Gideon smiled, and covered it with his hand. Incredible. That Rodney Sykes would admit there was an I in the room capable of not liking something! Immediately, Gideon’s mind started racing. Was this a possible opening? Rodney had used the word distaste. A very strong distaste—that was the juicy phrase. How could Gideon further degrade the CSRTs for Justice Sykes so that their putridity would grow stronger, so Rodney’s distaste would strengthen to the point that he had no choice but reject the legality of the procedures in disgust and force the necessity of granting habeas? How could Gideon get Rodney to reverse? There must be a way. Rodney had decided to indulge in his personal feelings in conference, so didn’t that mean he was pleading with the others to convince him? But that was incredible! Here was a genuine surprise: Rodney’s vote might be in play.
Gideon strategically considered Rodney Sykes as he articulated his own position, and was still thinking about him as the remaining justices offered their opinions and votes. Gideon almost didn’t care when Al-Tounsi was provisionally decided for the government respondents, 5–4. Chief Justice Eberly split the majority decision and assigned it to two writers—part one to himself, on the validity of the CSRTs as a habeas substitute, and part two to Justice Quinn, on the root question of a constitutional prohibition—but that division just opened up more questions about whether Eberly’s section would be a majority if Sykes didn’t join it, and what would that mean for the opinion as a whole? The case was starting to look like a mess, so everyone agreed to wait and read the draft opinions before deciding anything further.
And then something even more magnificent happened. The four dissenters agreed on the superiority of Gideon’s well-articulated logic, and Justice Davidson granted him the treasured assignment. Gideon Rosen, he said, would write the primary dissent in Al-Tounsi for the others to join. Nodding quietly as Bernhard announced the decision, Gideon wrote got it! on his legal pad in big letters. But got what, exactly? A dissent in this major case wasn’t good enough for him; there was suddenly an opportunity to go further. Rodney Sykes didn’t want to vote for the respondents. Rodney was acting under some sort of cowed compulsion to his sworn jurisprudence and stale legalism, and he had gone so far as to say I don’t like it. That meant there was a chink in Sykes’s armor, a soft spot or weakness, and so with the right weapon, well yielded, Rodney could be pierced and transformed—like Darth Vader lured back to the light. Rodney switching sides would be enough to transform Gideon’s fiery dissent into a majority opinion. Not just any majority, but the revolutionary opinion he had dreamt of for God knows how long. Gideon was almost where he wanted to be. So: what twisted logic could argue pure sovereignty for the Philippines and yet still grant the Subic Bay detainees habeas—an outright contradiction? On what grounds could Gideon have it both ways?
Gideon left the conference room weighing points of attack like a general, and was still pondering various strategies the following Saturday morning, the first of March, when the winter’s final cold spell broke across the nation’s capital, and spring’s incipient warmth crept north across the Potomac. Longing to focus his jumbled ideas, Gideon clipped his biking shoes into the locking pedals of his treasured Eddie Merckx cycle and rode out of the city, veering off Wisconsin onto River Road, pedaling north into Maryland, slow and steady for miles, past Kenwood and the Holton Arms School, through Potomac Village, all the way out beyond the big suburban estates and budding spring forests of Seneca. With his legs churning and his breathing slowed he sorted his thoughts, and by early afternoon, turning back, cruising the twists and turns of MacArthur Boulevard beyond Glen Echo into Washington, Gideon had refined his “functional test” reading of the precedent cases so that with the right wording, strict sovereignty might be expanded to invoke the Suspension Clause, and then Rodney would see that he could join the four dissenters and yet still maintain his principled position. Now all Gideon had to do was write it down, circulate his draft, and then spend some time massaging both the opinion and Rodney until the man had agreed to switch sides.
