Supreme Justice

by Phillip Margolin

  "Can I help you," the rent-a-cop said as he shone the light into the car's interior.

  "Yeah. It'd be a big help if you'd get that light out of my eyes," Oswald snarled. Then he caught himself. It was late, he was tired and pissed off, but there was no reason to take that out on the guard.

  "Sorry, rough day," Oswald apologized. "Where's Dave?"

  "Who?" the night watchman asked.

  "Dave Fletcher, the guy who's usually here."

  "I got no idea. They just transferred me from the mall in Astoria." The guard shook his head. "I hope this ain't permanent. This place is too damned isolated for me. Know what I mean?"

  "Yeah. Look, we're just taking a break. We'll be out of your hair in fifteen."

  "OK, then," the guard said and he walked off.

  "The fuckers disappeared the whole damn ship," Oswald said as soon as the night watchman was out of earshot.

  "I saw David Copperfield make the Statue of Liberty disappear on TV once," Swanson said. "This is just like that, only Copperfield brought the statue back."

  Tom Oswald lived by himself in a one-bedroom house that had been too small for Tom and his ex-wife and still seemed too small even with Linda out of his life. The house was dark and melancholy and held few good memories. Oswald had been depressed when he was discharged from the army, and his hasty marriage to a woman with a bipolar disorder and a drinking problem had not been the smartest of moves. The house was haunted by heated words and angry silences, and Oswald stayed away from it whenever he could.

  Instead of going home when his shift ended, Oswald drove to the trailer park where Dave Fletcher lived. He stopped his car in front of Fletcher's trailer and knocked on the door.

  "If you're looking for Dave, he's gone."

  Oswald turned toward the voice. A heavyset woman in a housecoat was standing in the door of the next trailer. Her hair was in rollers and a lit cigarette dangled from the fingers of her left hand. Oswald crossed the yard between the mobile homes.

  "I'm Tom Oswald. I'm with Shelby PD, Mrs. . . ."

  "Dora Frankel."

  "Where did Dave go, Mrs. Frankel?"

  The woman took a drag of her cigarette and shrugged. "I got no idea."

  "Can you remember when you saw him last?"

  Frankel stared into space. "I saw him head out the day before, but his car ain't been parked by the trailer since then. Has something happened to him?"

  "Not that I know. I just needed to talk to him about a case."

  "He hasn't done anything wrong, has he?"

  "He's a witness. He's not in any trouble."

  "That's a relief. Dave's always been a good neighbor."

  Oswald handed the woman his card. "If Dave comes back, ask him to call me."

  "Sure thing," Frankel said. "I got to go in now. My program's starting."

  When he got back in his car, Oswald made a mental note to talk to Fletcher's employers, but he didn't think they would be able to tell him what happened to Dave. His gut told him that the night watchman had disappeared along with the ship, the dead men, and the hashish. He hoped he was wrong about another victim being added to the body count, but nothing about the China Sea affair smelled right.

  Oswald drove on automatic pilot while he thought about what the incident had taught him. He now knew that the inhabitants of Shelby, Oregon, were very little fish in a gigantic ocean where people, holds full of drugs, and entire ships could be made to disappear without any effort at all. He did not appreciate being pissed on by the big fish, but there wasn't a lot he could do about that, especially after Chief Miles had told him to forget everything he'd seen.

  Oswald was halfway home when he conceived of a small act of defiance. He turned his car around and headed back to the station. He had the fingerprints he'd hidden from the goons from Homeland Security. It wasn't much, but he could scan those fingerprints into AFIS, the Automated Fingerprint Identification System, and see if he could get a match. He had no idea what he would do if he identified the person who'd left the latents. His satisfaction would come simply from doing something he'd been ordered not to do.

  Part II The Court of Last Resort

  2012

  Chapter Four

  When Brad Miller checked his tie in the mirror, he noticed that a few silver strands had insinuated themselves in his curly black hair. This was not surprising, given what had happened last year. But that was last year, this was now, and Brad smiled as he adjusted the knot.

