Mr. Justice

by Scott Douglas Gerber

  The opinion for the Court was the most difficult opinion to write because it wasn’t solely the opinion of the author. Justice Holmes had said that writing the Court’s opinion required that the author “dance the sword dance.” Justice Harry Blackmun had made the same point less poetically: “Other justices say that if you put in this kind of paragraph or say this, I’ll join your opinion. So you put it in. And many times the final result is a compromise.”

  Compromise was difficult for law professors. Most professors had entered the cloistered walls of the academy because they wanted to express their ideas, not the ideas of a committee. McDonald was no different.

  “Finally,” McDonald said to his empty office. “A decent first draft.”

  He had been working on the opinion for fifteen hours straight, and he was exhausted. He saved the draft on his PC and on the thumb drive that accompanied him everywhere he went. He shut down his computer, stuffed the thumb drive into his pocket, and headed for the small apartment he rented in Georgetown.

  McDonald had been encouraged to buy a home in the D.C. area. He declined. He couldn’t bring himself to sell his house in Charlottesville. Jenny had loved that house, and so had Megan. He had promised them shortly after his nomination had been announced that he would never sell it. He wasn’t about to break his word. His wife and daughter were dead, but they remained the two most important people in his life.

  CHAPTER 82

  Clay Smith waited for Peter McDonald to lock the door before he took his next breath. Clay was stunned that he had managed to sneak into the Supreme Court building after hours and he didn’t want to spoil his good fortune by making a stupid mistake. He was torn, though. Should he kill McDonald immediately? He had a clear shot at him—probably the best shot he would ever get—and the imperial wizard had asked Clay to kill the Court’s newest justice. Or should Clay first have a look around McDonald’s office to see if there was something that might help Burton in the larger sense of the word, like, say, a draft opinion in Tucker v. University of South Carolina?

  Clay chose the latter course. He was a klansman, and klansmen did what they were told, but he was also a law student—at least he had been until the week before when he had heard on the radio that he had been officially expelled in absentia—and curiosity required him to search for the draft opinion.

  Many of the senior faculty at UVA law school continued to write their articles on legal pads for their secretaries to type. It was tough to teach an old dog a new trick, as the cliché went. But Kelsi Shelton had told Clay that McDonald did his own typing. That meant that Clay had to figure out how to access McDonald’s computer.

  Clay switched on the power, waited for the PC to boot, and took a few stabs at a security password. He first tried McDonald’s wife’s name. Next he tried McDonald’s daughter’s name. Then he tried WAHOO. Bingo! Clay said to himself. McDonald, whom everyone on campus had known as a sports nut, had used the nickname of UVA’s sports teams as his password.

  McDonald hadn’t had a chance yet in his initial weeks on the bench to create many documents, which meant it didn’t take Clay long to find the document for which he was searching. The file was entitled TUCKERMAJORITYOPINION and, sure enough, McDonald had been assigned the opinion for the Court. There had been considerable speculation in the press about whether McDonald would get the plum assignment as his first opinion, and the document that Clay was reading as quickly as he could confirmed what the Washington whispers had suggested.

  Nothing that Clay read surprised him. McDonald’s draft was clear, thoroughly researched, and most important for present purposes, it came out in favor of the university.

  McDonald took a different path than that suggested by President Jackson. Rather than emphasizing the president’s point about making amends to minorities for previous discrimination against them—what civil rights activists called “reparations”—McDonald held that stare decisis mandated that Grutter v. Bollinger not be overturned by the Supreme Court. McDonald credited society’s rejection of the “separate but equal” concept as a legitimate reason for the Court’s rejection of Plessy v. Ferguson in Brown v. Board of Education, but he emphasized the need for the Court in the case at bar not to be seen as overruling a prior decision merely because the individual members of the Court had changed. Justice McDonald wrote:

  Because neither the factual underpinnings of Grutter’s central holding nor our understanding of it has changed, and because no other indication of weakened precedent has been shown, the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 2003.

