Al-Tounsi

by Anton Piatigorsky

  “Deny,” Killian said, betraying none of his inner debate.

  “Elyse?”

  “I vote to grant cert.”

  “And Talos?”

  Justice Katsakis nodded. “I vote to grant, as well.”

  Elyse Van Cleve gasped—actually went so far as to gasp. Killian laughed, shoulders shaking. So old two-faced Talos had switched after all! Not even Bernhard saw that coming. Gideon stood up, grinning like a fool, but when he realized what he was doing, he sat down again. Bernhard and Sarah fought off smiles as well; Killian caught them looking to each other for support. Justice Bryce murmured in outrage, and shook her head vehemently.

  “Whoo-boy.” Killian wiped the tears of laughter out of his eyes. “Drama on the Court!”

  Charles glared at him, and then quietly asked Talos to confirm his vote, to assure the entire table that he was indeed reversing his previous decision and effectively granting cert to a denied case for the first time in 60 years.

  “Yes. I’m reversing and voting to grant cert.”

  “Fine. Noted.” The Chief Justice retreated into stone-faced professionalism, as if he felt nothing personally about the case whatsoever, and as if Justice Katsakis’s switch had been entirely expected. “Rodney?”

  “I vote to deny.” Rodney was as calm as usual, unfazed by any drama, and his simple answer had the effect of quieting the other justices.

  The remaining justices voted as expected: Rosen and Kolmann to grant cert, Bryce to deny.

  “We have four votes in favor,” intoned Chief Justice Eberly. “We hereby reverse our denial and grant case 06-1172, Al-Tounsi v. Shaw, certiorari for next term.” He kept his voice low and quiet, pretending nothing unusual or historic had just occurred.

  Talos slurped his coffee, hiding a smile behind his mug. So the final decision in this case would, as usual, be Talos Katsakis’s. Killian would have Bryce, Sykes, and Eberly in the government’s corner with him, while Rosen, Davidson, Kolmann and Van Cleve would rule for the detainees. Katsakis was the only vote in play. The Inge declaration had offended him exactly as predicted; it made the U.S. executive look awful. But Talos’s indignity at the initial offense did not ensure his vote on the substantive issues. In the coming months, Killian knew, an army of lawyers for either side would tailor their briefs to that one man’s idiosyncratic jurisprudence. They would all appeal to Talos, which would drive Gideon crazy and mildly amuse everyone else. And although by switching his certiorari vote Talos had indeed indicated his openness to the petitioners’ side—the man was now most likely leaning toward ruling for the detainees—Killian still felt buoyant at the prospect of hearing a powerful case on executive power, the reach of habeas corpus and the breadth of the Suspension clause. It would be exciting. Heck, it already was exciting, the first reversal of a cert decision since the end of World War II. Al-Tounsi would be in all the papers as soon as it was announced.

  And it was of the utmost importance. Non-citizen detainees in Subic Bay should not have access to habeas corpus. If the Court released them via habeas on some technicality, it would be another example of guilty people denying their responsibilities, and then having their denial affirmed by a court of law. And these were not your average guilty men; they were terrorists bent on destroying Western civilization. Granting them habeas would send a message to the millions of people internationally who hated the United States that the country was weak, that terrorists could proceed against it with impunity. And Katherine, dear Katherine, held in his arms, straddled on his lap, would have to understand that there was no room for hypocrisy on this issue. National security was more important than sex. The inherent badness of those detainees’ characters, which was a whole different category of badness than his own or his lover’s, demanded that they embrace their own imprisonments if they wanted any sort of penitence or redemption for their corrupted souls. And if they chose not to embrace it—the most likely scenario—well, then, at least they would be locked up, and put out of commission.

  The conference moved on to another piece of business. As he listened to the next case, Killian decided to work with great effort and passion in the coming year to convince Talos that the detainees must be denied habeas. He would pressure Talos to vote for the government’s side. Killian had good, sound arguments to make; he was right, and he knew it. Yes, the executive branch had screwed up their responsibilities, embarrassed the nation, and launched this sordid case into the Supreme Court, but Justice Quinn could still lead the country out of this mess. He could do the work that President Shaw and his subordinates had failed to accomplish. Al-Tounsi was on the docket, and Killian Quinn would welcome its challenge.

