There had been vigorous discussion around the table. Normally, the Chief Justice did not encourage “debate,” preferring that these contentions be waged on the cooler battleground of written opinions and footnotes. Nine old farts sending footnotes to each other. But this was an unusual case, and sensing that a certain amount of face-to-face combat might be cathartic, he allowed it.
The four justices in favor of granting Mitchell’s motion clove to the (technical) argument that the term-limit amendment was in effect prior to the election, and that Vanderdamp’s election was thus null and void. The four justices in favor of denying the motion, and allowing President Vanderdamp to take office for a second term, made their stand on grounds of the larger issue, namely that the people-as in “We the People”-had elected him, amendment or no. They viewed with approval, too, Graydon Clenndennynn’s final (in so many ways) point that the Twenty-second Amendment was not “prospective.”
It got pretty heated. The word “goddammit” was uttered several times; the table was thumped; motivations subtly questioned; the Chief Justice had to interject, “Come on, now,” or “Please.” At one point, Crispus leaned over to Pepper and whispered, “This is better than Friday Night Smackdown.”
“Silvio,” said Justice Gotbaum, “you’re completely twisting what Bernstein said.” [33]
“I goddamn well am not. I do not ‘twist.’ ”
“Well, for your information, it’s a valid goddamn constitutional amendment. The Congress is the ultimate expression of the will of ‘the People.’ It has the superior claim to legitimacy-and therefore trumps-even the results of an election.”
“I’m with Mo,” Ruthless Richter said. “The principle here is precisely the same as in judicial review. We’re back to Marbury. And if you want to bring in law review articles, I’d refer you to Bill Treanor’s in Stanford Law Review. [34] As Justice Marshall observed in Marbury, ‘Ours is a government of laws, and not men.’ The amendment, adopted by ‘We the People,’ through the constitutional process, has a superior claim to legitimacy over an election result.”
“You make ‘election result’ sound like an abstraction!”
“I do not.”
“You do, too.”
“All right,” the Chief Justice finally said. “I think we’ve covered the ground.”
“Some of us covered it,” Silvio snorted. “Others stamped their little feet on it.”
“Bullshit!”
“All right,” Declan re-interjected. “Thank you, all.”
A heavy silence fell, like the one that hangs over a battlefield after the firing has stopped.
“Justice Cartwright?” he said. “How say you?”
CHAPTER 33
5-4, SUPREME COURT DENIES MITCHELL’S MOTION, CLEARING WAY FOR VANDERDAMP SECOND TERM
Justice Cartwright, writing for the majority in denying Mitchell v. Vanderdamp, noted, “In finding for the President, we simply give effect to the principle of popular sovereignty that lies at the heart of our real founding document: ‘We hold these truths to be self-evident… that whenever any Form of Government becomes destructive to these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundations on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.’”
She said to Declan, “When the going gets tough, the scared-shitless quote from the Declaration of Independence.”
“It’s not a bad place to take cover,” Declan said. He had voted in favor of Mitchell (albeit holding his nose), thus Pepper was spared a public racking for having taken the side of her “main squeeze,” as the Chief Justice of the Supreme Court was now often referred to in the media. Declan added, “I think in some ways, Pep, it’s your own declaration of independence.”
There were demonstrations calling for Pepper’s impeachment outside the Court, and a cascade of death threats. She and Ruthless Richter (who had voted for Mitchell) bonded over this aspect. They started making dollar bets as to whose daily mail would contain more threats and whose security detail was bigger.
Controversial though the ruling was, it was generally conceded that any ruling would have been controversial. There was, too, a sense of relief that the crisis was finally over. Though several senators stood on the floor to denounce the “Imperial Judiciary,” Congress as a body did not take up impeachment.
Less than an hour after the Court issued its ruling, President Vanderdamp appeared on television from the Oval Office. He thanked the Court and resigned the office of the presidency, “effective January nineteenth”-that is, one day before the inauguration. Vice President Schmidtz would become president. The very next day, he would be sworn in again, in front of the whole nation, to serve the term of office that had been granted President Vanderdamp by the Court; becoming, in the process, the first president in history to be sworn in twice on consecutive days.
Within hours of Vanderdamp’s announcement, the Speaker of the House of Representatives and the Majority Leader of the United States Senate-members of different political parties, moreover-appeared together on television to announce that they would introduce legislation calling for a repeal of the Twenty-eighth Amendment. The move was immediately hailed by a majority of the Congress; the bills were expected to pass and go on to the states for ratification. There was a practical reason: the Majority Leader was planning to run for president in four years, and did not relish the idea of going to the trouble only to be barred from having a second term. Democracy has its flaws, but it is (often) self-corrective.
On January 19, Vice President Schmidtz was sworn in, the oath of office administered by Associate Justice Crispus Galavanter, an old friend and golfing buddy. Crispus was a busy man these days. A few weeks later he married Pepper Cartwright and Chief Justice Declan Hardwether in a private ceremony at an “undisclosed location.” The bride was given away by her grandfather.
Terry Mitchell divorced Dexter and married a New York real estate broker specializing in Park Avenue properties. Dexter went to work at a K Street firm lobbying his former colleagues for railroad subsidies.
In the spring, Buddy Bixby debuted his new television prime-time drama, Primera Dama Desesperada, starring Ramona Alvilar. It received mixed reviews but monster ratings.
ACKNOWLEDGMENTS
Thank you, my very dear Justice Jonathan Karp for this, our eighth collaboration. Others who greatly pleased the court: Amanda Urban of ICM; Cary Goldstein of Twelve; Lucy Buckley; John Tierney; Gregory Zorthian; Steve Umin; Harvey-Jane Kowal and Christine Valentine; Professors Thane Rosenbaum and Ben Zipursky of Fordham Law School. A large debt of thanks and a hearty oyez to Dean William Treanor of Fordham Law School, constitutional scholar and gentleman par excellence. And a large Milk-Bone to the Faithful Hound Jake who chased away the squirrels and secured the cone of silence.
