Protect and Defend

by Richard North Patterson

  Next to Sarah, Mary Ann closed her eyes. In the silent courtroom, Martin Tierney bowed his head. “God help her,” he repeated with prayerful softness. “Because Sarah Dash cannot help her then. Nor, I fear, can we.”

  THIRTY-FIVE

  KERRY KILCANNON was picking up the telephone when his secretary appeared in the door to the Oval Office. “Clayton just buzzed me, Mr. President. The judge is announcing his decision.”

  Kerry put down the phone. “Where are they?” he asked.

  “The small conference room.”

  Kerry hurried through the corridors, creating the stir of excitement—raised heads, faces gazing out from offices— that now attended his smallest movement. Entering the conference room, Kerry found Clayton Slade, Adam Shaw, and Kit Pace watching a television placed on the lacquered table. On the screen, Patrick Leary was taking the bench.

  “Any bets?” Kerry asked.

  “One,” Kit answered. “The ratings will be the highest since the O.J. verdict, and half the country will go nuts.”

  “Which half?”

  “The pro-choicers,” Clayton opined. “This judge isn’t dumping on Mom and Dad.”

  That was right, Kerry guessed. He had begun as a lawyer, prosecuting tough domestic violence cases, and had developed an unerring knack for reading both judges and juries; his long-distance sense of Patrick Leary was one of patrimony, a reflexive belief in the wisdom of fathers. “Just as well,” Adam observed. “For us, the less controversy, the better.”

  Kerry sat beside Kit. The group fell silent; across the country, he supposed, similar scenes were occurring—clusters of people who, their emotions aroused by the trial, now awaited its resolution. Kerry’s own tension surprised him.

  “This case,” Patrick Leary began, “confronts the court with painful choices …”

  For once, Sarah thought, Leary seemed daunted by his power to change lives; he did not preen, and his voice was dry and scratchy. Taut, Sarah felt Mary Ann’s fingers slip into hers.

  Across from them, Martin Tierney watched the judge with a rigid intensity. However complex his motives, Sarah guessed, for Tierney this moment had a stark simplicity—life or death for his grandson. Her fingers tightened around Mary Ann’s.

  “In the Protection of Life Act,” Leary continued, “Congress faced the difficult task of balancing our interest in protecting unborn life against the right of the mother to protect her own life and physical health.

  “To this delicate equation they added a separate but central concern: fostering our societal interest in parental involvement …”

  Sarah did not like the sound of this; Leary’s framing of the issues sounded too deferential to Congress, too sympathetic to the Tierneys. Reading from the text, Leary paused but did not look up.

  “After the deepest consideration,” he announced, “this court finds the following:

  “First, that the Protection of Life Act does not abridge Roe v. Wade.

  “Second, that the potential harm to the plaintiff does not involve a ‘substantial risk’ to ‘life or physical health’ …”

  “No,” Mary Ann whispered. “No.”

  “Third,” the judge concluded, “that Martin and Margaret Tierney personify the wisdom of Congress in mandating parental involvement …”

  “Shit,” Kit murmured.

  Among the four of them, Clayton realized, it was the first expression of partisanship. Staring at the television, Kerry said nothing.

  “It would be the height of arrogance,” Leary proclaimed from the screen, “to substitute our judgment for theirs …”

  “Boilerplate,” Adam Shaw remarked. “Mom, Dad, and apple pie.”

  “Maybe,” Clayton answered. “But they’ll question Caroline about every line, as if it were chiseled in marble.” Turning to Kit, he added, “We’ll need some boilerplate of our own.”

  “The ‘rule of law’?” she answered sardonically. “Or does the President, like all good presidents, believe in ‘letting the judicial process take its course’?”

  “Both,” Clayton rejoined. And then he noticed that Kerry, still silent, had not taken his eyes off the screen.

  PART IV

  THE APPEAL

  ONE

  LOST IN MEMORY, Judge Caroline Masters gazed unseeing at the briefing book in front of her.

  Chad Palmer had kept his word: in three days, her confirmation hearings would begin, and there was still much preparation to complete. But her sister’s call had taken her back to the moment, twenty-seven years before, when she had placed her infant daughter in the arms of Betty’s husband …

  “They’ve been here,” Betty had reported that morning. “The FBI.”

