In the predawn hours of March 3, 2009, Tonya Hatfield huddled outside the darkened home of the United States Supreme Court. A late-winter storm had fallen on Washington, D.C., dropping eight inches of snow on a city expecting cherry blossoms. Crews had shoveled snow from around the court, and Hatfield climbed the forty-four steps to the main entrance, where three others were already in line, hoping to attend the court’s morning session.
Forty-year-old Hatfield wore a heavy coat and leather gloves but nothing to protect her feet from the temperature, which hovered near zero. In her haste to drive north from her home in southern West Virginia before the snow made the roads impassable, she had forgotten her winter boots, and her toes went numb in her shoes.
Hatfield had traveled to Washington only once before, as an eleventh-grader with an exalted vision of American democracy. She was a coal miner’s daughter who had been raised to believe that when everything else failed, a courtroom was the one place where the poorest could find justice against the richest and the most powerful. That belief had driven Hatfield from her home in Gilbert, West Virginia (population 417), to study at the University of Kentucky College of Law. Degree in hand, she’d returned home to set up her law practice in Gilbert. For the most part, she handled small personal injury cases, real estate closings, lots of wills, and other legal issues.
Hatfield wanted to use the law to help those who needed help most and to bring them true justice. But every time one of her cases brushed against the powerful and the well placed, she saw that in Mingo County the coal companies so effectively controlled the political system that overwhelming injustice and corruption were inevitable. For the young lawyer, it was one futile fight after another, and Hatfield had been thinking of giving up the law. That was when she’d met Pittsburgh attorney Bruce E. Stanley, who became her co-counsel in a case involving the death of two miners in a mine run by the Massey Energy Company, the largest and most powerful coal company in Appalachia.
The West Virginia–born Stanley had so inspired Hatfield that she had not only kept her practice but, this morning, had driven 360 miles through a snowstorm to hear another of his cases involving Massey. It was Stanley’s first visit to the court, too, but as a counsel of record, he would breeze through the building’s mammoth doors. Hatfield, however, had not wanted to bother Stanley for a pass to the hearing, scheduled for 10:00 a.m. She would take her chances in line with the others.
As dawn arrived, Hatfield looked up at the Vermont-marble façade of the four-story court and saw the inscription “equal justice under law.” She could hardly believe that, if she were lucky enough to get in, she would watch the justices apply those words to her friend’s case. It could redefine judicial conduct not only in West Virginia’s often coal-beholden legal system but in every court in the land.
Two miles from the shivering Hatfield, Theodore B. Olson drove through the city’s empty streets. As his vehicle moved through the corridors of power, the sixty-eight-year-old lawyer sat in his thick wool coat reviewing yet again the case he would be arguing before the Supreme Court in a few hours.
Olson’s mane of chestnut hair had a Reaganesque fullness, without a spot of gray. His face was that of the common man writ large. To a jury, it would have proved seductive. This morning, however, it wouldn’t help him; the only jurors Olson would be facing were the court’s nine justices. Olson was a man of great public modesty, but he had the fierce ego of a lawyer who practiced the most unforgiving kind of law: at the Supreme Court, lawyers were given precisely a half hour to make their case. Olson, and his clients, lived and died in those few minutes.
Ted Olson not only ranked among the top six attorneys in Supreme Court appearances; he had won forty-three of those fifty-four cases. A lifelong conservative, he had etched his place in legal history in the aftermath of the disputed 2000 presidential election. The Berkeley Law graduate had argued before the Supreme Court on behalf of George W. Bush in Bush v. Gore. The decision seating Bush as president made Olson nationally prominent, lionized by Republicans and despised by Democrats. Bush rewarded Olson by naming him solicitor general, the government’s top lawyer, whereupon he won eight consecutive victories for the administration in the Supreme Court. If Olson had not been so disliked by Democrats, Bush would likely have nominated him to the Supreme Court.
On the morning of September 11, 2001, Olson’s wife, Barbara Olson, a lawyer and a prominent conservative commentator on Fox News, boarded American Airlines flight 77 from Washington’s Dulles Airport to Los Angeles. The plane had just taken off when Olson’s wife called him, saying that hijackers had commandeered the plane. A few minutes later the jet flew into the Pentagon, killing her and everyone else on board, as well as 125 on the ground there. To many who loathed Olson’s politics, her death made him seem vulnerably human, even a tragic figure.
Olson was now six months away from his sixty-ninth birthday. At many firms he would have become the hoary, revered senior partner, his picture displayed in the boardroom, his duties relegated to winning new business and placating unhappy clients. Yet he remained at the very center of the firm’s operations, and he often squared off against lawyers a quarter century or more his junior.
