Mr. Justice

by Scott Douglas Gerber

  Twenty minutes later, they arrived at their destination. Agent Blakeman had never been to UVA hospital. McDonald had been several times. Megan, like most little kids, used to get sick a lot. And when she did, McDonald usually considered it an emergency. When it turned out to be nothing more than an upset stomach or some other minor ailment, Jenny would chastise him, albeit lovingly, for overreacting.

  They approached the information desk. A white-haired man on the north side of eighty put down the Sunday paper and said, “May I help you?”

  “Yes, please. What room is Kelsi Shelton in?”

  The old man said, “You’re Peter McDonald, aren’t you? There was a big story about you in yesterday’s paper. I recognize you from the picture. Congratulations on your appointment to the Supreme Court.” The old man searched for a pen and paper. “May I trouble you for an autograph for my grandson? He wants to be a lawyer. He’s applying to law schools this year. He’s got very good grades and he sure can talk up a storm.”

  McDonald signed his name on the piece of paper and returned it to the old man. “Tell your grandson good luck. The law is a noble profession. As far as I’m concerned, though, there’s still one more step in the process. The full Senate must vote to confirm my nomination. What happened yesterday was merely a committee vote.”

  The old man didn’t appear to hear a word McDonald had said. He was too busy checking the computer for Kelsi Shelton’s room number. “Room 512,” he said. “The elevator’s around the corner to the left.”

  McDonald could hear that the television was on in Kelsi’s room. He knew they wouldn’t be waking her. She was watching the Redskins game.

  He said to Agent Blakeman, “I didn’t even know she liked football.”

  She didn’t. But Brian Neal did.

  Agent Neal spun around in his chair when he heard the knock on the door. He stood the instant he realized it was Professor McDonald. “Good afternoon, sir,” he said.

  Kelsi said, “Who is it?”

  McDonald said, “It’s Peter.”

  Neal stepped out of Kelsi’s line of sight.

  Tears filled Kelsi’s eyes. “It … it’s a good game. The Redskins just hit a home run.”

  McDonald smiled at Kelsi’s malapropism, walked to her bed, and hugged her.

  They hugged for five full minutes. It didn’t seem long enough.

  McDonald finally said, “How are you feeling, kiddo?”

  Kelsi tried to answer but couldn’t. Instead, she began to cry. “Sorry,” she said, after she had regained her composure. She dabbed her eyes with the sleeves of her sweatshirt. She pulled her sleeves over her hands as makeshift mittens to comfort herself.

  Megan used to do the same thing.

  PART II

  The Marble Temple

  CHAPTER 71

  Robert Johnson, the legendary African American blues musician, sung in one of his most famous songs:

  I got to keep moving, I got to keep moving

  blues falling down like hail

  blues falling down like hail

  Uumh, blues falling down like hail

  blues falling down like hail

  and the days keeps on worryin’ me

  there’s a hellhound on my trail,

  hellhound on my trail

  hellhound on my trail.

  Dontrelle Davis couldn’t “keep moving” fast enough.

  Davis, who was black, worked at an auto repair shop on the west side of Charleston. He had asked his employer for the day off to visit his sick mother in the hospital. His employer refused. A heated exchange of words ensued. The employer tried to hit Davis with a wrench, and Davis struck back in self-defense. The employer suffered a broken nose. Davis dislocated his shoulder. No charges were filed by either party—Davis, because he was too scared to do anything about it; the employer, because he had an alternative means of redress.

  The Klan dragged Davis deep into the woods. They stripped him of his clothes and chained him to a tree. They stacked kerosene-soaked wood around him and saturated his body with motor oil. They cut off his ears, fingers, and genitals, and skinned his face. They plunged knives into his flesh, and cheered at the contortions of his body and the distortion of his features. Davis’s eyes bulged out of their sockets and his veins ruptured.

  Davis could be heard screaming, “Oh, my God! Oh, Jesus!” His blood sizzled in the fire. His heart and liver were removed and cut into several pieces, and his bones were crushed into small particles. The konklave scrummed for souvenirs.