  Her sister’s voice, bitter and accusatory, held an undertone of paranoia. The theme of Betty’s life was dispossession—the death of her own mother; their stern father’s marriage to Nicole Desalliers, the French-Jewish interloper; his preference for their daughter Caroline, bright from infancy and as dark and exotic as Betty was pallid; Betty’s inability to have children of her own. From the moment she became Brett’s mother, Betty had feared that Caroline would somehow reclaim the girl for herself. That this badly misread the stern tenets to which Caroline held herself was indicative of Betty’s inner landscape: to her, Caroline was the embodiment of everything she feared.

  “Of course they came to see you,” Caroline said with a trace of irony. “Besides my niece, you’re my only living relative.”

  “I expected some of this, Caroline. But I don’t like the government crawling all over our personal lives. Let alone the strangers who’ve been poking around town.” Her sister paused. “There must still be people at the college who remember when Larry brought her home …”

  “They don’t know about me,” Caroline interposed. “And I’m who all this is about. I doubt the FBI is heartless enough to inform Brett for no reason that she’s adopted—or that, in itself, her adoption is of any interest to anyone. Although why you choose to deceive her on that point escapes me.”

  Stiffly, Betty responded, “We wanted her to be secure.”

  No, Caroline thought with a certain pity, you wanted someone of your own. “Satisfy my curiosity,” she said. “Precisely what did our father do about a birth certificate?”

  Betty hesitated. “There was a new one issued. On Martha’s Vineyard.”

  “With you and Larry as the birth parents, of course.”

  “Yes.”

  “Then you are.” Caroline felt her irritation yield to compassion. “I’m sorry about your visitors, Betty. But the hearings will be over soon, and so will this …”

  But her sister’s call had touched wounds which had never quite healed and, Caroline knew, never would.

  She looked about her chambers at the trappings of the life she had built: the twenty-foot vaulted ceiling, the stained-glass windows, the elaborately carved marble fireplace. More fundamental were the bound volumes of her legal opinions, carefully crafted and closely reasoned—the best work of Caroline’s heart and intellect.

  She had not thought to make this bargain, a daughter for a life preserved in law books. But with all the rigor of an honest mind, she felt her life a worthy one. And if she became Chief Justice …

  With this, she returned to the briefing book, just before Judge Blair Montgomery appeared.

  By now, even her mentor’s familiar knock, tentative and courteous, evoked fond feelings. When he entered, Caroline looked up from the binder, and smiled.

  “Care to quiz me?” she asked. “I’ve never quite grasped patent law.”

  Blair smiled in return. “Who does? Except, I keep hoping, at least one of my clerks.”

  Caroline waved him to a chair. “Then perhaps you can distract me for a minute.”

  As Blair slowly sat, she examined him; she had begun to accept that she might be moving on, and to hold small moments in her mind. Blair Montgomery was a slight, neat man with white hair and horn-rimmed glasses who, in his mid-seventies, seemed to be shrinking
by the day. But, in Caroline’s estimation, his stature was considerable: appointed by President Ford, he had served on their court for a quarter century, evolving into a staunch defender of personal liberties, lionized and vilified in equal measure.

  Through it all, Blair remained unruffled, a font of kindness to those he liked. Early on, he had seen in Caroline the potential to go further yet, and had used his seniority to win her friends while sparing her his enemies—assigning her opinions where she had the chance to shine, writing the most thorny and controversial decisions himself. Only in private did he vent his deep frustration at what he viewed as their court’s—and the Supreme Court’s—inexorable drift to the right. He would not be troubling her today were not something troubling him.

  “How resourceful,” Blair inquired with some hesitance, “is your former clerk?”

  He did not need to specify which clerk. “Sarah?” Caroline answered. “Very, as I understand she’s made apparent. Why?”

  “Because our friend Lane Steele has hijacked the Tierney appeal.”

  Surprised, Caroline paused to consider the workings of their court. “Steele’s presiding over the emergency motions panel this month?”

