Katherine approached him, unbuttoning the top of her pleated pants. Killian opened his eyes, and shook his head at her. Her brow lifted, and she halted.
“Sorry. I just don’t think there’s any point.”
Killian’s bad eating had ruined his bowels and made his visits to the bathroom lengthy affairs. After lunch of a BBQ chicken sandwich and fries slathered in ketchup, he struggled in a private stall in the Supreme Court Building, his pants collapsed around his ankles and tiny beads of sweat dotting his brow, wondering if his failed attempt at lovemaking had crossed the threshold into sin, at least enough to warrant confession. He closed his eyes and visualized the dark blue cover and chunky, golden font of the Baltimore Catechism No. 3, which he had memorized entirely by the age of 12. That stable and true document of Catholic doctrine, although abandoned as a teaching text by primary schools post-Vatican II, contained lessons that Killian still considered the cornerstone of his spiritual education. To quote Father Corrigan from sixth grade: It behooves a good Catholic to know the text by heart.
With the formidable power of his memory, Killian tested himself on the toilet. He skimmed Lesson 19 (On Confession) for relevant phrases, recalling question #209: What sins are we bound to confess?, which he intoned in a gravelly voice. He cleared his throat and answered with the same bold earnestness he had expressed as a child: “We are bound to confess all our mortal sins, but it is well also to confess our venial sins.” Pretty clever to remember both the unusual grammar of the dependent clause and the Catechism’s unexpected use of the word also.
But was his sin with Katherine Kirsch mortal or venial? It was mortal, of course—a willful turning from God. Then again, a good lawyer might argue it was only a venial sin, since the act itself had been left unconsummated. Ah, the rabbit hole of pedantry, curse of a lawyerly mind. He had transgressed in one manner or another; that was the point. The Catechism was clear that either sin required confession. He resolved to drop by the Church of the Immaculate Conception near his house in Northern Virginia on his way home that evening.
His intestines whined and rolled. He scrunched his face and contracted his abdominal muscles, pressing a sweaty hand against the wall for support, trying to coax his bowels into some reasonable semblance of peristalsis. Nothing coming. He huffed, caught his breath, tried and failed once more. Killian grumbled curses, dabbed his forehead with a folded piece of toilet paper and resolved to wait it out.
“What must we do to receive the sacrament of penance worthily?” Killian recited the catechism with flushed cheeks, shifting his weight from left to right to prevent his legs from falling asleep. “To receive the sacrament of penance worthily we must: examine our conscience; be sorry for our sins; have the firm purpose of not sinning again; confess our sins to the priest; be willing to perform the penance the priest gives us.” He mopped his brow, worried that his aorta would burst from the strenuous effort. “Please Lord grant me penance in the form of a good bowel movement.”
That question about penance had arisen spontaneously, but he must have read or seen it not long ago, certainly more recently than third-grade Catechism class with Father O’Hagen. Maybe his last conversation with Katherine? He had mentioned the importance of the Baltimore Catechism to his spiritual development, and yes, she had wanted to see a portion of the significant text. When they looked it up online, Katherine arbitrarily clicked lesson 29, question 384—that one about penance—and he read it aloud to her.
“You’re supposed to recite it clearly.” Killian had hovered over her seat, savoring the residual tang of her passion fruit–scented shampoo. “So you can memorize it, word for word.”
“Really? That precisely?”
“It’s the official doctrine of the Catholic belief.”
“That’s intense.”