  One of the nighthawks handed Senator Alexandra Burton the largest portion of Davis’s heart.

  The Charleston den had been surprised to see a sitting United States senator at their konklave. They had long known that Senator Burton sometimes offered support for their activities—Earl Smith had mentioned it to them on several occasions over the years—but it nevertheless caught them off guard when Burton exited a car driven by Smith’s nephew. They were speechless when the senator announced that she was the imperial wizard of the Knights of the Ku Klux Klan and that she felt compelled to deliver the news in person that both Earl Smith, the grand dragon of the South Carolina Realm, and Billy Joe Collier, the klailiff, were dead.

  Burton then stated that she was proud to report that she had selected Clay Smith to replace his uncle as grand dragon. Scattered murmurs rippled through the konklave about Clay’s age and inexperience, but there was nothing the brothers could do about Burton’s choice. A hydra who foolishly uttered a derogatory remark about Burton’s gender was pulled to the side and stoned.

  Burton also said that she was sorry to report that Peter McDonald had been confirmed by the full Senate as an associate justice of the Supreme Court of the United States.

  One of the nighthawks said, “You mean that nigger lover Earl was tellin’ us about?”

  “That’s right.” A warm sensation rushed over Burton’s body. Although she was profoundly disappointed by the Senate’s vote to confirm McDonald, she felt rejuvenated being in the company of her fellow patriots. She also knew that there was still time to stop McDonald. It would be more difficult now that McDonald was a Supreme Court justice, but it wasn’t impossible. After all, Burton said to herself as she joined in the singing of the Klan’s sacred song, John Wilkes Booth had stopped Abraham Lincoln.

  CHAPTER 72

  It wasn’t until 1935 that the U.S. Supreme Court got its own building. From 1800 until 1935, the Court was housed in cramped quarters in the U.S. Capitol. Prior to 1800, the Court sat in the Merchants Exchange Building in New York and Independence Hall and City Hall in Philadelphia. The Court finally received a home of its own after Chief Justice William Howard Taft lobbied for one in order to distance the Court from Congress as an independent branch of government.

  Peter McDonald had served as a law clerk to Chief Justice William H. Rehnquist, argued more than a dozen cases before the nation’s highest court after his clerkship had ended, and visited the Court many times over the years for his academic research. Nonetheless, his heart skipped a beat when he pulled his Volvo station wagon into the Court’s underground parking lot on his first day as an associate justice.

  “Good morning, Mr. Justice,” the parking lot attendant said. “Where’s your driver?”

  “You’re looking at him,” McDonald said, smiling. He had declined the car and driver to which he was entitled by statute. He was a modest man, and just because he now occupied one of the most powerful positions in the federal government didn’t mean he had forgotten how to drive.

  McDonald went out of his way to chat for a few minutes with the parking lot attendant. He spoke with every Court employee he encountered on his way to his chambers, which explained why he was thirty minutes late by the time he arrived.

  McDonald had convinced his longtime faculty secretary, Mildred Jacobs, to accompany him to the Court. Mrs. Jacobs—everyone, including McDonald, called her Mrs. Jacobs—was in her early seventies, comfortably married to Mr. Jacobs for the better part of four de
cades, and about as much fun as a root canal. But she also was as efficient as a Hollywood celebutante during a Rodeo Drive shopping spree. That’s why the instant she saw McDonald burst through the chamber’s door, she said, “You’re late.”

  McDonald hung his trench coat on the coat rack next to Mrs. Jacobs’s desk. He said, “I know.”

  “If you know, why are you late?”

  McDonald smiled sheepishly and glanced at his watch. “Sorry about that, but I’ve got a few minutes yet before I’m scheduled to meet my clerks. I’ll be in my office.”

  Mrs. Jacobs had made certain that McDonald’s office was decorated how he would like it. She had secured for his use the desk once occupied by Felix Frankfurter, who, like McDonald himself, had worked as a law professor prior to being appointed to the Supreme Court. Sundry personal items were sprinkled throughout the room: a baseball autographed by Dustin Pedroia, McDonald’s favorite player; a hole-in-one certificate from Birdwood Golf Course, McDonald’s proudest athletic achievement; a copy of the first issue of the Yale Law Journal for which McDonald had acted as editor in chief; and a photograph of McDonald and former Chief Justice Rehnquist.

