Americans are watching in horror as an enormous oil slick is moving across the Gulf of Mexico toward the coastlines of several states. This calamity has already cost 11 lives and promises to devastate the fragile and complex Gulf environment and countless human lives and livelihoods. Our hearts go out to the victims and their families and to a region still reeling from Katrina.
But slithering toward the Gulf Coast, along with the oil mess, is the prospect of a legal mess, as those harmed by this catastrophic event eventually seek recompense for what undoubtedly will be profound, life-altering consequences.
Many commentators are already worried the Deepwater Horizon spill will be worse than the Exxon Valdez incident in 1989. They're mostly referring to the environmental and economic impacts, of course, but thanks to the current Supreme Court, the legal impacts may well be worse, as well.
As Alliance for Justice's brand-new report, "Unprecedented Injustice: The Political Agenda of the Roberts Court," demonstrates, the current legal environment now strongly favors powerful corporate interests at the expense of ordinary Americans. In fact, one of this Court's most egregious cases involved that very Exxon Valdez incident, leaving many of us profoundly concerned that when the inevitable British Petroleum spill cases are litigated, the victims of this environmental crime will find themselves at a serious disadvantage.
Exxon Shipping Co. v. Baker, is a classic tale of justice both delayed and denied, abetted by the pro-big-business faction on this Court. In the Exxon case, after 19 years of litigation, approximately 32,000 commercial fishermen, Native Alaskans, and property owners were awarded compensatory damages of around $500 million, or roughly $15,000 per plaintiff - not much if your entire life and livelihood have been wrecked. But the jury also awarded $5 billion in punitive damages. Not surprisingly, Exxon appealed.
Along the way, the Ninth Circuit Court of Appeals reduced the original $5 billion award to $2.5 billion, but that wasn't far enough for this Supreme Court. In a 5-3 decision (with Justice Alito recused), a new rule for maritime law was invented on the spot: punitive damages cannot exceed compensatory damages. The original $5 billion award was cut in 2008 to $500 million, the same as the compensatory award. After 19 years of obstruction and delay, the Court willfully substituted its judgment for that of a jury and gave Exxon a $2 billion gift. The people actually harmed by the actions of Exxon? Not so much.
What's startling about this decision, other than the outrageous and palpable unfairness of it, is the Roberts Court's willingness (should we say eagerness?) to take it upon itself to do what legislatures are supposed to do. In this case, determine what kind of caps, if any, should be applied to punitive damage awards in maritime law or in any other setting, for that matter. We will probably, and unfortunately, see the impacts of the Exxon ruling ripple through the current crisis.
Our report shows, in case after case, including this one, that this conservative Court is ready to substitute its judgment for that of legislatures whenever corporate power is threatened or big-business interests are at stake. This is one of the main reasons why the upcoming appointment to the Supreme Court is so important. The next justice must be ready, willing and able to lend a strong and persuasive voice on behalf of people like the fishermen, boat operators, coastal property owners, and other ordinary Americans along the Gulf Coast, and help counter the Roberts Court's determined efforts to tilt the scale of justice in favor of the powerful.