He found her surprise astonishing. Didn’t Katherine also believe important text should be memorized? Killian had always assumed that a Curator of Manuscripts at the Folger Library would share his positivist approach to the written word. But maybe Katherine did not hold his same reverence for text. It made him want to interrogate her suspect epistemology, though he was wise enough to attack her in a roundabout manner. He changed the topic of conversation from the Baltimore Catechism to Timon of Athens and the authorship questions surrounding that play—how some scholars claim Thomas Middleton wrote scenes, while others say the incomplete pentameter and bad rhyming schemes indicate an incomplete work, a last-minute addition to the Folio, printed from Shakespeare’s first draft. He tried to bait Katherine into declaring something affirmative about historicism, how the play’s shaky history influenced the value or meaning of its words. Killian longed to defend his belief that any text had to be assessed by its own artistic merits, outside the context of its history or composition, without respect to authorial intent or to its cultural, economic and political circumstances, and certainly without regard to any particular reader’s idiosyncratic feelings and passions. First draft or finished version, it didn’t matter: the text was the text. It was something that his father, Malachi Quinn, would have said to his classes at Emmanuel College when introducing students to the ideas of New Criticism. Actually, it was something Malachi had said and written on countless occasions, while sitting at the dinner table or in his comprehensive studies of Irish poetry. Killian agreed with his father entirely, then and now. New Critics had it right.
But Katherine refused to take any affirming stance on historicism. Killian tried to lure her into confessing her adherence to one of the other literary theories—deconstruction and post-structuralism; feminism, Marxism or post-colonialism; psychoanalysis and queer theory. He would attack any of those as morally relativistic. He would tell her that Timon of Athens, like the U.S. Constitution, meant what it said plainly, that it was impossible to interpret any of its passages consistently if one refused to let its terms retain their clear meanings. He had prepared a whole speech on how it doesn’t matter what the so-called purpose of a text might have been way back when it was written, or what the perceived intention of its author (or authors) might have been—as if that could ever really be known! “The text is what it is,” he had wanted to scream at her.
Again Katherine refused to take his bait. He peppered her with leading questions about the play, and about her implicit preferences in literary theory, but her replies remained bland and noncommittal. She didn’t seem to care too deeply about the theoretical status of text, didn’t mind if Timon of Athens was jointly written by Shakespeare and Middleton or by Popeye and Olive Oyl, and she even indicated that all literary theories were more or less palatable, including Killian’s own version of constitutional originalism. People had all sorts of reasons for believing what they believed, she stated, and that while she found it enjoyable and valuable to preserve rare manuscripts, and exciting to enable others to reencounter them at the Folger, mostly she felt that it was okay for some people to have a sacred relationship to text while others maintained a skeptical or critical one. Both stances seemed worthwhile and productive. And when Killian asked how in heaven, with all that aimless apathy, Katherine could have started down the path of a literary profession—“I mean, the whole point of your job,” he had barked, “is to preserve and value text”—she replied with her considerable self-assurance, that it had been a pragmatic choice: the students and professors at her college who studied Shakespeare were more quirky and interesting than the boring kids she hung out with in her dorm.
“How can you say that!” Killian was far more irked than he should have been. “Only idiots don’t have opinions, and you, Katherine, are no idiot!”
Now, stuck on the toilet, Killian channeled that recalled fury into the contraction of his abdominal muscles, which unrolled a ribbon of stool into the water beneath him. “Lord Almighty.” He grunted, held his breath and pushed again, allowing another marginally satisfying voidance of his bowel. It was a nightmare, struggling so, in the U.S. Supreme Court’s absurdly marbled, Athenian temple of a john.
&nbs
p; He took a break from all that pushing to catch his breath. Sometimes Katherine could be so exasperating. Her opinion on textual matters was clear and lucid—value-neutral, yes, but perfectly valid—and that made him angry. In fact, his anger had kept him away from Katherine for four long months. Was that why he had avoided her? Had he been punishing her for resisting the foundation of his jurisprudence? His face grew hot at the thought. But it was true. It was vital that Katherine agreed with him, even more than it was vital for the other justices to agree with him, although they, of course, had much more influence on his professional success; their agreement alone would lead to the widespread adoption of his textual theory. Oh yes, it mattered! The world could never be at peace unless Katherine Kirsch understood the proper role of text. “Text exists, Katherine,” Killian mumbled inside his bathroom stall, “and so it very much matters that you are there to interpret it correctly.”
But what was the question that Killian had read on the computer in Katherine’s office that he felt so desperate for her to interpret correctly? How a person must receive his penance. He must be sorry for his sins. He must have the firm purpose of not sinning again.
