Protect and Defend

by Richard North Patterson

  “If she meant to give Gage nothing,” Clayton observed, “she succeeded brilliantly. How do you suppose they’ll rule?”

  Kerry stood. “There are two votes with Montgomery,” he ventured, “and three, I think, with Steele. The others didn’t tell me much.”

  “You should hope they’re in Steele’s pocket, Kerry. That could be the best for all of us.”

  The President did not answer. Instead he drifted to the window, gazing out at the grass lit faintly by pale winter sun.

  After a time, Clayton, the only person besides Lara who would feel comfortable asking, inquired what the President was thinking.

  For some moments Kerry did not answer. Then, quite softly, he said, “I was recalling why I have such mixed feelings about all this. And wondering about Caroline’s.”

  ELEVEN

  THE CONFERENCE room dated to the 1930s and had a stark and disconcerting authoritarian aspect, emphasized by gilded plaster eagles on the wall and—to Caroline’s continuing amazement—swastika-like emblems in the labyrinthine pattern of the ceiling. The effect was ascetic and austere: in the harsh lighting from recessed cans, the eleven judges sat around a long walnut oval, resembling, but for the presence of two women, a conclave of monastics. Their expressions were as grave: all of them must guess, as Caroline did, that the court was closely divided, each vote potentially fateful.

  The process was fixed by long tradition. The judges would speak in order of their arrival on the court, from the most junior to the highest in seniority, with the chief judge speaking last. The result of these exchanges was a preliminary vote which, if it held, entitled the senior judge in the majority to write a draft opinion, or assign the opinion to another who concurred. The author of the opinion would circulate the draft for review and, should it still command a majority, the court would issue it as written or as modified. The author’s name appeared beneath the caption; as with most judges, Caroline took great pride in the cogency of her writings, the body of decisions which reflected her life in the law.

  Schooled in patience by necessity, Caroline had come to enjoy the process, from the clash of argument to the slower pace of reconciliation and refinement. But today was different. The case was an emergency, made so by the state of Mary Ann Tierney’s pregnancy—the inflammatory element which had focused national attention on this room, and on Caroline’s vote. Within forty-eight hours the court would issue its opinion to an explosion of headlines and a cacophony of newsbreaks, and both the fate of the fetus, and of Caroline’s nomination, might be sealed. As they waited for the Chief Judge to begin their ritual, her colleagues’ body language was repressed, their glances at Caroline more covert.

  “Well,” said Sam Harker dryly, “here we are.” Turning to the most junior judge, he said, “Mary?”

  Mary Wells—blond, trim, and a Democratic appointee— was noted for her brevity and, with only a year on the court, her deference. “This is a hard one,” she said. “But it illustrates the problem with drawing narrow rules restricting medical decisions, then taking those decisions out of the hands of doctors.

  “Because the physical health exception is too narrow, the problems it creates are too broad. The fact that we’re quarreling about whether a chance of infertility is one percent, or five, suggests that. What’s enough—ten percent, or twenty? And who decides?” Wells paused, glancing at her notes, less to review her conclusion than to find the resolve to speak it. “The act unduly burdens the right to an abortion found in Roe and Casey. To me, it’s unconstitutional as to Mary Ann Tierney, and on its face.”

  Caroline felt a tingle of anticipatory tension. Though Mary’s opinion did not surprise her, her incisiveness did—to throw out the Protection of Life Act altogether was the boldest and broadest ruling. Mary had shaped the discussion which would follow, laying down a marker for the others. Across from Caroline, Lane Steele, too, looked tense.

  “José?” Sam Harker asked.

  Next to Mary Wells, José Suarez gathered himself. A lawyer from Phoenix, José had been passed over in Caroline’s favor four years prior, and his accustomed courtesy toward her did not entirely conceal his resentment. In this case, José was a puzzle: though inclined toward women’s rights, he was a devout Catholic, and his ambivalence was apparent.

  “I would not sweep so broadly,” José began with care. “I’m concerned with Ms. Tierney’s well-being, but also with invalidating an act of Congress which has the salutary purpose of protecting a viable fetus.” Turning to Mary Wells, he said, “I’m open to persuasion here. But I think the best way to proceed is by upholding the Protection of Life Act, then interpreting its ‘physical health’ exception to include the risk of infertility. That would give Mary Ann Tierney her abortion.”

