Posted: Feb. 28, 2014

LEO STRINE AND THE LEFTOVER JUSTICES

By Celia Cohen
Grapevine Political Writer

If Joe Biden has been there for the courtroom ceremonies, no doubt he would have called it a BFD.

Delaware was getting a new chief justice.

Leo Edward Strine Jr. took his oath Friday as the eighth chief justice of the modern Supreme Court since its creation in 1951, its youngest chief ever at 49, as well as the first baby boomer, just as the Baby Boom commences its fadeaway from public life. The courts always do seem a bit behind.

Biden was practically the only member of the state's political elite missing among the hundreds of onlookers who made the pilgrimage to the New Castle County Courthouse in Wilmington to watch the investiture.

The governor and the lieutenant governor, both senators, other statewide officeholders and legislators, Cabinet members and a host of judges were there, as were Myron Steele, the former chief justice, and Bill Chandler, the former chancellor, the two ex-judges whose departures cleared the way for Strine's 15-year advancement from vice chancellor to chancellor to chief justice.

The proceedings lasted about 45 minutes. Strine spoke for half of it. Not that people should have been surprised.

Strine is the Sun King of the state judiciary. He is a bright and commanding presence known to shine -- "Leo is a brilliant jurist," said Jack Markell, the Democratic governor -- but just as often to scorch. No speaker mentioned that.

Strine comes to a five-member bench where the others -- Randy Holland, Carolyn Berger, Jack Jacobs and Henry Ridgely -- have sat together for nine years.

It says something that it was notable all of them showed up.

Holland, as the senior justice, tried to set a tone in his opening remarks, talking about the court's collegiality and the "Delaware unanimity norm" with its 99 percent rate for unanimous decisions, and quipping that Strine as the new chief justice was like a Super Bowl MVP, not exactly getting to go to Disney World, but "come along and sing a song and join our family."

Still, the bench and bar are already buzzing about how -- or if -- Strine will blend in.

It so happens that Strine, while still the chancellor, recently substituted on the Supreme Court for a lawsuit filed against the DuPont Co. by Marina Elena Martinez, the widow of an Argentine worker, claiming he was exposed to asbestos in a plant owned by a DuPont subsidiary in Argentina.

There was a majority opinion, and there was a dissent, a stinging one, written by Berger, who was a candidate for chief justice along with Strine.

Over Berger's objections, the court sided with DuPont and dismissed the case on the grounds it would be a hardship on DuPont for the lawsuit to be heard here in Delaware, because the governing law was in Spanish, the widow was not a Delaware resident, and the alleged injury occurred in Argentina.

Berger countered the court had never before dismissed a case against DuPont by such logic.

"It is a Delaware corporation whose headquarters is in Wilmington, Del. But the majority holds that it would be an overwhelming hardship for DuPont to defend a . . . claim if litigated five blocks from its headquarters," Berger wrote.

Berger suspected an ulterior motive, namely, the case was dismissed to send a message that the courts here do not meddle with the law in other places and the courts elsewhere should not horn in on Delaware's signature caseload of corporate law, the crown jewels that give the court system its reputation as the finest in the land. You don't stab us in our back, and we won't stab yours.

"Its real point [is] that Delaware corporate law should be decided in Delaware and that other jurisdictions should 'stay in their lane,'" Berger wrote.

With the turn of phrase, "stay in their lane," Berger all but said it was Strine who was the prime target of her dissent, because it is an expression he says a lot.

Go ahead. Google it and watch the references pop up, like the one last year from Reuters: "He [Strine] often warns judges in other states to 'stay in their lane' and keep their hands off Delaware corporate law cases."

What a way for Strine to join the court.

It has the bench and bar speculating how the other justices will deal with being in the shadow of the Sun King, particularly because all of them are eligible to retire, so will they go or will they make like John Paul Jones, who has not yet begun to fight? It is a BFD.

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