So there. He was a hypocrite. Katherine had always known it.
Killian finished in the toilet as well he could, and began working his way through the roll of toilet paper. If the public knew about his hypocrisy, they would crucify him. They would disregard his writings and his opinions, all those reams of text he had generated so precisely, with the dream that future justices would someday understand both his argument and methodology. Gone, his philosophy: that text should be read at face value, positively, without projecting personal beliefs or preferences onto it, without assuming anything beyond what’s marked on the paper, plain and simple. They would delight at any excuse to throw it all away, Killian’s entire jurisprudence, and with it any chance for the law to grow in dignity and meaning, and provide stability to human life. And why would I lose it all? thought Killian Quinn. Because I can’t for the life of me keep my pecker in my pants. He stood, tossed the last of his soiled paper into the toilet and, with considerable dismay, flushed it all away.
“We’ve got a motion to rehear 06-1172.” Chief Justice Eberly sighed, removed his glasses and polished the lenses with his tie. “This Subic Bay case is back on the discuss list, folks, so let’s get it over with. I, for one, have a few words before we vote.”
Charles had dropped the usual formality of his leadership role, which could only mean he was angry, and that he didn’t want a belabored discussion of Al-Tounsi. Although it was tempting to spur on the Chief’s rage by muttering, “Go on, Charles! Go get ’em!,” instead Killian sat back listening, rubbing his belly in silence.
The Chief returned his glasses to his face and leaned on his armrest. “I trust we’re not such a pusillanimous Court as to change our mind on a cert decision because of some hasty declaration composed by the lawyers of an aberrant colonel. Reversing cert would not foster any confidence in this Court whatsoever. That is just not what we do. At this juncture, it would be a great disservice, both to our stature and the country.”
Gideon Rosen, who started fidgeting as soon as Eberly mentioned the case, shot an inquisitive glance down the table at Talos Katsakis. Killian caught the slip, but Talos seemed immune to Rosen’s scrutiny, or at least had made the choice to remain expressionless. Katsakis must not have told anyone his thoughts on the vote. And Gideon was clearly insecure, which could only be a sign that the case was still unresolved. If the Inge declaration hadn’t convinced Katsakis to switch, then Justice Davidson would most likely not change his vote either. No way that old rascal would grant an important case cert if he were certain to lose it.
“Anyone else?”
When it was clear that none of the senior members had anything to add, Gideon raised a finger. Eberly nodded his permission.
“Colonel Inge’s declaration has got to be one of the worst rebukes ever laid on an executive claim. It is now abundantly clear to us that the CSRT procedures used in Subic are subpar at best, unconstitutional at worst. This should throw into serious doubt the assertion that any of the MCA-mandated procedures are an adequate habeas substitute. Now, we might end up agreeing or disagreeing on whether these detainees are entitled to a habeas substitute, but to declare we have no right to even ask the question, after this, well that’s just no longer a valid position to take.”
“We haven’t reversed on cert in sixty years, Gideon.” Justice Bryce’s tone was harsh and scolding. “Sixty years.”
“We haven’t had a declaration like this one laid before us either.” Without glancing at Katsakis, although surely fighting the desire to do so, Gideon added: “A declaration that’s obliterated this country’s legitimacy in the eyes of the world.”
Killian fought off the urge to roll with laughter. Shameless Gideon Rosen, going all the way, picking and choosing the exact words to most inflame Talos. Justice Katsakis, for his part, stirred his mug of milky coffee and ignored his colleague’s bait.
“Anyone else?” Charles glanced around the Conference Room. “Or can we vote on this thing?”
“Let’s vote,” said Sarah Kolmann.
“All right. I vote to deny. Bernhard?”
The old man shook his head and drummed his fingers on the table. He must have not known which side Katsakis would take, so he was stuck out on a limb, at the far end of the conference table, having to make up his mind without the benefit of knowing the others’ votes.
“Deny,” Justice Davidson whispered.