  “He is.” Blair’s voice was quiet with disgust. “Ms. Dash moved his panel to expedite the appeal—with the Tierney girl over six months pregnant, she had no choice. Steele generously granted the motion to expedite the appeal, then assigned it to himself.”

  Caroline felt sympathy for Sarah—to have been forced to file her motion before Steele was the worst imaginable luck. “He’ll need an ally,” Caroline noted. “Who else is on the panel?”

  Blair scowled. “Klopfer. And Dunnett. The only question is whether Dunnett has the guts to dissent.”

  Blair was right, Caroline knew at once: a hard-line social conservative, Carl Klopfer was the former attorney general of Oregon, chiefly noted for his crusade to ban “gay literature” from the state’s public libraries. “For Steele,” she agreed, “Klopfer’s a lock. He’ll be agitating to write the opinion.”

  “Not a chance. Our court will express its considered wisdom in yet another jeremiad by Lane Steele.” Blair shook his head in frustration. “He’s running for the Supremes himself, Caroline. He won’t pass up the chance to ingratiate himself with the Senate by transforming Pat Leary’s shallow reasoning and meager prose, and proclaiming the Protection of Life Act the greatest social document since The Federalist Papers.”

  Caroline gave him a thin smile. “Maybe it is, Blair. I’ve done my damnedest not to think about it.”

  For an instant Blair looked curious, then softened his tone. “You’re on the spot, I know—this case is dynamite, politically. I don’t suppose you have a glimmer of what’s running through Ms. Dash’s mind.”

  “None. I never even watched the trial. Did you?”

  “Enough of it. Judge Patrick Leary in Father Knows Best. And now Steele.” Blair folded his hands, gazing at the briefing books on Caroline’s desk. Almost shyly, he added, “Sarah Dash has a time problem—her client could deliver a child at any moment, with whatever risks that may involve. Once Steele shoots her down, she can petition our full court for a rehearing, taking up a couple more precious weeks. Or she can go straight to the Supreme Court. That’s not an easy call.”

  All at once, Caroline perceived her friend’s unstated purpose. She had no doubt that Blair was curious about the potential workings of Sarah Dash’s mind, nor that he sympathized with Mary Ann Tierney and was quietly furious about the course of her appeal. But he was also warning Caroline. Sarah might seek to persuade a majority of the twenty-one active judges to grant her a rehearing en banc—and, if not, Blair might initiate such an effort himself. In either case, Caroline must consider her course of action.

  “If I were Sarah,” Caroline answered, “I’d petition for rehearing. But that would take nerve.”

  Blair smiled faintly. “Yes,” he agreed. “It would.”

  TWO

  ENTERING THE Court of Appeals, Sarah tried to focus on her argument.

  The corridors were jammed with cameras and reporters. Mary Ann remained at Sarah’s apartment, sluggish, despondent, and bloated by the fetus which—despite its probable impairments—kept growing inside her. That she persisted in this appeal was a tribute to her resolve and, as important, a reflection of her fears. But Sarah had discouraged the listless girl from appearing: the ripeness of her pregnancy might unsettle the panel, and Judge Lane Steele would surely dishearten her still more.

  Ignoring the reporters shouting to her, Sarah made her way toward Courtroom Two. On some other day, she would have stopped to savor her return, for she had always believed this one of the most beautiful public buildings in America. With its grand marble columns and vaulted ceilings adorned with sculpted cherubs, intricate mosaics, and classic tracing, its design evoked a Renaissance palazzo, a feeling enhanced by the meticulous craftsmanship of Italian artisans and the opulence of its materials—a rich variety of marbles, mahogany, redwood, bronze, colored venetian glass, and bright porcelain tiles.

  Sarah’s mentor, Caroline Masters, had pointed out each feature. For Caroline, a student of history and a connoisseur of architecture, this grandeur and exuberance expressed the pride and optimism of America on the cusp of the last century. A bit grand, Caroline had wryly added, for twenty-one divided and fractious judges at the beginning of the next. The Ninth Circuit was beset by factions, feuds, and rivalries, that between Blair Montgomery and Lane Steele being the most notorious, and the most rooted in principle. That was Sarah’s problem now.

