The Outsider
Page 27
As for the responsibilities of a clerk, I believe the “five tasks” Lauren Hart describes pretty accurately summarize them. The clerk “happy hours” are real; the First Saturday events are not. I also made up the famous “envelope.” Clerks I’ve spoken with note that they can’t imagine that a justice would bring his or her clerks on a trip like the jaunt to Martha’s Vineyard in the story. I was also told that a justice would never work while eating in the justices’ opulent private dining room.
On a more serious note, my novel suggests that the law clerks lack diversity. Nearly twenty years ago, Tony Mauro, the esteemed Supreme Court correspondent for the National Law Journal, was the first to systematically study the demographic profile of Supreme Court law clerks, finding that fewer than 2 percent of the clerks were African American and even fewer were Hispanic. Mauro continues to study and write about the issue. While The Outsider is a thriller and I have no intention of preaching, Mauro’s work did help me think about what it would be like for a poor Mexican American who attended a low-ranked law school to be thrust into the clerk community.
As for the primary setting of The Outsider, the Supreme Court building is as majestic as I describe, a Roman temple filled with marble and mahogany. I’ve had the privilege to represent clients in numerous cases before the court, to sit at the long table just a few feet from the justices, and to get behind-the-scenes tours of the places depicted in the novel. I’ve done my best to capture the feeling of being there. If you are ever in Washington, D.C., I highly recommend roaming the building. It is open year-round, and admission is free. For those unable to visit, I recommend Fred and Suzy Maroon’s book The Supreme Court of the United States, which contains more than one hundred beautiful photographs of the building.
The court is a place of tradition, as I note in the novel—from the justices being seated in order of seniority, to the most junior justice designated as note taker and door opener when the justices are in their secret conferences, to the quill pens given to advocates. Speaking of the pens, which obviously serve as a plot point in the novel, the court started the practice in the 1800s when Chief Justice John Marshall gave pens and inkwells to lawyers appearing before the court.
The book also references several Supreme Court decisions—some real, some not. The Korematsu case, which upheld the internment of Japanese Americans during World War II, and Buck v. Bell, wherein Justice Oliver Wendell Holmes made the offensive “three generations of imbeciles” remark are, unfortunately, real decisions. So is Plessy v. Ferguson, which upheld the separate-but-equal doctrine. All are considered low points in the court’s jurisprudence, but I hope readers do not forget the many high points.
The school-speech case about the rapper in the opening pages of the book is based on a real case that the court declined to review. Friends of mine represented the student rapper, and Adam Liptak of the New York Times—a storied reporter and former First Amendment lawyer himself—wrote an insightful piece on the case that I relied on for my scene. The Anton Troy death penalty case is not real, though it was inspired by actual legal challenges concerning the drugs used in lethal injections. Also, Lauren Hart’s recitation of my fictitious chief justice’s opinion criticizing the death penalty is drawn largely from real dissenting opinions in two recent death cases, as well as the exceptional analysis of the cases by Adam Liptak.
The Filstein case about the government’s drone policy is fictitious, but drawn from articles by Jeremy Scahill. And the Wakefield Estates eminent domain case and the Jando search-and-seizure case also are not actual cases, though someday variations of the issues in those cases could well reach the high court.
I reference past justices, including Justice William O. Douglas (a justice from 1939 to 1975), whose quote opens the book. Some dispute that Douglas referred to clerks as the “lowest form of animal life,” and Douglas’s former clerks have defended history’s harsh assessment of their boss. No one, however, defends Justice James McReynolds (1914–1941). Retired Justice Sandra Day O’Connor (1981–2006) noted in her book Out of Order that McReynolds was a “self-professed anti-Semite who behaved badly to Justices Brandeis and Cardozo, who were Jewish.” Clare Cushman, managing editor of the Journal of Supreme Court History, wrote a fascinating article about McReynolds’s law clerks, relying on letters written by these poor souls during their clerkships. In 1938, one clerk wrote his mother about the difficulty of spending time with “a man so small that no matter how hard he tries, will never become as big as his position.”
Justice Horace Gray (1881–1902) was in fact the first justice to hire a law clerk. And the anecdote about Justice Thurgood Marshall (1967–1991) writing “not yet” on his medical file passed on to Richard Nixon is purported to be true, among so many other great Marshall tales.
I did not mention sitting justices in The Outsider, but there were a few things I borrowed from their lives. For instance, in his nomination speech, the current chief justice, John G. Roberts, remarked that “I always got a lump in my throat whenever I walked up those marble steps to argue a case before the court, and I don’t think it was just from the nerves,” a statement I modified and attributed to the chief in The Outsider. Like my chief, Roberts also used sign language to swear-in a group of deaf lawyers to the Supreme Court bar.