Home at last, he collapsed on the couch in his sweaty bike shorts and started talking at Victoria, who was reading a novel in the armchair, about how sovereignty defines the exercise of power inside Subic Bay rather than describes the base’s simple status, and by sovereignty he meant strict sovereignty, and Rodney, who was eminently reasonable, and who really did want to find a rationale for switching sides, would certainly comprehend that logic, wouldn’t he? Only if Gideon stated it persuasively. But he could do that, couldn’t he? And what did Victoria think? And although it sounded crazy and unlike him, Sykes would definitely turn on this case—that was all but guaranteed, you should have heard him in conference with his blunt I don’t like it.
“You’re getting the couch all sweaty.” Victoria peered at him above her narrow reading glasses.
“I’d pee on this couch if it would make Rodney switch.”
“I doubt that would help.”
“Are you listening to me, Vic?”
She took off her glasses and laid them on her book. “I find it hard to imagine Rodney going for anything like that.”
“I did, too, but in conference he was begging to be convinced. And it’s happened to other justices late in their careers.” Gideon was too excited to sit still. He tried to pull himself off the couch, but his back and legs were too tired, and they rebelled. He winced, and stayed where he was. “Do you realize what it would mean if Rodney were to switch sides? I mean, if he were to have some kind of consistent change of heart on major cases? We could start reaching for the meaty ones again—gay marriage, righting the Commerce Clause, God knows what would come down the pipeline if we get a Democrat in office in November. We would have our coalition back—well, there’d still be Talos, of course—but basically we’d spend our time worrying only about him again. Which would be annoying, but fantastic. Like it used to be, with Elyse.”
Victoria’s face looked less like flesh than a porcelain mask: hard, cold and pale. Gideon stopped talking, and dread set in. She must be processing the implications of his chatter. All his talk of benefiting from Rodney’s switch, of tackling big issues, meant he was considering at least five to ten more years on the Court.
“I’m disturbing your reading, aren’t I?”
“Not really.”
Ah, hell, sometimes, this woman. Why didn’t Vic just come out and tell him outright that he was disappointing her? That he hadn’t once mentioned his retirement since her surprise visit to his chambers last year? Why the hell did she have to resort to her repressed and steely silences? Gideon bent over and unfastened his cycling shoes, taking longer than the clasps warranted. He pulled them off and laid them side by side on the carpet. There was simply no way he could make an imprint on the law and build a coherent jurisprudence on presidential power in a single year. The law is an incremental business. It could be another decade or so before Gideon was finally satisfied with the thoroughness of his work. He ought to bite the bullet and just say that to his wife.
Victoria’s skin was pale from a long winter indoors. Her whiteness highlighted the tiny wrinkles around her mouth. They seemed more pronounced, those wrinkles, as did the ones fanning from the corners of her eyes. A placid face, older than he remembered.
“What is it?” she asked him, calmly.
“Nothing.”
Victoria nodded once, picked up her novel and pretended to read.
Maybe it was just his electrolyte imbalance, as Gideon hadn’t biked so vigorously or far in months, but he felt queasy and dizzy, dangerously close to throwing up. His muscles pulsed in rebellion. He pried himself off the couch, favoring his left knee, and peeled off his biking shirt as he limped out of the room. He hesitated with the wet shirt covering his head, so he wouldn’t have to look directly at Victoria. He caught his breath in the kitchen, leaning over the counter. Gideon strengthened a bit after drinking a glass of Gatorade, then lugged himself upstairs, showered and changed, and locked himself in his study. It didn’t tak
e long for him to stop worrying about Vic. He pulled his chair close to his desk, itching to work on Al-Tounsi. His back and legs ached, but he was eager now, excited. Of course, he couldn’t complete his dissent until after reading and responding to Eberly’s and Quinn’s drafts, and of course he would need to get his clerks to research precedents, annotate his writing, and probably even suggest complementary approaches when his argument hit a wall, but he had earned his basic clarity while biking, and now he could attack the central questions with gusto. He knew how to begin. He powered on his computer, opened a new document, and typed.