  Brad had several reasons to be happy, the biggest being Ginny Striker, his fiancee, who was standing next to him applying her makeup. Ginny was a few years older than Brad--a tall, slender Midwestern blonde with large blue eyes, whom he'd thought of as a commercial for Kansas when they'd met a year and a half ago as first-year associates at a law firm in Portland, Oregon. Ginny had moved to Washington, D.C., with Brad seven months ago when retired United States Supreme Court justice Roy Kineer helped her get an associate's position at Rankin Lusk Carstairs and White, one of the capital's most prestigious law firms. Her six-figure salary was the reason they could afford their apartment on Capitol Hill. Brad certainly couldn't have made their rent on the salary he was being paid to clerk for United States Supreme Court justice Felicia Moss, a job Kineer had secured for Brad as a reward for helping expose the greatest scandal in American political history.

  The clerkship was another reason to smile. It might not pay much, and Brad's workday might last ten to twelve hours, but a clerkship on the Supreme Court was every lawyer's dream job, one that opened the door to any position in the legal universe. The fact that he was clerking for someone as brilliant and as nice as Justice Moss was a bonus.

  And there was one final reason to smile. Brad's life had been blessedly uneventful since he'd arrived in Washington. Uneventful was very, very good if the exciting incidents that had made your previous year event-filled consisted of being attacked by gun-wielding assassins, digging up a jar filled with severed pinkies that had been buried by a serial killer, and, last but definitely not least, bringing down the president of the United States.

  "Guess what I did?" Brad said when he'd finished fixing his tie.

  "What?" Ginny asked as she put the final touches on her makeup.

  "I made a reservation at Bistro Bis for eight tonight."

  "What's the occasion?"

  "The six-month anniversary of no one trying to kill me and no reporter trying to interview me."

  "Has it been that long?"

  "Yup. I guess I've finally become a nonentity again."

  "Oh, Brad," Ginny cooed. "You'll never be a nonentity to me."

  Brad laughed. "I guess I can handle one person who still thinks of me as a god."

  "I wouldn't go that far."

  Brad kissed Ginny on the cheek. "Let's get going. You might have nothing better to do in the morning than look in the mirror, but I'm a busy man."

  Visitors to the United States Supreme Court cross a raised plaza paved in gray and white marble, climb fifty-three broad steps that lead to the fluted Corinthian columns supporting the west portico, and enter the high court through a pair of magnificent bronze doors decorated with eight panels depicting The Evolution of Justice. When Brad Miller and the other law clerks came to work, they crossed a different marble plaza at the rear of the building and entered through the employees' entrance on Second Street. After punching in his code, Brad passed a small desk manned by a security guard. The guard didn't ask for identification because the Court security guards had memorized every clerk's face.

  From day one, Brad had the sense that everything about the Supreme Court was very serious. Everywhere he looked he saw thick marble, dark wood, and no sign of architectural frivolity. Even the air in the building felt heavy. And the law clerks . . . There were thirty-six of them, and most had been the kind of students who had to be talked in off a ledge if they got an A minus. Not that any of them had ever suffered a tragedy of that magnitude.

  Many of the clerks regarded Brad as they mi
ght an exotic exhibit in a carnival side show. He had not been Phi Beta Kappa, nor had he gone to a prestigious college or law school or clerked for a federal appellate court judge. On the other hand, none of the other clerks had brought down a president of the United States. Brad felt self-conscious around these legal geniuses even though he had been an editor of his school's law review, and he was still nervous about giving a legal opinion to Justice Moss, afraid that he might have missed something that one of the Harvard grads would have spotted with ease. But Moss seemed pleased with his work, and he was gaining confidence. Last week, she'd even complimented him on a memo he'd written. The judge was stingy with praise, and her verbal pat on the back had lifted him six inches off the ground.

  Brad's day was taken up drafting opinions and dissents, writing bench memos that helped Justice Moss prepare for cases the Court was about to hear, crafting memorandums that commented on the opinions from other chambers, recommending whether to grant or deny petitions asking the Court to review decisions from lower Courts, and advising the justice on emergency applications, which were often last-minute requests for stays of execution.