ABOUT THE AUTHOR
Christopher Buckley is the author of thirteen books, including Boomsday, Thank You for Smoking, Little Green Men, Remembrance of Things Past, and The Aeneid of Virgil. He received the Thurber Prize for American Humor and the Washington Irving Prize for Literary Excellence. He lives on the Acela train between Washington, DC, and New York City.
***
[1] Widely read gossip page in the New York Post, credited with introducing the neologism “canoodling” (kissing, generally someone other than one’s spouse, in a public venue) into the English language.
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[2] Popular TV shows, respectively about a brutal prison and a tropical island without Starbucks where city dwellers are forced to grow their own arugula.
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[3] A device to attract reporters to a state that they would otherwise never visit; its secondary purpose is to give the media something to report when the candidates whose victory they have been forecasting for months come in second and third, or not at all.
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[4] Neil Armstrong, though you’d probably
already gathered.
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[5] Committee of questioners convened to prepare someone for a tough grilling. Originally devised by Spanish clerics in the fifteenth century.
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[6] The fact that the court was split was not Declan Hardwether’s fault. The Chief Justice has only one vote, like the rest. A divided Court inevitably sends a disturbing signal. But when a Court is unanimous, or nearly so, the country is likelier to go along peacefully with its rulings, no matter how controversial they might seem. Chief Justice Earl Warren famously cajoled his fellow justices into unanimity so that he could say the word “unanimously” when announcing the 1954Brown v. Board of Education ruling abolishing segregation in schools. Warren wanted the country to see that despite internal dissent, the Court had decided to stand together on this vital issue.
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[7] The prosecutor who tries to convince the canonical court that the putative saint was not only not a saint, but someone you would never invite to dinner.
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[8] French term for being slowly pressed to death. Used today to describe waiting for the cable company to arrive.
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[9] Overcompensated and usually self-regarding political functionaries who instruct leaders what to do, based on the biases of a largely uninformed electorate.
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[10] Latin phrase meaning “to stand by things decided,” i.e., let the precedent continue in effect. The full phrase is Stare decisis et non quieta movere. Trans.: “For God’s sake, just leave it.”
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[11] The President is quoting British Prime Minister Margaret Thatcher, who famously said this to President George H. W. Bush after Saddam Hussein invaded Kuwait in 1990. Bush promptly counterinvaded Kuwait, expelling Saddam. Mrs. Thatcher had that effect on men.
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[12] Miskimin was a passenger aboard a plane that was held on the runway at Chicago ’s O’Hare airport for three days over Christmas. She finally took the controls herself while the pilots were playing backgammon with the first-class passengers and flew the plane to Omaha.
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[13] Staying on the bull for the full eight seconds.
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[14] Rodeo cowgirl superstition.
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[15] Four letters, beginning with c.
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[16] Reference to an unfortunate moment in a prior Supreme Court nomination hearing, best not dwelt upon.
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[17] Popular TV series about a hand-wringing liberal U.S. president and his hand-wringing liberal staff; based on the novel Let Freedom Wring.
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[18] To be ratified, an amendment to the U.S. Constitution must be approved by two-thirds votes in the House and Senate and then by three-fourths of the state legislatures.
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[19] Somewhat florid legal term for a prior ruling or law considered likely to be overturned.
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[20] Juvenal: the full quote is “Quis custodiet ipsos custodes,” meaning “Who shall guard the guardians themselves?” Generally invoked when figures in authority make a hash of things.
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[21] The day after the new president is inaugurated on January 20. Until the 1930s, presidents were sworn in on March 4. The new date was chosen by the Congress for the probability of its being frigid and miserable.
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[22] Collective term for the one-seventh of the population of Washington, DC, who opine on political matters on television.
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[23] Untidy, still controversial case involving somewhat confused, largely Jewish, Democratic retirees in Palm Beach who in 2000 voted by mistake for Patrick Buchanan, an anti-Israel Republican, instead of pro- Israel Democrat Al Gore, eventually resulting in the presidency of George (not H.) W. Bush, 9/11, the Iraq War, a 40 percent decline of the U.S. dollar, the subprime mortgage crisis of 2007-2008, a fatal tiger attack at the San Francisco Zoo, and a Nobel Prize for Gore.
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[24] First among equals. Not Juvenal.
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[25] The thing speaks for itself.
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[26] 1896-1969. Venerable senator of the kind now not in abundant supply.
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[27] “To thine own self be true.” Polonius’s advice to his son, Laertes, who, by poisoning the tip of his sword in the climactic duel with Hamlet, does not quite live up to the paternal admonition.
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[28] A play on the book and film Seven Days in May, about an attempted military takeover of the U.S. government, an eventuality that might seem less dire given recent performances by civilian government.
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[29] A sports reference, apparently.
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[30] Still more Latin. “The die is cast.” What Caesar reportedly said after crossing the Rubicon.
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[31] Spanish: rat.
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[32] Two interwoven cloths of different texture.
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[33] Richard Bernstein’s Fordham Law Review article, “The Sleeper Awakes,” a study of the Twenty-seventh Amendment: “Article V sets forth only one limitation on the types of amendments that may be proposed: ‘that no State, without its Consent, shall be deprived of it’s [sic] equal Suffrage in the Senate.’ ”
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[34] “Judicial Review Before Marbury,” Stan. L Rev58 (2005): 455.
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Supreme Courtship Page 25