The ponytailed lawyer said, “The South Dakota Supreme Court ruled that the carburetor made by Stigling-”
“Hold on. You’re comparing a carburetor to a firearm?”
“They are both-”
“Made of metal? I grant.”
“With respect, Justice Santamaria, I was only going to point out, sub specie aeternitatis…”
“Sub specie infernalitatis, I should think,” Santamaria shot back.
Pepper thought, What in the hell are these people talking about? Had she been teleported back to the rostrum in the Roman forum?
The lawyer pushed on. “… that a carburetor and a firearm, however distinct from a mechanical point of view, are both devices that come with implicit guarantees of functionality.”
“Like an electric chair, say?”
A susurrus of laughter rippled through the Court. Justice Santamaria was frisky today.
The lawyer smiled wanly. “If you will. The relevant aspect here is that Mr. Norbert forfeited victory in his NASCAR race because his carburetor malfunctioned on the next-to-last lap. Not only did he forfeit the prize money but considerable income from product endorsements. It was this aspect that the State Supreme Court found-”
“What if Norbert’s kidneys had failed on the next-to-last lap? Could he have sued his urologist for damages?”
Another ripple of laughter.
“Actually, I’m glad you brought that up,” the lawyer said. “Absent invasivity, of course, there would be no grounds there. However, as I’m sure you’re aware, in Bosco v. Worcester Stent, the Court held that Worcester Stent was in fact liable when one of its vascular stents implanted in Ms. Bosco’s left thigh become dislodged while she was singing ‘O mio babbino caro’ at the Pierre Opera-”
“Yes, yes, yes,” Justice Santamaria said peevishly. “But that was purely on sub tecto grounds.”
A tiny ripple of approval went through the spectators, the sound of a dozen bees coming upon a satisfactory rose.
“Yes,” said the lawyer unblinkingly, “but as you’ll recall, in Norbert the Court concluded that the contract between Norbert’s racing organization and Stigling provided that the governing law was Delaware ’s. Paragraph 7.23, I believe. It was in fact that clause that-”
“Are you saying,” said Santamaria, in tones that suggested his intelligence had been insulted, “that money earned from product endorsements is qua pecunia no different from money demanded at the point of a gun during a bank robbery?”
“Oblatively, no, Justice. However, from a pro tanto standpoint, I would say that-”
“Uh-uh. No way. Not in Delaware,” Justice Santamaria grunted. “And in case you were thinking of citing Minnesota, my advice to you, sir, would be, don’t go there. The Eighth Circuit practically hired a skywriting plane to spell it out.”
Santamaria sat back heavily in his chair, which emitted an authoritative squeak.
“I wasn’t going to adduce Minnesota,” said the ponytailed lawyer, beginning to show signs of hyperventilation, “but you might agree that in Arkwright v. Gadmunster-”
Justice Plympton, who by now had had enough of Silvio’s theatrics, ventured into the turbid water. “I’m a little confused,” she said, “perhaps even a mite troubled by your invocation of Greenox v. Pesterson Hydraulics…”
Pepper’s cheeks flushed. She felt like a chickadee that had alighted on a branch with eight owls. Eight horned owls. While she could pretty much make out the references-her clerks had prepared a detailed bench memo for her-it was just all so darn… boring, really.
She thought, Here we got an idiot bank robber suing the maker of his gun. What I could do with this on Courtroom Six.
She looked over at JJ. It was clear he didn’t have the foggiest idea what they were all talking about. How could he? Should she say something? On her first day? Some justices waited weeks, months, years, before saying a word.
Justice Haro had jumped in.
“I don’t have any problem with Greenox,” he was saying to the lawyer. Justices rarely if ever address one another in oral argument. “From my review, I’m not satisfied Mr. Swayle was even aiming the gun at Deputy Fogarty. So absent mens rea, you’d have concommittant diminuendo of ballistico ad hominem. Unless,” Justice Haro shrugged with transparent insincerity, “I’m being obtuse.”
Justice Santamaria shot his fellow justice a sidelong glance of withering contempt.
Satisfied that his rhetorical question had carried the day, Justice Haro continued. “Not that that’s relevant in quem particularem insofar as the functionality of the firing pin is concerned. Which, really, is neither here nor there. But let me ask, was the firing pin manufactured by Rimski? Or was that outsourced to some… sweatshop?”
“No, Justice Haro,” the lawyer said, delighted, “the firing pin was manufactured at the New Haven facility. By nonunion labor. You’ll recall, per Sikorski v. United Strutfitters Local 12, that Rimksi was in judicare.”
“Um,” said Justice Haro, as though he had been reminded of a fact translucently well known to himself. “So clearly there’s no in remoto aspect here?”
“None whatsoever,” the lawyer said triumphantly.
Chief Justice Hardwether leaned forward into his microphone and said softly, “You seemed to go out of your way not to adduce Persimmon v. Aberdeen Wheelchair.”
There was a slight but perceptible intake of air in the hall.
The lawyer smiled demurely. “I had a feeling you were going to bring that up, Mr. Chief Justice. I reread Persimmon. But try as I might, I could find no iteration of quem protesto.”
Hardwether curled the side of his mouth, not unpleasantly, in a sort of Oh-come-on-now-do-I-really-look-like-I-just-fell-off-the-turnip-truck? look. “Did you read as far as page 653 before declaring moral victory?”
The lawyer froze. “I… believe… yes…”
“Then you’re well aware that quo warranto has no provenance here, absent guided direction.”
A sound went through the court like a hundred snakes slithering across the marble floor. Hardwether had just scored a palpable hit! You could hear the muttering: Declan may be hitting the sauce, but he hasn’t lost his edge.
“You have me there, Mr. Chief Justice,” the lawyer conceded, his face reddening, “but might I tempt you with Ordpurvis v. Sioux Falls Hydro-Electric.”
By now Mo Gotbaum was on the third verse of “Born to Be Wild.” Herself, Pepper felt like the Norwegian painting of the guy silently screaming.
Chief Justice Hardwether continued, “You could try. But I would stipulate, if I were you, that the South Dakota Circuit Court went out of its way in Ordpurvis to point out that in its view it was a clear-cut case of interrebus quod aspecto and that it had absolutely zero bearing per res sciatica. Now,” he said, the picture of a reasonable man, “if you want to go that way, I’d say take a look at Shrump v. Hartsdale Motorworks-”
“Could I just say something here?” Pepper blurted.
Everything froze in the Great Hall of the United States Supreme Court. Time stopped. At which point Pepper, with dawning horror, realized that all eyes were on her.
Oh. My. God, she thought. First time out-first time out-and she had just interrupted a fellow justice. And not any justice. The Chief Justice. Way to go, girl. In the hierarchy of no-nos, that was right up there with vomiting on the Pope during High Mass at St. Peter’s. She wanted to shrink inside her robe like a turtle.
Justice Hardwether, somewhat taken aback, nodded faintly and said, “Yes, Justice Cartwright. Of course.”
Whereupon Pepper’s mind suddenly went as blank as a crashed computer screen. She pressed every button, but all she could see on the screen was a blinking icon that said, YOUR HARD DRIVE IS EMPTY.
“I…” she tried, “with respect to”-she couldn’t even remember what case they were discussing-“… there is… it seems to me to boil down to quem… I mean, quasi… modo…”