  The work at the Court never slowed down, and juggling these assignments seven days a week was exhausting. Brad was thankful that the building housed a gym, a cafeteria, a barbershop, and other amenities that allowed him to groom himself, eat, and exercise, activities normal humans did in locations other than their place of work. But Brad had no complaints. He might work like a dog, but knowing that he had input into decisions that shaped American history was energizing.

  Justice Moss had four law clerks, and Brad shared an office adjoining her chambers with Harriet Lezak. Harriet was perpetually frazzled. She had curly black hair that seemed never to have known a comb and a tall, wiry figure, the result of running long distances and not eating. Brad was always fighting an urge to pin Harriet to the floor and force-feed her milk shakes. He often wondered if she ever left the court except to take one of her long runs. The clerks had no prescribed hours of work, but Brad felt compelled to come in early. No matter when he arrived, Harriet was always at her desk, and she rarely left work before he did. Brad thought of her as a new species of vampire, who lived on legal research instead of human blood.

  Brad and Harriet's office was one of several clerks' offices that lined a corridor on the first floor. The office was small and cluttered, with barely enough room for two desks. Its saving graces were a floor-to-ceiling window that let in light and the courtyard across the hall with its flowers and fountain that could be seen when the door was open.

  "Good morning, Harriet," Brad said. Harriet's eyes were glued to her computer monitor and she flicked a hand at him rather than reply.

  "Is the boss in yet?"

  "She's waiting on this memo," Harriet answered distractedly as she maneuvered the cursor across the monitor screen and clicked the mouse. The printer whirred and Harriet stood over it, impatiently tapping her fingers on her thigh. When the machine stopped making noise, Harriet snatched the papers it had produced and raced next door.

  Chapter Five

  Every associate justice is assigned an oak-paneled three-room suite consisting of a private chamber for the justice and two rooms for staff. Carrie Harris, a forty-year-old African American who had been Justice Moss's secretary since the judge was appointed to the Second Circuit Court of Appeals, guarded the door to the justice's chambers.

  "Is she ready for me?" Harriet asked.

  "She's waiting on that memo," Harris said, nodding toward the sheaf of papers in the law clerk's hand.

  Harriet rapped her knuckles on the doorjamb. Justice Moss was sitting behind a grand mahogany desk reading a file. She looked up and waved Harriet in.

  The judge's private chambers had a fireplace and a private bathroom. The United States Reports, which contain the Court's opinions, took up a good deal of the wall space. On the rest of the walls were an oil painting of former Justice Thurgood Marshall, photographs from Justice Moss's days with the Reverend Martin Luther King Jr., framed copies of her briefs in the landmark Supreme Court cases she had argued, and a quote in a pink quilted frame that provided an example of the judge's sense of humor. The quote was from Justice Bradley's concurring opinion in the 1872 case of Bradwell v. Illinois, in which the United States Supreme Court held that Myra Bradwell could be denied the right to practice law because she was a woman.

  [T]he civil law, as well as nature herself, has always recognized a wide difference in the respective spheres and destinies of man and woman. The natural timidity and delicacy which belongs to the female sex evidently unfits it for many of the occupations of civil life. The . . . domestic sphere . . . properly belongs to the domain and functions of womanhood.

  The paramount destiny and mission of woman are to fulfill the noble and benign offices of wife and mother.

  Felicia Moss was a sturdy, gray-haired, black woman who seemed more like a wise grandmother than one of the most powerful judges in the United States. The justice's real age was a closely held secret, and her response to those who asked was "None of your business," a line that got a lot of laughs at her confirmation hearing.

  Anyone who didn't know Justice Moss's history would be surprised to know that she'd run with a teenage gang on the mean streets of New York before figuring out that her life expectancy would improve if she got out of the ghetto.