  True, Caroline thought. But legally it would be a mess: in trying to make the narrowest ruling—confined to Mary Ann— he was expanding the statute in a way that Congress plainly had never intended. Lane Steele, too, perceived this; he smiled grimly at the table, as if to say that this was no more than he expected from Judge Suarez. The first two votes for Mary Ann Tierney, Caroline thought, lacked a common thread; were Sarah Dash here, she would consider the votes expected, but their differing rationale worrisome.

  “Judge Bernstein?” The Chief Judge spoke the more formal title with added decorum, signaling that Marc Bernstein was the only judge present whom Sam Harker truly loathed. Harker was not alone. In Bernstein’s view, a razor-sharp mind licensed him to be acerbic: with the exception of Lane Steele, his dissents had derided the intellect of every conservative at this table, as well as that of most others present.

  “Congress,” he began in clear rebuke of José Suarez, “may not know what it’s doing. But it surely meant for Mary Ann Tierney to have this baby if her parents want her to.

  “This is an anti-abortion statute, dressed up in deceptive platitudes like ‘bringing our families closer.’ So let’s treat it like what it is, instead of rewriting it so we can pretend it’s something else.” Pausing, he spoke to Caroline, as if to challenge her. “Congress is practicing medicine—badly. And all this rapture about ‘family’ defies reality. This law is unconstitutional, and has to go.”

  It was, Caroline conceded to herself, a reasonably succinct— if one-sided—condemnation of the social policy which underlay the act. But it was short on law, and long on ego: effectively Marc Bernstein was asking Caroline, whom he acknowledged as his equal in intelligence, to match him in clarity and courage. The fact that this might doom her as Chief Justice no doubt accounted for Bernstein’s edgy smile.

  “Caroline?” Sam Harker’s voice was tentative. “Your turn.”

  Ignoring Bernstein, she turned to the Chief Judge, feeling her colleagues’ stares. It was not every day, she supposed, that they could observe a Supreme Court nominee teetering on the precipice.

  In a tight voice that embarrassed her, Caroline said simply, “I’ll pass for now, Sam. I’d like to hear more.”

  At once, Lane Steele jerked his head up, eyes bright, mouth forming a skeptical smile. “Pass? Surely, Caroline, you can favor us with some thoughts.”

  The inquiry was made more scathing by what the others knew of her—that she almost always enjoyed the chance to persuade, and came with her arguments carefully marshaled. Caroline felt herself flush; restraining her pride even as she recalled Blair Montgomery’s warning, she instinctively made a chess move, though to what end she was not sure. “Oh, I have thoughts, Lane. Several. What I can tell you now is that I’m very interested in what José had to say.”

  Down the table, Suarez looked surprised at this implicit compliment, then pleased. Lane Steele—far more guileful— studied her with open skepticism, as though to divine what her strategy might be. But Steele had little time to wonder: in the order of seniority, the conservatives’ turn to speak had come.

  This, Caroline knew, reflected one of the ironies of life as a federal judge. The eleven judges in this room were, in theory, impartial and nonpolitical. But they
were appointed by a president with the concurrence of his party and the interest groups which supported it. With exceptions, Caroline’s colleagues represented, in geologic layers of seniority, whether the administration which had appointed them had been Democratic or Republican.

  Almost uniformly, Democratic politicians favored abortion rights; overwhelmingly, their Republican counterparts upheld the rights of the unborn. This divide had seeped into the courts, and now would decide the fate of Mary Ann Tierney under a statute designed to unify the Republicans in Congress and—because even many advocates of choice considered parental consent benign, and late-term abortion distasteful—to divide their Democratic rivals. Now the moment to speak had passed to four judges appointed by Republicans: the most senior, and their leader, was Lane Steele, who knew full well how loudly their decision would reverberate in the Senate, which had passed the Protection of Life Act, and which would vote on Caroline Masters.

  “Your turn, Carl,” the Chief Judge told Judge Klopfer.