  Mrs. Jacobs had taken special care with regard to McDonald’s vast book collection. The complete series of the U.S. Reports was shelved in the bookcase closest to McDonald’s desk. The U.S. Reports were the casebooks in which the official opinions of the Supreme Court were published. As of the current term, they consisted of 553 bound volumes and soft-cover preliminary prints of an additional three volumes. A final five volumes’ worth of decisions also existed in individual slip-opinion form. Volumes were added to the set at the rate of three to five per term, and they were generally between eight hundred and twelve hundred pages long.

  Likewise within reach of McDonald’s desk were his favorite monographs on constitutional law. Mrs. Jacobs had been working for McDonald long enough to know what they were: John Hart Ely’s Democracy and Distrust: A Theory of Judicial Review; Bruce A. Ackerman’s We the People: Foundations; Larry D. Kramer’s The People Themselves: Popular Constitutionalism and Judicial Review; and Ronald Dworkin’s Law’s Empire. All were penned by law professors who taught at elite law schools. But the book that Mrs. Jacobs had awarded prominence of place was Douglas Scott’s To Secure These Rights: The Declaration of Independence and Constitutional Interpretation, which had been presented to McDonald by a colleague after a Federalist Society debate.

  Professor Scott, who taught at a small law school in the Midwest that didn’t have a trace of ivy on its walls or a single cabinet secretary on its governing board, argued in his book that the Constitution of the United States should be interpreted in light of the natural rights political philosophy of the Declaration of Independence and that the Supreme Court was the institution of American government that should be primarily responsible for identifying and applying that philosophy in American life.

  McDonald wasn’t completely convinced by Scott’s book, preferring instead the conventional account that the Declaration of Independence had no legal significance—that it was merely an eloquent pronouncement to the world that the United States was a free and independent nation—but he had to admit that he found Scott’s thesis difficult to resist. McDonald was particularly taken with Scott’s claim that the theory advanced in the book—what Scott called “liberal originalism”—was neither consistently liberal nor consistently conservative in the modern conception of those terms. Rather, the theory was liberal in the classic sense of viewing the basic purpose of government to be safeguarding the natural rights of individuals. As Thomas Jefferson wrote in the Declaration itself, “To secure these rights, governments are instituted among men.” In essence, Scott maintained that the Declaration articulated the philosophical ends of our nation and that the Constitution embodied the means to effectuate those ends.

  McDonald had asked Mrs. Jacobs to schedule a lunch with the young professor just before he received the call from the White House nominating him to the Supreme Court. Now that McDonald was on the Court, he still hoped to meet Professor Scott.

  But the most important mementos in McDonald’s Supreme Court office remained what they had been in his UVA faculty office: photographs of his family. A half dozen pictures of McDonald’s wife and daughter were displayed on an antique table immediately behind his desk. McDonald leaned forward in his chair and studied each and every one—the wedding photo in which Jenny resembled a young Nicole Kidman; the picture of McDonald and Jenny on their honeymoon in Ireland; the smiling couple in front of their first home in Charlottesville; the photograph from the hospital on the morning that Megan was born; Megan’s first day at school; and the family’s most recent Christmas card in which McDonald was dressed as Santa Claus, Jenny as Mrs. Claus, and Megan as a tiny elf.

  McDonald stared lovingly at the photographs and desperately missed the life he had led. However, before he had a chance to become too sentimental, Mrs. Jacobs buzzed him and said, “Your law clerks are waiting for you in the Harlan Room.”

  A law clerk was a recent law school graduate who provided assistance to a judge in researching and writing opinions. All federal judges were entitled to law clerks, and most state court judges were too. Being a law clerk to a U.S. Supreme Court justice was the most prestigious position a young lawyer could attain. Supreme Court clerks usually had graduated number one in their respective law school class, held a high-ranking position on the law review, and clerked for a year with a prominent U.S. court of appeals judge. McDonald had certainly done all of those things before he had clerked for Chief Justice Rehnquist. So, too, had the three young men and the one young woman who had agreed to clerk for him.