  4

  AD OUT

  Elyse Van Cleve bounced a tennis ball against the gray clay, picturing Venus Williams’s long black arms in place of her stubby white ones. If she could fully visualize those arms as her own, she might harness that great champion’s catapulting service motion. She would leap high off the court with her racquet extended, her arm lithe and strong, and then whip down ferociously on the suspended ball, channeling the power of her youthful muscles and the torque of her sinewy forearm into the sweet spot of her strings, just as Venus did that morning to win her fourth Wimbledon singles title. What did it matter that Justice Van Cleve’s opponents in this amateur doubles match were a couple of septuagenarian ladies from the Amelia National Golf and Country Club, or that their agreed upon spoils were only bragging rights for a week plus a free round of gin-and-tonics on the patio? It didn’t matter that her prize wasn’t as grand as kissing the famed Venus Rosewater Dish of the All England Lawn Tennis and Croquet Club, and holding it high above her head for the flashing cameras. Winning was its own reward. Winning anchored existence. It showed how you had outsmarted and outplayed your opponents, and achieved lasting results. It didn’t matter if anybody witnessed your accomplishment or celebrated it. Past victories provided you with a reservoir of strength for the difficult tasks of the future. Nothing trivial about that. There were only two possible results from this hour-and-a-half competition on the tennis court: victory or defeat. Elyse was going to win.

  Without question, the best way to secure victory was to emulate Venus. While powerful Serena was a better model on most occasions, today would belong to the lithe older sister. Elyse would have to identify with Venus entirely, embodying more than just Venus’s physical power and technical mastery. She meant to inhabit her past, her emotional state—her hard-luck childhood in Compton, her lack of a fancy court and tennis club. It meant imagining that sea of white English faces watching her on Centre Court, wondering if she had enough skill to win this match, and if she had the proper grace and manners to act as a dignified champion. It meant considering not only what it took for Venus to win physically, but also the psychological strength she needed to maintain grace and gratitude in that socially conservative arena. It meant committing herself to transforming the values of people who opposed her success because she was a woman, and black. It meant merging with Venus Williams, becoming one person, if only for a few service games on a tennis court of this Georgian country club.

  Elyse stood on the baseline bouncing her tennis ball. Her legs tensed, and she held her back straight. She threw the ball in the air and cocked her racquet into her spine, but knew right away that she hadn’t tossed it high enough, that she would have to compensate with a quicker swing. Still, she could reach above the ball and drive it down into the service court using Venus’s muscles rather than her own.

  She spun her racquet around, but not as quickly as she had wanted. The ball hit low on her strings and as the jostled composite frame sent vibrations into her hand, it hurled forward without spin and hit the tape along the net. The ball dropped onto her side of the court, and died after a piddling bounce.

  “Drat.”

  She had been too rash. Nowhere near conservative enough for a second serve.

  Justice Van Cleve watched her two elderly opponents in short white skirts switch their relativ
e depths, congratulating each other over the point they had just won. How irritating: their smug satisfaction over such a small win. Not like it took any effort on their part, nothing but crouching for a serve that never came. Oh, they would pay for their conceit, those overconfident old ladies. Elyse retrieved her ball, and returned to the baseline to play the next point in the ad court.

  “Thirty-forty.” She bounced it again. She would throw the ball higher this time. She wouldn’t do anything to defeat herself.

  Elyse blotted out her surroundings, focused solely on the ball. A champion cleared her head for each and every point. Nothing mattered but the present challenge. Forget the sea of faces, ignore Venus’s arms. Venus hadn’t thought of anything when she played that morning. She thought of nothing but the task—a ball suspended in the air, hitting the racquet, twisting down with vicious spin for an ace in the far corner.