  Breaking from his scrutiny of Caroline, Carl Klopfer said flatly, “I concurred with Lane’s original decision. I still do. So I’ll defer to him.”

  On a legal pad, the Chief Judge marked this down. Three to one for Mary Ann Tierney, Caroline thought, though José Suarez was shaky.

  The next two Republicans—Mills Roberts and Joe Polanski—fell in line with Steele. The vote now stood three to three.

  “Lane?” Sam Harker asked.

  Steele arranged the sheets before him, the bones of his argument. But it was clear he did not need them.

  “This statute,” he said bluntly, “is constitutional, and to overturn it is to overstep our bounds.

  “Roe is a sloppy exercise in judicial legislation, expanding an amorphous ‘right to privacy’ found nowhere in the Bill of Rights. But even under Roe, Congress can regulate the abortion of a viable fetus.

  “That’s what Congress did here. That’s how democracy works; if the people don’t like the law, they can petition Congress to change it.” His tone sharpened. “Congress—not the judiciary, in our self-appointed role as philosopher kings. ‘Unwise’—even if you think that’s what this law is—does not mean ‘unconstitutional.’

  “‘Unconstitutional’ is not even a question here: the law provides exceptions for life and physical health, while ‘mental health’ is so amorphous that it means abortion on demand. Which even Roe and Casey conclude is inappropriate after a fetus—like Mary Ann Tierney’s fetus—becomes viable.”

  Caroline listened with respect: at his best, as now, Steele was arresting and persuasive. But at the end of the table, Blair Montgomery stared at the wall, concealing his distaste behind indifference.

  “As for ‘unwise,’” Steele continued, “that’s a matter of social policy, not law. But I personally think the policy a salutary one, as personified by the Tierney family. A girl whose sense of social history extends to the erection of the latest shopping mall should not compel us to further sanction a taking of life—which if it occurred in a camp, and not one-by-one in the privacy of abortion clinics, would be perceived for what it is: a holocaust.

  “If that’s the right to privacy, we should have none of it.”

  Abruptly, Steele was silent. Two of his compatriots nodded; a moment passed, and then the Chief Judge wrote down the vote. It was four to three against Mary Ann Tierney, and in favor of the law.

  “Franklin,” Sam Harker said wryly to Judge Webb, “care to follow that?”

  The touch of humor was surely an attempt to lighten an increasing division, but might also, in its tacit compliment to Lane Steele, be a clue to the Chief Judge’s leanings. If so, Caroline reflected, Mary Ann was one vote from defeat.

  Franklin Webb, a grizzled African American and the appointee of a Democrat, returned the Chief Judge’s smile. “I was thinking about fishing,” he answered. “Salmon, mostly. Or rainbow trout.”

  This mild pleasantry elicited perfunctory and nervous laughter, which neither Caroline nor Steele joined. “As soon as we finish here,” the Chief Judge responded, “you’re free to go. But first you have to vote.”

  “Oh, that.” Webb furrowed his brow. “I’m torn, frankly. I’ve got some sympathy for Ms. Tierney’s position, and also for Lane’s argument that we’re not the legislature—or God.

  “José has pointed one way out. Another is to find the statute unconstitutional as to Mary Ann Tierney—because it ignores a proven risk of infertility to her—but not to throw the whole thing out for every girl in every circumstance.

  “That leaves the law in place, and Congress free to address the infertility question if it wishes.” Glancing at Caroline, Webb smiled again. “I think our pals on the Supremes will appreciate our restraint. They’re as divided as we are.”

  Sam Harker nodded. “Is that where you sit?” he asked.

  “Yup. At least for now.”

  Though skimpy on analysis, Caroline thought, the proposal reflected one of Franklin Webb’s many virtues—pragmatism. But this piecemeal approach would leave the law, and those affected by it, in confusion.

  Nonetheless, Mary Ann had gained a vote, however tenuous, and the count was four to four. But the votes against her were firm: two of those for her were wobbly and too inconsistent in their reasoning to support a consensus opinion. That left three judges: Blair Montgomery, the Chief Judge—and Caroline herself.

  “Blair?” the Chief Judge murmured.

