1 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 Virginiaborn 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 198485 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.