  Elyse served without error. The ball hit the center of her strings with a satisfying pop and flew into the deep right side of Laura Elmwood’s court. Although her serve lacked the severe topspin and speed of Venus’s 125-mph wonders, it was still a decent enough facsimile to please her. She crouched for her opponent’s return.

  Laura Elmwood, the strongest player of the quartet, forehanded crosscourt into the alley. Elyse ran to it and hit a weak, backhand shot to her second opponent, the recently widowed Alma Epp—a woman completely incapable of executing a forehand with any topspin, but who at least had decent placement. Alma bobbed as she ran and mishit the ball, lobbing it high above Karen Feldstein, Elyse’s doubles partner. Karen stepped in and volleyed it back, deep to Elmwood’s forehand. Another poor shot, a floater, lacking power. It would be maddening to lose the point on that. Crosscourt, Laura Elmwood, relying on a cheap but effective knee brace, bent low and powered through her next shot, but put too much force on the ball, sailing it above Karen and landing it out, two feet beyond the baseline.

  “Ah, fudge it!” Laura Elmwood swatted angrily at her tennis shoe with the tip of her racquet. “Come on, now!”

  The players reset for deuce. Good, Elyse was working now, and on a roll. She concentrated, tried to repeat the smooth motion of her previous service. Something went off, though. She couldn’t leap as high, and hit a weaker, lobbed serve that was driven hard crosscourt by Alma, and then returned into the net by Karen. The point was lost before she had even settled in.

  Elyse paused. Her racquet felt like it weighed ten pounds. This game was not going according to plan. One more mistake like that and she would lose her serve. She had lacked consistency all day: two of her past three service attempts had been total garbage. Why? She was known among her peers as a serve-and-volley specialist, not one of those grind-’em-out ground strokers. Maybe her energy had been sapped by the oppressive heat of this muggy Saturday afternoon in late July. Truth was it didn’t matter why, results were the same. Facts needed to be faced. Her serve wasn’t going to power her into this match.

  Across the net, Laura Elmwood squatted low with her back curved, bouncing to and fro on the balls of her feet, determined to return the next shot for a winner. But wasn’t there frustration in the vigor of her bounce, the near horizontal angle of her back? An overeager stance? Maybe Laura was angry with herself for hitting the ball too strongly two shots earlier. Maybe she was mumbling quietly, resolving then and there not to make the same mistake twice.

  Laura’s red, hard face resembled Killian Quinn’s in conference, whenever he articulated a furious objection to a controversial decision, one of those cases he lost regularly by a single tentative vote. Maybe Laura was like him. Maybe that comparison with Justice Quinn was the key to defeating her.

  Elyse walked to the net to retrieve the tennis ball, her thoughts speeding, calculating. Killian’s anger tended to ruin his diplomacy and poison his results. Whenever he was overcome by emotion, venom would spit from his pen and lace his writing with sarcastic taunts and jokes, and personal attacks against his colleagues. Like that affirmative action dissent from ’05, the Duke Medical case—his blistering sentence had made national news: I’m sure that nonminority individuals who have been excluded from Duke Medical School by a patently racist policy are thrilled that the less qualified minority students who have usurped their rightful spots are providing the “educational benefit” of “cross-racial understanding” to the school’s future doctors, as if Duke Medical has even been the proper forum for teaching citizens how “we should all get along together,” rather than, say, church class, or the family dinner table, or the neighborhood kindergarten. The public had loved that colorful dissent, but not Elyse. She shook her head in dismay when she read it. So unwise. When Killian wrote like that, he lost cases. How could he forget that the point of these legal exercises was to garner five votes? Killian’s logic was brilliant, his literary skills were without question the most playful and enjoyable of the nine, and he had the intellectual power to switch that crucial fifth vote in the drafting stage of contentious cases, but he just couldn’t maintain his tranquility; he could never tone down the screech in his prose. He was his own worst enemy. And if the comparison of Killian Quinn to Laura Elmwood was accurate, then she would be her own worst enemy, too.