I also drew from Justice Elena Kagan. During her confirmation hearing, then Solicitor General Kagan was asked about the solicitor general being referred to as the “tenth justice.” Kagan said that she thought the “justices think of the solicitor general more as the thirty-seventh law clerk.” If you’ve finished The Outsider, you know the significance of that reference to the story. Several justices, including Justice Ruth Bader Ginsburg, serve as judges in the Shakespeare Theatre Company’s annual mock trials, which I also reference in the novel.
Finally, you may recall my character Justice Wall’s speech at Georgetown about growing up with his friend the chief justice. Here, I was inspired by a real speech Justice Samuel Alito gave at an end-of-the-term celebration held by Georgetown University Law Center’s Supreme Court Institute. This is the second book where I’ve appropriated events from the institute’s annual party—I hope they invite me back.
Outside the Supreme Court realm, D.C. State is not a real institution. And sketchy Hamilton Heights is not an actual D.C. neighborhood. I love D.C. and the surrounding area—all three of my children were born in the District—so I didn’t have the heart to single out a particular neighborhood.
Errors are all my own. The fictitious criminal elements in the story aside, I hope to have given readers a glimpse into an institution that I greatly admire and truly believe is the finest our government has to offer.
ALSO BY ANTHONY FRANZE
The Advocate’s Daughter
The Last Justice
ABOUT THE AUTHOR
ANTHONY FRANZE is a lawyer in the Appellate and Supreme Court practice of a prominent Washington, D.C., law firm and a critically acclaimed thriller writer with novels set in the nation’s highest court. Franze has been a commentator on legal and Supreme Court issues for The New Republic, Bloomberg, National Law Journal, and other major media outlets. He is a board member and vice president of the International Thriller Writers organization. Franze lives in the Washington, D.C., area with his family. You can sign up for email updates here.
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CONTENTS
Title Page
Copyright Notice
Dedication
Epigraph
Prologue
Chapter 1
Chapter 2
Chapter 3
Chapter 4
Chapter 5
&nbs
p; Chapter 6
Chapter 7
Chapter 8
Chapter 9
Chapter 10
Chapter 11
Chapter 12
Chapter 13
Chapter 14
Chapter 15
Chapter 16
Chapter 17
Chapter 18
Chapter 19
Chapter 20
Chapter 21
Chapter 22
Chapter 23
Chapter 24
Chapter 25
Chapter 26
Chapter 27
Chapter 28
Chapter 29
Chapter 30
Chapter 31
Chapter 32
Chapter 33
Chapter 34
Chapter 35
Chapter 36
Chapter 37
Chapter 38
Chapter 39
Chapter 40
Chapter 41
Chapter 42
Chapter 43
Chapter 44
Chapter 45
Chapter 46
Chapter 47
Chapter 48
Chapter 49
Chapter 50
Chapter 51
Chapter 52
Chapter 53
Chapter 54
Chapter 55
Chapter 56
Chapter 57
Chapter 58
Chapter 59
Chapter 60
Chapter 61
Chapter 62
Chapter 63
Chapter 64
Chapter 65
Chapter 66
Chapter 67
Chapter 68
Chapter 69
Chapter 70
Chapter 71
Chapter 72
Chapter 73
Chapter 74
Chapter 75
Chapter 76
Chapter 77
Chapter 78
Chapter 79
Chapter 80
Chapter 81
Chapter 82
Chapter 83
Chapter 84
Chapter 85
Chapter 86
Epilogue
Acknowledgements
About Authenticity
Also by Anthony Franze
About the Author
Copyright
This is a work of fiction. All of the characters, organizations, and events portrayed in this novel are either products of the author’s imagination or are used fictitiously.
A THOMAS DUNNE BOOK FOR MINOTAUR BOOKS.
An imprint of St. Martin’s Press.
THE OUTSIDER. Copyright © 2017 by Anthony Franze. All rights reserved. For information, address St. Martin’s Press, 175 Fifth Avenue, New York, N.Y. 10010.
www.thomasdunnebooks.com
www.minotaurbooks.com
Cover illustration of man by Silas Manhood
Cover photographs: Washington, D.C. © Fstockfoto/Shutterstock; Supreme Court building © Trekandshoot/Alamy Stock Photo
The Library of Congress has cataloged the print edition as follows:
Names: Franze, Anthony J., author.
Title: The outsider / Anthony Franze.
Description: First Edition.|New York: Minotaur Books, 2017.|“A Thomas Dunne Book.”
Identifiers: LCCN 2016044899|ISBN 9781250071668 (hardback)|ISBN 9781466882843 (e-book)
Subjects: LCSH: United States. Supreme Court—Officials and employees—Fiction.|Murder—Investigation—Fiction.|Political fiction.|GSAFD: Suspense fiction.|Mystery fiction.|Legal stories.
Classification: LCC PS3606.R4228 O98 2017|DDC 813/.6—dc23
LC record available at https://lccn.loc.gov/2016044899
e-ISBN 9781466882843
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First Edition: March 2017