  Technically, they had agreed to clerk for Justice Crandall, but McDonald had decided to retain Crandall’s clerks, both as a courtesy to them—Supreme Court clerkships were difficult to get, and it would have been unfair to them to lose their positions after only three months on the job—and so he could benefit from their time at the Court. However, Justice McDonald already knew who his first pick would be for next year: Kelsi Shelton.

  CHAPTER 73

  The spring semester was already three weeks along by the time Kelsi Shelton was strong enough to return to school. Everyone at UVA had been wonderful during her time away. Her classmates had made sure that she received copies of the notes she needed, and her professors had taped the lectures she missed so that she could listen to them at her convenience.

  Kelsi smiled and said hello to a steady stream of well-wishers as she scrambled for a seat in Federal Courts class. She spotted a familiar face waving her in like a flagman on an airport runway.

  “Hi, gorgeous,” Sue Plant said as Kelsi squeezed into the chair in the fourth row. “I missed you.”

  “I missed you, too.” Kelsi wiped away a tear. “Thanks for the care packages. They always made my day.”

  Kelsi and Sue hugged for what seemed like forever.

  “Get a room!” one of the class clowns said.

  Kelsi laughed. It felt good to be one of the gang again.

  She turned on her notebook computer, opened the file that contained her Fed Courts outline, and watched in wonder as her professor became animated about the Pullman abstention doctrine, arguably the dullest Supreme Court rule in the history of American law.

  Kelsi’s first day of classes passed in a blur. She had managed to discern that Pullman abstention permitted a federal court to stay a plaintiff’s claim that a state law violated the U.S. Constitution until the state’s judiciary had been afforded an opportunity to apply the law to the plaintiff’s case. But she hadn’t figured out why it had taken her professor fifty minutes to make that simple point, let alone why her professor seemed so enthralled by it. To each her own, as the saying went.

  Employment Discrimination class was a different story altogether. Kelsi had no idea what her professor was talking about in there. The three-step burden-shifting framework of McDonnell-Douglas made her head spin. At least it was nice outside, which explained
why she had decided to take a walk on the Lawn on an early February afternoon.

  Throughout its history, the University of Virginia had won praise for Thomas Jefferson’s architectural design. The American Institute of Architects, for one, called Jefferson’s work “the proudest achievement of American architecture.” Jefferson’s plan revolved around the Lawn, a breathtaking terraced green space surrounded by residential and academic buildings. Technically, no one was supposed to walk on the Lawn, but that didn’t stop students from doing so. In fact, rare was a sunny day without students studying under trees, sunbathing on towels, lunching from takeout diners, and playing ultimate Frisbee. The only activity in which students didn’t engage was pitching golf balls. Some drunken fool had tried that once and was nearly expelled after the divots were discovered.

  “A little help!” one of the ultimate Frisbee players called out. His disc had flown wildly off course and landed at Kelsi’s feet.

  Kelsi retrieved the Frisbee and executed a perfect scoober to the grateful player.

  “Rad toss,” the Frisbee player said, jogging toward her. “Wanna play?”

  Newcomers were always welcome at pickup games or whenever people were throwing.

  “I can’t,” Kelsi said. “I’ve got a lot of reading to do for tomorrow.”

  The Frisbee player—a freshman, or sophomore, tops—stared at Kelsi in disbelief. “Blow it off. I always do.”

  But before Kelsi could answer, the player was summoned back to the huddle.

  Thirty seconds later, he called out, “Sorry! Game’s called on account of darkness.”

  Kelsi waved and kept walking. The Lawn emptied. She enjoyed the solitude. She sat on the stairs of the Rotunda and thought about the last several months, especially about working for Professor McDonald and, of course, getting stabbed by Clay Smith. She tried to figure out why Clay had wanted to kill her, but before she could give it much consideration, he stepped out of the gloaming.