As he turned onto stately Connecticut Avenue, Olson kept thinking about what faced him this morning. The case Olson would be arguing today, Caperton v. Massey Coal Company, had been brought to him by two Pittsburgh attorneys, David Fawcett III and Bruce Stanley, who would be sitting next to him as he addressed the justices. Olson preferred cases of historic significance, and this one offered a potentially precedent-setting result. In the preceding eleven years, it had worked its way through two states and three courtrooms, including the Supreme Court of Appeals of West Virginia. It had devastated the life of the primary plaintiff and emboldened the ultimate defendant, the most powerful coal baron in the industry’s 130-year history in the region.
The plaintiff, Hugh Mason Caperton, was the operator of a small coal mine in southwestern Virginia. His business had been driven into bankruptcy by Donald Leon Blankenship, the chairman of Massey Energy, the fourth-largest coal company in America, which in 2008 had recorded coal revenues of $2 billion.
The Massey chairman was the unchallenged voice of the industry. There was no coal Blankenship did not covet. As his nearly six thousand workers and their machines chewed up the earth, producing some forty million tons of coal annually, he chewed up his competitors, buying up their bankrupt operations, picking up mines at fire-sale prices, busting the United Mine Workers, and opening scores of nonunion underground and surface mines. Over twenty-eight years at Massey, Blankenship had risen from office manager to autocrat, building the greatest realm of coal Appalachia had ever seen and controlling more than a third of the region’s remaining seams of the mineral. At Massey, he says, he “learned about, and struggled against, the ignorance and evilness of the United Mine Workers, much of the media, the ‘greeniacs,’ and much of corporate America.”
Amid the 1984–85 UMW strike against his company, Blankenship had declared, “What you have to accept in a capitalist society generally is that it’s like a jungle where it’s the survival of the fittest. . . . From a business standpoint, it’s survival of the most productive, and in the long term the most productive people who benefit.”
Blankenship considered Hugh Caperton’s small mine, in Harman, Virginia, to be the kind of debt-ridden union operation that needed to adapt to Massey’s ways—or die. Massey companies were known for doing anything to advance their position: using financial leverage with customers, sabotaging competitors, and fighting the union.
One of Massey’s newly acquired subsidiaries, United, had a subcompany, Wellmore, that had a long-term contract to buy Harman’s coal, but Blankenship decided the price was too expensive. So when he saw an opportunity to nullify the contract, he jumped. His meddling destroyed Caperton’s company—a small sacrifice in Massey’s inexorable advance in a free-market, capitalist society where any economic advantage must be exploited.
Blankenship warned Caperton that if he were so foolish as to sue Massey, the company had the money and the power to destroy him. But Caperton filed a suit anyway and, with Fawcett and Stanley as his attorneys, won a $50 million jury judgment in Boone County, West Virginia.
Blankenship called the verdict “a frightening result” and appealed to the Supreme Court of Appeals of West Virginia. Three of the court’s five members were avowed progressives, and Blankenship, a conservative Republican, had reason to believe that he and his company stood little chance among them. West Virginia, however, is one of thirty-nine states that elect judges, and before Massey’s Caperton appeal could be heard, Blankenship had spent more than $3 million to defeat an incumbent liberal Democratic West Virginia supreme court justice who would have likely ruled against him. His money helped elect Brent D. Benjamin, the first Republican to the court in seventy-six years.
Despite Blankenship’s massive donations, which would indicate a certain conflict of interest, the newly elected judge refused to recuse himself from Caperton. Benjamin joined the court’s 3–2 majority overturning Caperton’s lower-court victory on a narrow technicality, voiding a jury verdict that, with interest, had reached $75 million.
The United States is one of the very few countries, including Japan and Switzerland, that elect judges to office. In the eight years before this Supreme Court proceeding, contributions to judicial elections across America had doubled. The money had grown so fast and so large that some experts felt the integrity of the entire American court system might be at stake. The contributions had reached such a magnitude that critics believed they risked breaching the “impenetrable bulwark” of an independent judiciary, as described by James Madison when he introduced the Bill of Rights in Congress in 1789.
The donations had been monitored by the progressive nonprofit Justice at Stake, which works to ensure fair and impartial courts. The organization followed twenty-nine contested elections in the first decade of the twenty-first century. In these contests, 144 groups contributed an average of $473,000 apiece in elections across America. Large donations accounted for more than 40 percent of all judicial campaign funding during the decade. Blankenship had given more money, by far, than any other group or individual in any one judicial contest. Most likely, no individual in American history had ever contributed as much money to one judicial campaign as Blankenship had.
