This very well may be an indicator of the case’s outcome, which will be decided in a few months. But the Journal’s own Law Blog, in summarizing the print piece, includes an expert suggesting the verdict could go any way:
We caught up with University of Texas law professor Michael Sturley, who was there (and also helped Exxon-Mobil prepare its brief) . Sturley wouldn’t hazard a guess as to where the chips will fall. They could uphold the damages or say no punitives at all are permissible. In between, they could remand it with more specific guidelines. None of these outcomes would really surprise me.
While we’re not saying the Journal is wrong, we don’t think it captured the oral arguments as well as it should have. We fault the Journal’s piece (and Slate’s below) for not reporting that Justice Samuel Alito is sitting out this case because he owns Exxon stock (an aside: Why would it be acceptable for a Supreme Court justice to own shares in the biggest corporation in the world? Doesn’t it seem likely that he’ll have lots of conflicts there? Buy some bonds or put your money in a blind trust, dude. Here’s the WSJ’s Law Blog again).
Dahlia Lithwick’s piece in Slate illustrates the promise of Internet-era journalism. Unrestrained by column-inch limits, she gives us needed details from the courthouse steps on how many of the plaintiff class has died (20 percent), and includes her own moral perspective. It’s a well-written piece of journalism that puts us in the courtroom for the blow-by-blow of the oral arguments, but doesn’t get lost in the punch count.
Lithwick reports the lively back-and-forth between justices and lawyers, in which two primary issues come up: Should Exxon have to pay punitive damages, and if so should they be capped somehow?
Citing an admiralty case from 1818 called, delightfully, the Amiable Nancy, (Exxon’s attorney) claims that to uphold the judgment against Exxon would be to disrupt maritime law that’s been ‘settled for almost 200 years.’
Justice Ruth Bader Ginsburg quickly challenges him on the claim that a 200-year-old case, followed by loads of constitutional radio silence, represents “long-settled law.” To which Dellinger replies that the law was “so settled” the issue “didn’t come up.”
We like Slate’s piece because it gives us a nice sense of intellectual exchange, but also because it departs from straight legal reporting to address what ought to be obvious but may not be after nineteen years: this verdict is not a legal abstraction.
Even if Exxon pays out the full amount, the $75,000 or so each class member will collect won’t be enough to rebuild the dying town and businesses the Valdez spill has left behind. Which further contributes to the sense that Exxon should pay simply because it can afford to. Of course, that’s not the issue here, but then, when you’re surrounded by grizzled men in faded rugby shirts in the gallery of the Supreme Court, the niceties of vicarious liability fall away, which is precisely what [the plaintiffs’ attorney Jeffrey] Fisher set out to prove. In an unusually visceral way today, you can’t quite shake the contrast between the high-flying corporate world of big oil and the rusting old fishing boats in Cordova, Alaska. Oil and water still don’t mix. Even 19 years later.
Relatively chronological writing that quotes a variety of justices proved the best way to convey information in these cases. This particular legal ceremony gives reporters an excellent opportunity to make the Supreme Court human—to convey to readers how justices speak and how their arguments play off both one another and the lawyers who stand before them. The guesswork of how the court will decide has a place in this kind of reporting, but we prefer description to prediction, and we like lots of context so that we can connect legal language to, well, reality.
We grant that all of this is hard to do in a daily news story—but it’s not impossible. And as the newspaper is unmoored from its physical bonds, following Slate’s example here will work better than the Journal’s, while the Times’ approach is ageless.