe, replied Adam, but this is uncharted territory for us. Barbara is right that there’s room for personal liability under the right circumstances.

The word that rang in Lyndon Lyndon’s ears was circumstances. It reminded him of what the doctor had said — circumstances dictated that Marilyn come in for more tests today. What the hell did that mean, Lyndon had thought to himself at the time.

You’re awfully quiet today, Barbara Driscoll whispered to her neighbor at the table.

It’s Marilyn, Bar, Lyndon replied to his old friend on the court. They had taken their seats on the court only nine months apart some twenty-five years ago, and though Lyndon often broke ranks with the liberal wing of the court, as it was called, Barbara admired his independence.

They’re doing tests on her back today. Just can’t figure out what’s causing all the pain.

Bar reached out and put her hand on Lyndon’s, which at the moment was digging into the arm of his soft, burgundy leather conference chair. For the time being their hands stayed that way, and Barbara forgave herself for getting lost in the moment for a bit. The first time she met Lyndon he was unmarried, as she was at the time and remained, and he could not have been more welcoming and gracious to her, the first female justice on an all-male court. She even remembered his first, gentlemanly words to her, Welcome, Justice Barbara Driscoll; it’s about time. Yes, she agreed, it was about time, but Lyndon was the first person who looked like he actually believed it. Twenty-five years later, her pioneer status was often forgotten, as she was joined at the table by Anne Hughes and Victoria Lightfoot, and Aurora Sims.

Oh, yes, Aurora Sims, Barbara thought to herself. How could she forget her? At the moment, Barbara noticed, Aurora was seated in her usual position, next to old Justice Shelby, the most senior member of the court. Justice Marshall Shelby had served on the court for nearly four decades, and he was usually the first to remind you of that fact. Appointed to be a liberal member of the court by a liberal president, the times and age had slowly hardened him, until now he stood — or more accurately, sat — as the most reliable conservative vote on the Court. Over the last few years alone, Justice Shelby had voted to overturn Roe v. Wade, preserve the all-male military academies, and declare California’s affirmative action programs to be blatantly unlawful and unconstitutional.

But Barbara liked Marshall. She was not as old as he was — he was 82 — yet she was not that far off, either. It was never his mind — wholly brilliant even at that advanced age — that Barbara questioned, but rather his anger. Justice Shelby had a reservoir of anger inside him that often startled the other justices, and it came out in his writing more and more as the years passed. Today this Court turns its back, he once wrote in the case allowing women into the previously all-male military academies, on centuries of Judeo-Christian tradition, on the blood of those forefathers who fought for that tradition, and on the people’s right to see that tradition unsullied by the political whims of the Court’s majority. They counsel the rest of us to step aside for change, for change is undeniable, he continued. Let us hope they live long enough to see the winds of politics shift, as they by nature and force must do, against them just as clearly as they seem for them today. Live by those winds and eventually they will turn you to dust.

At the moment Barbara noticed that Aurora was listening intently to Henry Goolsby and Ann Hughes debate the wisdom of granting cert in the tobacco case, and she wondered whether Aurora’s typical reticence was a product of her confirmation hearings. Try as she might, she could not shake the public’s impression that at the age of 39, she had been nominated to the Supreme Court because a democratic president had pledged to appoint an African-American to the court during his re-election campaign. Aurora was not just black, but a woman, so the conventional wisdom — despite her Harvard Law pedigree — was that these attributes had as much to do with her elevation to the Court as anything else. It was a terribly unfair situation, Barbara thought back, exacerbated by the unfortunate tone of the hearings. Before one knew it, Aurora and Marshall were inseparable on the Court and in its opinions. Nominate a liberal and presto, you get a conservative for the next forty years. Maybe that’s why the Chief speaks to her so discourteously at times, Barbara thought.

Barbara? Justice Goolsby asked, interrupting her train of thought, focused at the end of the table. Let’s take the case and see where it goes. At least let’s schedule it for argument; we’re just never going to be able to sift through the personal liability issue without even seeing the briefs or hearing the argument.

Ordinarily Justice Goolsby was not nearly so reasonable, Barbara thought, but she knew why. While it took five votes to form a majority opinion on the Court — assuming that the other four went the other way — it only took four votes to decide to take a case and schedule it for argument. When lawyers find out their case is going to the Supreme Court, they know that at least four Justices voted to hear it. Of course, they don’t know what that means. Sometimes the Justices want to hear the case to overturn it, in which case the lawyers who won at the level of the court of appeals ultimately lose. Sometimes the Justices simply want to settle a difference that has developed between the lower courts — the courts of appeals. And sometimes they want to fill out their docket.

But in this case, Barbara knew that Henry wanted to dig his teeth into the personal liability issue and reverse it. And while he reasonably could count Anne Hughes toward the four votes he needed, he couldn’t be sure about Marshall, who sometimes voted against cert to lighten his load and free up his calendar. That would be disastrous for Henry, Barbara knew, because for all practical purposes losing Marshall meant losing Aurora.

Oh, Henry, replied Bar. We’re not getting any younger. If we take all the cases now we’re not going to leave any for Aurora and her colleagues, and that just wouldn’t be fair, laughed Barbara. She liked to tease Aurora about her age at times, and she had the flair to get away with it, though Aurora rarely showed much emotion. More often than not, she simply gave a pleasing smile to a remark like Barbara’s, and it was too bad that didn’t happen more often, as her smile changed her entire sculptured face and stretched it upwards and sideways a bit, highlighting her cheekbones and her perfectly symmetrical eyes. You have beautiful eyes, Senator Dingill had told her during the confirmation hearings, a comment that did not help her cause to be taken seriously. Thank you, Senator, she replied without so much as a pause, as if she actually had expected someone to comment on them.

Let’s take the vote, announced the Chief. It’s getting late, and I think it’s time.

Of all the customs and traditions of the Supreme Court, none is more sacred than the vote, usually taken in order of seniority, except in the case of the Chief, who votes first but is not always the most senior member of the Court. Each Justice is allowed to announce both the vote and his or her reasoning, though only the vote is required.

I have to go, abruptly announced Lyndon, releasing his hand from Barbara Driscoll’s grip. I’m sorry — it’s — it’s Marilyn.

Of course, replied the Chief. Do you want to vote before you go? — a break from the rules of order and considerate, thought Lyndon. I can’t. It’s — I’m not up to speed on it. I have to go. And with that Lyndon pushed back his chair and headed to the door, making eye contact with no one.

I vote against granting cert, announced the Chief. Marshall?

In my 38 years on the Court, I’ve never seen a jury verdict that set a more dangerous and pernicious precedent, Justice Shelby trumpeted. It’s our job to fix it, and fix it we shall.

Barbara? asked the Chief.

The jury system should be protected even if we don’t like a verdict or two along the way. It’s our system and we’re stuck with it, for better or for worse. I vote against taking the case.

Henry?

I vote to take the case. It sets a dangerous precedent, especially on the individual liability issue.

Anne?

The vote is to take the case as expressed by Henry.

Victoria?

Lyndon and I vote no, she joked, knowing full well she could not carry another Justice’s proxy. Barbara stared across the table at her, displeased.

Adam? continued the Chief.

The jury’s decision should stand without our intermeddling. I vote against taking the case.

Then it’s down to you, Aurora. Four votes are needed to take the case; at this point there are three. So I guess you get to decide.

I vote to grant cert, she announced without explanation, only glancing at Marshall for a second. Marshall leaned back in his chair, seemingly satisfied with the vote.

We’re done here, declared the Chief. The clerk will inform the parties.

It’s going to be a circus, Victoria said on her way out.