  The key, with Killian, was to play into his anger, and make it worse. You had to set him up to overreact. Elyse had done it so many times in conference, on the bench in argument, and with her carefully chosen phrases in draft opinions, that it was barely conscious. It was pure instinct, like a cat torturing a mouse. She would probably do it again this term, when that big habeas case came up in the winter. Just last week she was joking with Carla about it. Carla had come down from Kentucky for the week, and they had been sipping the mojitos Kevin made so masterfully on the Club patio, and tucking into their Caesar salads. Of course Elyse was careful to speak in veiled terms—never discuss a pending case directly, not even with her trusted sister.

  “Sometimes conference is not so different from riding a horse.” It was a good analogy to use with Carla, who, with her husband, Kenny, owned and managed the Van Cleves’ remote Kentucky horse farm, that rolling Jefferson County compound where Elyse had grown up. “Same thing: reading moods and inflections, what’s going on underneath, and riding that out. I remember with Diablo, I’d always know when to get firm with him or slacken his reins, just by the way he walked or breathed. Whether to dig in and push, or give him room, just by the position of his ears.”

  “Of course.” Carla chomped her crispy bacon. “Every horse is distinct but predictable.”

  “Well, people, too. Even justices of the Supreme Court. You got to watch them for their breathing and gestures. The way they hold their ears.”

  They laughed hard at that one. Whenever Elyse talked with Carla or her brother, Franklin, her accent regressed to its Kentuckian roots.

  “A corral of pinto geldings, the nine of us in that room. All predictable beasts.”

  “Oh, you don’t honestly think that, Elyse.”

  “I swear sometimes that’s what it feels like. Same psychology at play. There’s one case this term coming up—and like all cases these days, it’s going to be determined by Talos’s vote. He’ll decide my way, too—I just know it. Because ultimately it’s not about what he believes—I honestly do think Talos could go either way—or what anyone believes. It’s going to be decided by psychology. Just like horses. It always comes down to psychology. It’s an executive power case. But see, I think the question there is not about constitutional consistency or any firm rule, it’s about certain practicalities, what the situation needs. And when I get around to saying all that in conference, Killian will go wild. He’ll call me wishy-washy, and claim I haven’t got any theoretical center to my reasoning, and that I’m using the same language I would’ve used back in the Kentucky legislature—behaving like a legislator not a judge—which he hates. But then he’ll get carried away and push it too far, see, like saying something about how the executive should never listen to the legislative branch at all. And he’ll yell and
holler in a way that really irks Talos. Beause he’s irresponsible with his words. And that’ll be it. Killian will win the argument in conference, and it’ll looks as if I’m defeated, and he’ll sit back red-faced and passionate and proud, but meanwhile Talos will have just resolved himself against Justice Quinn, yet again. So when it’s time for our opinions, Killian’ll find himself writing a dissent, while I’ll be in the majority again, just like I am 91 percent of the time.”

  “91 percent?” Carla frowned.

  “The Washington Post did a study. I’m in the majority 91 percent of time. More than anyone.”

  “You make it sound like a strategy.”

  “It’s just the way people are, Carla. I know my fellow justices so well now that I can’t stop myself or fight it. You let the horse be the horse, and you ride what they give you.”

  “I can’t believe a man as smart as Killian Quinn hasn’t caught on.”

  “Oh, he’s caught on all right. Just can’t help himself. It’s as if his parents never taught him restraint. He doesn’t have it in him, kind and smart as he is. I find it amazing the way some people are raised. Could you imagine how Mom or Pop would’ve responded if we’d spoken to them like Killian Quinn speaks to everybody, with all his sarcasm and personal insults?”

  “Or to each other. Or to Johnny and Mitch, or any of the stable boys.”

  “Don’t I know it. Not like those two would’ve been fazed by a few of our off-color words.”

  “Pop would’ve beat us.”

  “Absolutely he would’ve, and that’s just for private talk. You imagine how he would’ve come at us had we talked disrespectfully in public, even to the black boys hanging ’round outside Gerry Sangham’s?” Elyse tsk-tsk-ed into her salad.