Gideon hummed My Funny Valentine as he paced the entrance room of Justice Sykes’s chambers. Rodney’s two secretaries concentrated on their work, but they glanced at him occasionally, while a trio of Sykes’s clerks gathered in the doorway to gawk at him incredulously, as if Gideon were a polar bear trained to sing arias. Word would rocket around the Court that Justice Rosen “dropped in” on Rodney for a little chat, and that had to mean Al-Tounsi. Soon Bryce, Eberly, Arroyo and Quinn would pump up their efforts to keep Sykes on their side. A damn risky endeavor, this. He could have just phoned. But, as Abe Fortas once told him in chambers, for the most important cases, nothing beats working on a colleague face to face, consequences be damned.
Rodney opened the door to his private chambers. He didn’t look happy at all to see Gideon; in fact, he assaulted him with his dour severity. Justice Rosen froze, stopped humming, and knew right away that he had made a big mistake.
“Please forgive my delay.” Rodney’s expression was stern; he clearly lacked contrition. “I was on the phone.”
He refused to lead Gideon to the couch in his seating area. Instead Rodney retreated behind that ancient desk of his, and made Gideon sit before him, as if he were a clerk. Not a paper or pen was out of place on the mammoth surface, and there was a photograph of Rebecca, Rodney’s poor wife, dead in that terrible crash on I-495. Rodney wove his fingers together and rested his forearms on his desk. He released a weary sigh. Right. Disaster.
“I assume you’ve come to discuss Al-Tounsi,” began Rodney. “But I don’t believe I have anything to say about that case. I have read your dissent, which is very strong, and now I am considering my position.”
Gideon’s cheeks heated. “Forgive me.”
Rodney raised his brow. That was the closest this polite man would ever get to an overt condemnation. “I do understand your concern, Gideon. It is indeed an important case.”
“I don’t mean to be disrespectful to you or your process. I know you’ll make up your mind responsibly, and in good time.”
Justice Sykes nodded, not one to hold a grudge. “I am also partially to blame for this. I’m aware of the mixed messages I have given this Court, and the opportunity I’ve presented for your appeal.”
“Still, I should know better than to come here like this. We’ve got our unwritten rules, and I should do a better job of respecting them.”
“But there is no damage done, is there?” Rodney was smiling, now. “Besides, it is rather nice to see you privately, Gideon.”
Gideon nodded in defeat and changed position in the hard chair. Justice Sykes’s chambers were so austere and conservative compared to his own. By the window, thick crimson curtains were tied back with tasseled golden rope, the raw silk hanging long against the recesses of the window frames. There was an ornate, dark Italian rug, and a wall of degrees, honorary and earned, in matching frames and matting. The painting above Rodney’s desk was a cheesy landscape, the Parthenon in ruins, goats ambling before a young shepherd, executed by an insecure, second-tier American artist from the 19th century—a generic choice, a shorthand signal for “democracy.” Everything was just so—like a TV version of a justice’s chambers. There was no personality here. Impenetrable Rodney.
“You haven’t ever been in my chambers, have you?” Rodney had seen him looking around.
“I think I stopped by once at the start of my first term, when I was making my initial rounds.”
“A long time ago. I don’t believe it’s changed.”
“I don’t remember all the details.” Gideon pointed to the photograph on Rodney’s desk. “She was lovely, Rebecca.”
“Yes, she was.”
Rodney possessed such humbling fortitude and stoicism. He was far too rigid and guarded a man to expose any of his suffering. He had a kind of awe-inspiring resilience that Gideon encountered now and again, usually in people who had been born into impoverished or disenfranchised circumstances, but then went on to succeed wildly.
“Is your family well, Gideon? Victoria? Your sons?”
“Everyone’s great. Max and Jacob are out in Hollywood, trying to make movies. They just sold a screenplay.”
“That’s wonderful news. When will we see it in the theatres?”