  Moss had no idea who had fathered her. Her teenage mother had given birth to her at home, and her grandmother raised her after her mother died of a drug overdose. The first person in her family to graduate from college, she'd paid her tuition at CCNY by working menial jobs that left her little time to study. Even so, her grades had earned a scholarship to Columbia University Law School, where she'd finished fifth in her class. Unfortunately, the legal profession of the midsixties had no place for a woman, especially one of color. Her anger at having to work secretarial jobs while the men in her class collected fat checks on Wall Street drove her to the Deep South, where she used her legal skills to help Reverend King. Moss had been a beauty in her youth, and there were rumors--never confirmed--that she and King had been lovers.

  King's assassination drove Felicia Moss into a deep depression, away from the civil rights movement and to Wall Street, where she became the token African-American woman at a white-shoe firm trying to clean up its image. She lasted four years, during which she slowly became involved with the women's rights movement. Two pro bono victories for the ACLU in the United States Supreme Court established her reputation in legal and academic circles. After leaving Wall Street, Moss taught at her alma mater until President Jimmy Carter appointed her to the federal district court. President Clinton elevated her to the United States Court of Appeals for the Second Circuit, and President Nolan put the finishing touches on her judicial odyssey by nominating her to the high court.

  "Here's my memo on Woodruff v. Oregon, Judge," Harriet said when she was seated opposite her boss. The judge skimmed Harriet's analysis of the case while her clerk waited patiently.

  "So, you don't think we should grant cert?" Moss asked when she was done.

  "No," Harriet answered confidently. "Take the double-jeopardy claim. It doesn't stand up. Sure, Sarah Woodruff was tried twice for killing John Finley, but the first case was dismissed."

  "After a jury was selected and she'd suffered the ignominy of having to go halfway through a trial because the government kept crucial facts from the defense."

  "Which they had every right to do," Harriet responded. "Woodruff is arguing that her case is special, but she's just one person. Protecting all of our citizens outweighs the rights of a single citizen."

  "You don't think the application of the state-secrets privilege should be scrutinized more closely when the defendant is facing the death penalty?" Moss asked.

  "I don't. The type of charge has no bearing on the rationale that supports the privilege."

  Moss talked about the Woodruff case with Harriet for a few minutes more, then ended the discussion wh
en she saw that the time for her meeting with the other justices was drawing near.

  "OK. I'll read your memo carefully. It looks like you did good work. Now scat. I've got to get ready for conference. And ask Carrie to bring me some coffee. I'm going to need a caffeine fix to get through the morning."

  Harriet closed the door behind her, and Justice Moss frowned. Lezak was bright but she was mechanical. Her memo on Woodruff, like her other work, was exceptional, but she always concluded that the law is the law. It didn't hurt to inject some humanity into the law from time to time. After working with Lezak for half a year, the judge had concluded that she lacked soul.

  Moss thought about Brad Miller and smiled. There was an advantage to having four clerks. They each brought something different to the table. Brad was as good on the law as the Ivy Leaguers even if he hadn't yet convinced himself that he was, and he came at the cases differently from the kids from the top-tier law schools. The plight of the people involved in the cases concerned him. There were times when his emotions got in the way of his logic, but the judge could sort that out. It was nice to work with a bright young man who possessed a healthy dose of empathy.

  Moss glanced at the clock again and sighed. She had no more time for daydreaming. The issues in Woodruff were complex, and she still had no idea how she was going to come down on them. She hoped that she would do what was morally and legally right, but there were times when morality and the law dictated different results. As the final arbiter of the law in this great country, she had a duty to follow its statutes and cases even when her heart pulled her in a different direction.

  Chapter Six

  The only thing keeping many death-row inmates alive is a petition for a writ of certiorari, which, if granted, orders the last court to hear the petitioner's appeal to forward the record of the case to the Supreme Court for review. Twice each week, stacks of new petitions are circulated in the justices' chambers, where their law clerks write memorandums recommending that the petitions be granted or denied. The chief justice circulates a "discuss list" with cases deemed to have merit, and each associate justice may place additional cases on the list.