Gideon groaned and shielded his eyes with his hand.
“Killian, your turn.”
Killian had never really doubted his vote. Still, as always, he had done his due diligence. He had decided to gather his clerks in chambers after lunch to discuss Al-Tounsi one final time, just before the buzzer rang to summon him to conference. When he had asked for their opinions, his clerks regurgitated all the known arguments for denying cert. “The question of whether or not detainees are receiving an adequate substitute for habeas is not even worth asking,” Isaac Marks declared, “since they have no such habeas rights under the Constitution or common law.” “And even if that question was worth asking,” Alexa Ruff added, “none of the MCA-mandated procedures have run their full course, which makes it grossly premature for the Court to rule on their constitutionality. The Department of Justice and the American people first need to be given the opportunity to see how the procedures actually function.” “You shouldn’t give that traitor Inge any credibility,” added Martin Croll.
Killian agreed with them, of course. He shuffled his clerks out of his chambers, patted their backs and complimented their sage thinking, and then sat in his chair, waiting for the buzzer, stewing in anger at Colonel Inge and his superior officer, Rear Admiral Bonairre. Or course, this debacle wasn’t only the fault of the naval officers at Subic Bay. It had also been caused by President Shaw, Vice President Bloomfield, and Secretary of Defense Garfield, all of whom should have known better, who should have monitored the CSRT procedures and kept them fair, who should have extracted their heads from the rank darkness of their own asses. Killian knew all three men quite well—Secretary Garfield, in particular, was a good friend, hunting partner, fellow New York strip loin consumer, and occasional companion to the Congressional Country Club, where the two of them knocked their blasted little white balls into every water or sand trap that Robert Trent Jones had planted around that devious course. Killian had not been particularly surprised by the President’s irresponsibility. Mark Shaw was an idiot, frankly, more like an insecure actor playing the role of President than the thing itself: well meaning, ideologically sound, hoping to do some good, but far too preoccupied with his mountain biking, vocal classes, and personal relationship with the Lord to keep track of any of the mundane procedures used to process terrorists in the Philippine Naval Base. Secretary Garfield and Vice President Bloomfield, however, were no such idiots. They were seasoned soldiers in a multi-gene
rational battle for expanded executive power. Their authority, like Killian’s, stretched all the way back to the Nixon era, to an administration in which each of them had held a significant post. Both Garfield and Bloomfield knew exactly how important the MCA-mandated CSRT procedures were to the legitimacy of their argument. They had no right to drop the ball. Killian was so furious with their oversight that he was half-tempted to pick up the phone, call Secretary Garfield at his Pentagon office, and tell the man to get his act together, despite knowing that such a call to a high-profile member of the executive branch, if anyone found out about it, would be magnified into a national controversy that would force Justice Quinn into recusing himself from Al-Tounsi and any other Subic Bay cases that rose to the Court. But there was another, less toxic option that Killian could also pursue, he realized, as he sat in chambers, waiting for the buzzer. He could vote to grant cert. He could say that Justice Rosen was now correct, that the Inge declaration was indeed an affront that made the key question of an adequate substitute for habeas unavoidable, and that the Court had no choice now but to hear Al-Tounsi. It would shock his colleagues, sure, but more importantly it would be equivalent to publicly scolding President Shaw, Vice President Bloomfield and Secretary Garfield; it would be the same as telling them to clean up their acts fast, and it would do so while avoiding the gross inappropriateness of a telephone call. Voting to grant cert didn’t mean that Killian had to side with the petitioners in the end. He would vote for the government, of course, when it came down to the actual case. But his cert vote might be the jolt that this administration needed. It might do a world of good.
Killian was still considering the possibility of switching his vote to “grant” when the conference began. He ruminated all through the justices’ handshakes and the opening procedures, and even as Eberly and Davidson voted to deny Al-Tounsi. No one around the table had any idea just how close he was to astonishing them. It was a delightful feeling, really, to be this unexpected kingmaker, and he treasured his secret right up to the moment when he had to declare his vote.
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