07/04/2008 05:12 am ET Updated May 25, 2011

Justice for All?

The Supreme Court today sent a clear signal to companies that demonstrate "reckless negligence" that they don't need to worry about being held accountable for their behavior. It came within one vote, on a 4-4 split, of entirely relieving Exxon of the damages awarded by a jury for the Exxon Valdez disaster's horrific impact on the fishing communities and environment of Prince William Sound.  Instead, it reduced the damages, originally set by a jury at $9 billion and subsequently reduced by a federal Appeals Court to $2.5 billion, to a paltry $500 million.

To come up with this slap on the wrist, the Court reached back, dusted off a single precedent form the 1830s which said that shipowners do not (in that era, anyway) control the actions of their captains. Ignoring the fundamentally different communications technology of 1995, the judges essentially ruled there is no law on the sea. Shipowners can be as reckless as they wish, and fear only the tiniest of sanctions.

The four justices who wanted to let Exxon off scot-free failed to prevail only because Justice Alito couldn't join them. He recused himself because he owns a lot of Exxon stock. The next major tanker disaster, assuming the responsible oil company is one in which Alito doesn't have a major financial stake, will promptly be awarded the crucial fifth vote needed to dismiss the idea that oil companies should, in the 21st century, be expected to operate their supertankers responsibly. It's going to be just fine to keep hiring ship's officers with known problems of alcoholism or drug abuse.

The Court failed to address that oil companies have repeatedly and flagrantly operated their fleets recklessly (causing dozens of major oil spills in the past few decades) and have offered no solution to the problem. Now that companies that operate oil tankers are immune from taking responsibility, the concept of "justice for all" has suffered another wound -- at the hands of the kinds of judges that Senator John McCain would like to appoint more of -- so called "strict constructionists." (Search your copy of the Constitution for the notion of corporate invulnerability. Search as strictly as you want. I don't think you'll find it there.)

The concept of equal justice was dealt still another blow a few hours later when an internal Justice Department investigation disclosed that, under the Bush Administration, hiring decisions about career lawyers at the Department of Justice were made on the basis of the social, environmental, and political views of the applicants. Lawyers who admitted that they belonged to the Sierra Club were blackballed, as were those with connections to NRDC, EDF, the National Wildlife Federation, and dozens of other social-cause organizations. This behavior is flagrantly illegal, but it doesn't appear that anyone will be punished -- the most egregiously guilty parties have already left the government, including former Attorneys General Ashcroft and Gonzalez.

This latest shameful episode offers Senator McCain an opportunity to restore some of his tarnished reputation as a reformer -- he ought to denounce this loudly, and make it clear that if elected he will seek to ensure that those who subverted the Justice Department into an ideological weapon will have to face the consequences.