“Well, they tell me it’s unlikely it’ll ever get made. Apparently, those studios buy way more screenplays than they can ever produce. But still, it’s a start.”
“Excellent.”
“Victoria is pushing me to retire.” Gideon paused in amazement at his own admission. “She wants a bit of freedom and time together. She doesn’t want us to grow old confined to Washington like Bernhard.”
“That’s understandable.” Rodney’s expression was blank, his stare cold.
“I haven’t told anybody.”
“Are you considering it?”
“I’ve got no choice but to consider it. Except I don’t want to retire. I’m absolutely clear about that.”
“I must say, of the nine, you are the one I’d least likely peg.”
Gideon laughed. “I do love this job.”
“Yes, I’ve noticed.”
“And I don’t feel like I’ve done enough in my career to retire. At least not yet.”
“I know what you mean. It can be a frustrating business. Convincing the other eight.”
“I still have this niggling worry that I’m a fraud and a fool.”
Rodney scratched a fingernail at an ink spot on his blotter. “I doubt anyone here feels entirely authentic. Well, except Killian, of course.”
Gideon laughed again. “I was about to say …”
“And perhaps Justice Arroyo. I suspect he feels quite authentic, even in his limited time.”
“Don’t forget about Joanna.”
“Ah, yes. Her, too.”
“So maybe it’s only me,” said Gideon.
“Not at all. You are not alone. I am also insecure. I often feel I need an anchor in this work, for fear of drifting out to sea. I cling to the law as written, you may have noticed, tooth and nail.”
“That’s a principled stance. Hardly desperation.”
“It is principled, Gideon, yes, but it’s grown more complicated of late. You see, I’ve aged like Socrates—only in that I’ve learned rather painfully how much I still don’t know.”
“That’s a good thing. Long as you don’t go drinking hemlock.”
Rodney chuckled. “Never fear. Not my style.”
Gideon sighed and shook his head in wonder. “God, everyone’s problems are so relative. I know the troubles plaguing most people dwarf our own, but still, here I am, worried about what I’ve accomplished in my career, what my work means in the big picture, and if I should heed my wife’s call to retire. Because when I’m in the middle of this work, it’s so all-consuming. It’s hard to see past my own perspective. Life is subjective. Everyone is limited by their own point of view. How could it be any different?”
“Well, the consequences are quite severe for others if we don’t move beyond ourselves.”
“Of course they are, Rodney. Of course.”
Rodney angled his chair away, and looked out the window. “Did you read my son’s articles in the Post?”
“On Al-Tounsi?” Gideon blinked with astonishment. “Yeah, I did.”
“They bothered me. But still, I have been thinking about them. Or rather, about those hundreds of prisoners locked away in Subic Bay. Along with the
thousands of widows and widowers, orphans and grieving parents, scattered around the country. The victims of terrorism. Our soldiers in the field. And future prisoners, as well, whose fates are determined by precedent, either way we vote. I feel somewhat differently than you, Gideon. My problems—which, as you wisely say, are nothing next to theirs—have always been rather vague in my mind. A kind of distraction or nuisance. An obstacle I must overcome on the path to justice. But I wonder now if there isn’t some kind of irony, here. The more I let myself feel the burden of other people’s problems, and the more I acknowledge the encumbrance of their pressing needs, the more acutely aware I am of myself as an individual, who has his own considerable problems and needs. Yes, it’s ironic. I am less and less overwhelmed, and more and more inside my skin, with each added burden.”
The phone rang. Justice Sykes answered, and immediately the woman on the other end of the line started talking fast. She spoke loud enough for Gideon to hear the panic in her voice, if not her actual words. Rodney stood up behind his desk.
“What? Now?”
Rodney moved toward the bookcase and faced away. The cord on his ancient telephone stretched taut across the room, and the body of the phone slid to the edge of the desk. Gideon grabbed it before it hit the floor.
Al-Tounsi Page 29