  When she entered the courtroom, Fleming, Saunders, and Tierney were already there. But there were none of the perfunctory greetings that routinely attended such a moment— the divisions between Sarah and her adversaries were too visceral. Remote and drawn, Martin Tierney bore the deepest wounds of all: since Patrick Leary’s decision, Mary Ann refused to see him.

  Sitting at the appellant’s table, Sarah ignored the phalanx of reporters jammed in the benches to the rear. Courtroom Two was a small gem: the mahogany bench was inlaid with red numidian marble, and the marble walls featured intricate designs and an ornate gold clock. But today the mass of bodies and their cacophony made it feel stifling. Sarah tried to focus on the index cards she had taped to a manila folder, the outline of her argument; for the last time, she reviewed the carefully wrought chain of reasoning which, she hoped, might compete in the other judges’ minds with Steele’s stringent logic.

  “All rise,” the courtroom deputy announced.

  As grim as inquisitors judging a conspiracy of heretics, the three jurists emerged from chambers and took their seats, with Lane Steele in the center, flanked by Klopfer, stolid and sturdy, and Joseph Dunnett, an African American with round, inscrutable features. When Steele looked up at last, it was with a glint over his half-glasses which Sarah recognized very well—the pleasure of a man who, all too often, expressed his emotional needs by asserting his intellectual superiority.

  “Counselor,” he said in a peremptory tone. “You may begin.”

  With trepidation and resolve, Sarah stepped to the podium.

  Sarah had fifteen minutes to open. But she was still arranging her notes when Steele’s voice cracked the silence like a whip.

  “Isn’t it true, Ms. Dash, that the Supreme Court in Casey held that Congress can forbid postviability abortion?”

  Startled, Sarah looked up; though she expected heavy questioning, the usual protocol would allow her at least to commence her argument. “Except,” she amended, “where the mother’s life or health is at risk.”

  “Isn’t that precisely what this statute provides?”

  “Yes, but …”

  “Indeed, this statute is more liberal than that.” Steele was leaning forward now, eyes keen, body taut, voice hectoring. “This statute allows parents, not just the courts, to approve abortion if a doctor believes their child’s health is at risk.”

  “It also allows parents to forbid abortion,
” Sarah answered. “Regardless of the minor’s life or health.”

  “Then she can go to court,” Steele snapped. “The parental consent provision simply gives her an additional path to an abortion. Indeed, couldn’t we delete it altogether, and still have a law consistent with the right to regulate abortion found in Roe and Casey?”

  Apprehensive, Sarah wondered whether Steele would permit her any argument at all. “If a teenage girl’s only recourse,” she rejoined, “is to an abusive parent or a distant court, many will place their lives or health at risk …”

  “Isn’t that their ‘choice,’ counsel?”

  Steele’s tone was ironic, and he gave the word “choice” a disdainful weight. Sarah’s only choice, she abruptly decided, was to give herself freer rein. “Hardly,” she shot back. “A fifteen-year-old doesn’t ‘choose’ to have a brutal father. A fourteen-year-old doesn’t ‘choose’ whether she possesses the courage to go to court. To pretend that these are adults is incorrect …”

  “Precisely,” Steele interjected with muted triumph. “So why are they fit to decide whether to abort a viable fetus?”

  “Because they are facing a threat to themselves, determined by a doctor. They are not free to abort for any reason …”

  “Really? By what higher standard do we judge an amorphous claim of risk to emotional health?” Steele held up his hand, foreclosing Sarah’s answer. “Let me read you the pertinent language from Casey, quote, ‘subsequent to viability, the state can regulate, and even proscribe, abortion except where it is necessary, in appropriate medical judgment, for the preservation of the life and health of the mother,’ unquote.

  “That reads ‘medical judgment’ doesn’t it—not psychological judgment.”

  Inhaling slowly, Sarah steadied herself. “Psychiatrists are doctors, Your Honor, and physical and emotional health are often medically related.” Quickly, she turned her attention to Carl Klopfer. “The phrase ‘medical judgment’ also implies that the judgment should be a doctor’s, not a court’s or parent’s …”