  Leaning forward, Montgomery addressed Franklin Webb. “I appreciate your concerns, Franklin. But you’d also leave some basic principles unclear. Let me suggest a few.”

  Though strained with age, Montgomery’s voice was firm. “I’ll start with the right to privacy. Here“—Blair glanced at Steele—“I disagree with Lane.

  “There is a right to privacy, and the fact that the Bill of Rights doesn’t contain those exact three words ignores the obvious.” Pausing, Blair’s tone became harder. “There are some places the government doesn’t belong. Because if a court can order a minor to have a severely defective fetus—at whatever risk to her—it can order her to abort one. And none of us believes in that.

  “Lane would tell us that there’s a difference—the government can protect ‘life,’ not take it. But at what cost? The Bill of Rights doesn’t say the government can’t sterilize minor girls at will, and yet we know they can’t. So why, in an area as private as this girl’s reproductive capacity, can the government place her fertility at risk against her will?”

  Despite her apprehension, Caroline repressed a smile: whether one agreed with Blair Montgomery or not, his power to provoke fresh thought remained undiminished. She sensed the waverers listening closely.

  “The government should not do so,” Blair continued. “And a statute which requires that will impinge on a host of other judgments better left to girls and their doctors.

  “Not, I might add, to their parents. Healthy families may have many virtues, but Congress can’t create them. Let alone convert an abusive family into the Brady bunch.” With an ironic smile, Blair turned to Lane Steele. “As for Professor Tierney’s manifest virtues, Lane, they lie in the area of moral debate. But it is possible that moral passions can blind the best man to injustice—even one right under his nose. The fact that a different father might perceive that suggests how arbitrary this statute really is. And why it can’t be saved.”

  Caroline watched Steele’s jaw tighten. The vote stood at five to four in favor of Mary Ann, with the Chief Judge coming next.

  “Well,” Sam Harker said with real humility. “This is a hard one, the kind I’ve gotten too old to enjoy. Especially when what I remember most clearly are my mistakes.

  “But,” he continued in a reluctant tone, “I’m forced to agree with Lane.

  “We can’t function as a legislature. If there are anomalies, they should be addressed by Congress. That’s my bottom line.”

  And so it was, Caroline thought. Sam Harker was a man of kind intentions, but no one had ever accused him of
profundity.

  Now it was down to Caroline.

  Around the table, the others faced her. She felt her heart beating faster.

  She took a sip of water, then turned to José Suarez. “Where do you sit, José? In cement, or on the fence?”

  Suarez gave her a prim smile. “I’m Don Quixote,” he answered, “in search of an honest compromise.”

  Caroline nodded, facing Franklin Webb. “What about you, Franklin?”

  Amidst the general nervousness, Webb summoned a smile. “Still on the fence,” he said. “Hoping I don’t fall and crack my skull.”

  No help there. In the end, what happened would be her doing. As she had always suspected.

  Caroline inhaled. “Here’s the problem,” she said to Webb and Suarez. “At least as I see it.

  “The two of you are trying to save the statute on a very narrow point—by ‘clarifying,’ or by rejecting, a specific requirement drafted to be more stringent: a ‘substantial risk to physical health.’ But that won’t become the consensus of this court. We have five judges supporting the law as written, and three who say there’s no way to fix it on several different grounds. And even Franklin believes there’s no way to fix it when it comes to Mary Ann.”

  Nodding, Webb acknowledged this reality, while José Suarez regarded her with apparent suspicion. “And so?” Suarez asked.

  “And so,” Caroline answered, “if we’re going to have a majority opinion, one or both of you will have to decide which approach you’re least unhappy with: Blair Montgomery’s or Lane Steele’s. Otherwise, we’ll have one of those messes the current Supreme Court is becoming famous for—a plurality opinion, with so many conflicting voices that, while Mary Ann Tierney either wins or loses, going forward no one else will know what we’ve really said. And, therefore, what the law is.”

  At this, Franklin Webb leaned forward, eyes alight with curiosity. Across the table, Caroline saw Lane Steele tensing.

  “True enough,” Webb told her. “But if you’re voting with Lane, our two lousy little votes won’t matter. There would be six votes in favor of the law and against Ms. Tierney, and I really can go fishing.”