Critics argued that these contributors typically did not open their checkbooks to elect thoughtful, independent jurists who would deeply and deliberatively contemplate each decision. Rather, they spent their money to elect judges who thought the way they thought and would vote the way their money dictated. The way Blankenship saw it, he had done no more than what any other freeborn American citizen could have done and had backed up his beliefs with his money.
In Caperton, the questions were clearly and vividly defined, and the case would be zealously argued this morning. Was a citizen’s constitutional right to due process and a fair trial violated when one side made large contributions to a judge considering the case? Did an ordinary citizen have the right to force a judge to step aside from a case where, because of massive donations to his election, a reasonable person would assume that the judge would likely favor one side?
Due process, as established in the Fifth and Fourteenth Amendments to the Constitution, is a fundamental right of every American. It holds that the government has an absolute obligation to afford every citizen legal rights, no matter how rich or poor, no matter their race or religion, no matter how heinous the crime of which they stand accused, and no matter their ability to contribute to a judge’s election campaign.
If the court ruled that what Blankenship had done was constitutionally permissible, critics of unfettered campaign contributions argued, there would be no stopping him and other wealthy individuals, organizations, and unions from essentially buying elections in states without campaign finance laws. If the Supreme Court ruled that Blankenship had spent too much, people like him would still have their say, but they would not be able to overwhelm other voices. In West Virginia, the impact would be unprecedented if the highest court in the United States rebuked both the Supreme Court of Appeals of West Virginia and Blankenship, the most powerful private citizen in Appalachia.
Olson knew that he would be making the kind of argument before the court that he had rarely made before. Olson’s conservative soul mates argued that you could not regulate free speech; if you started tinkering with people’s rights to express their views through financial contributions, you were heading down a dark road.
Olson’s opponent today would be Andrew L. Frey, a New York attorney who had his own stellar record in front of the court. Massey’s attorney argued that the West Virginia judge whose integrity was being challenged had not asked Blankenship for money, although he most certainly had, according to an interview Blankenship gave to the New York Times as well as a second witness. The appellate attorney argued, further, that to agree to the petitioner’s “ ‘vague and malleable standard’ would almost certainly ‘open the gates for a flood of litigation.’ ”
Olson’s closest personal friends on the court, Antonin Scalia and Chief Justice John Roberts, would almost certainly agree and were the most likely votes against him. The three men had marched politically and intellectually together for three decades, and now here was Olson wandering off to the left.
Many in Washington found it unthinkable that Olson had decided to argue Caperton simply because of its legal merits. Some felt that Olson had softened ideologically since his wife’s death, and that was why he would even consider advocating the progressive arguments in the case. Others credited the attorney’s fourth wife, Lady Booth, a tax attorney and liberal Democrat, for his having taken the case. A few opined that Olson, an adept user of the media, had agreed to argue Caperton to cloak himself in a new, more moderate image.
But Olson truly saw in Blankenship’s and the other disproportionate special-interest contributions to judicial candidates a challenge to the very notion of American justice. In such situations, he did not believe that the decision to recuse could rest simply on the judgment and honor of the individual judge.
Olson knew that the odds today in front of the court were not as favorable as they usually were for him. The majority of the justices had been reluctant to hear the case, and he feared that no matter how well he honed his arguments and how eloquently he spoke he might walk away a loser.
Olson kept thinking about his strategy until he arrived at the building on Connecticut Avenue housing Gibson, Dunn & Crutcher. It was a little after five in the morning when the attorney took the elevator up to his office at the Washington law firm.
Amir C. Tayrani was not a morning person, and Olson’s youthful associate did not arrive until seven. The lawyer was crucial to Olson’s appearances before the Supreme Court and he had worked alongside the senior lawyer in the months of preparation. Tayrani knew that at this moment Caperton rested within Olson’s head and there was little more that he could do but leave Olson to spend the next few hours going over his argument for a final time.
Olson was like a novelist obsessed with the first sentence of a manuscript. He worked and reworked the opening words, playing with phrases, toying with new ideas. “A fair trial in a fair tribunal is a fundamental constitutional right”—that, he had decided, was how he would begin, keeping it short and simple. “That means not only the absence of actual bias, but a guarantee against even the probability of an unfair tribunal.” There, as he saw it, in two neat sentences, sat everything that was at stake—for himself, for Hugh Caperton, for Don Blankenship, for the citizens of West Virginia, and for all Americans.
Copyright © 2013 by Laurence Leamer