  Clay didn’t know what to make of McDonald’s argument. It was certainly original. McDonald had seemingly created a new theory of stare decisis, one that tried to reestablish the Supreme Court as a court of law rather than a political institution. But McDonald’s approach was inconsistent with the vast majority of the Court’s most recent decisions, including, most famously, Bush v. Gore, wherein the Court’s five conservative justices essentially picked the president of the United States … much to the chagrin of the Court’s four liberals and to the Democratic Party writ large.

  Although these shortcomings in McDonald’s reasoning would probably occupy much time and attention in the nation’s op-ed pages and law journals, they had no practical effect. In the immortal words of Justice Robert H. Jackson, Supreme Court judges “are not final because we are infallible, but we are infallible only because we are final.”

  Clay saved a copy of the draft to the thumb drive he had purchased for precisely this purpose and rushed off to share the news with the imperial wizard.

  CHAPTER 83

  Alexandra Burton poured a glass of wine. She was drinking a Mullet Hall Red from the Irvin House Vineyard in Charleston. Several of her U.S. Senate colleagues had been urging her for years to try a more expensive French wine, such as a Petrus or a Romanee Conti. Burton always declined. She was an American. She was a South Carolinian. She was a klanswoman. No foreign drink would ever touch her lips.

  A soft breeze stirred the wind chime on Burton’s porch. The setting sun painted a landscape above the tall oaks in her yard. A perfect Sunday afternoon, she thought. Almost … Clay Smith had reported early on Saturday morning that the Supreme Court was poised to rule against her grandson. Burton knew that an opinion of that magnitude was unlikely to be released until the final day of the Court’s term, so she still had time. Five weeks, to be precise. The Court always recessed during the last week of June.

  Burton returned her attention to David M. Chalmer’s Hooded Americanism: The History of the Ku Klux Klan. She was almost always reading two books at the same time: one—usually a biography of a famous politician—that related to her political career, and a second about the Klan. It was difficult to find unbiased treatments of the latter, but Chalmer’s book was certainly one.

  Burton turned to the chapter about South Carolina. Chalmers reported that the Palmetto state was the last of the realms chartered during the reign of Imperial Wizard William J. Simmons,

  but there is scant detail of its history. This may well substantiate the general feeling on the part of historians that the Invisible Empire was of negligible force and importance in South Carolina.

  Burton knew otherwise. In the 1920s her grandfather had been one of the founding fathers of the South Carolina Realm. Hard times on the farm, an unexpected influx of Roman Catholics from above the Mason-Dixon line, and, of course, lingering racial unrest from the freeing of the slaves after the Civil War all provided fertile soil for the Invisible Empire. For example, when longtime congressman and future U.S. Supreme Court justice James F. Byrnes decided to run for the U.S. Senate in 1924, the South Carolina Realm flexed early political muscle and ensured his defeat by circulating thousands of copies of a petition the day before the election in which several of Byrnes’s childhood friends had praised the candidate’s efforts in saving the life of an African American
playmate who had fallen into a local swimming hole.

  By the time Burton had come of age, the South Carolina Realm was among the most vibrant in the nation. The Supreme Court’s landmark 1954 public school desegregation decision, Brown v. Board of Education, had proved to be a powerful recruiting tool for the Klan throughout the country, especially in the South. The civil rights movement led by Martin Luther King Jr. in the 1960s had inspired thousands of white southerners to say that enough was enough. A young Alexandra Burton was among them, and with Burton’s intelligence and work ethic, she quickly rose through the ranks of both the Klan leadership and state and national politics. At twenty-five, Burton was elected grand dragon of the South Carolina Realm. At thirty, she was a U.S. senator. At forty-five, she was the imperial wizard of the Ku Klux Klan. At sixty, she was poised to announce her candidacy for the Republican nomination for president of the United States.

  Burton checked her watch. She couldn’t afford to be late. She drained her glass of wine, stubbed out the one cigarette she permitted herself per day, and headed for her car. She wouldn’t use a driver tonight.

  CHAPTER 84

  Burton had called an emergency meeting of the kloncilium to discuss Clay Smith’s recent discovery that Peter McDonald was planning to rule in favor of affirmative action. A series of encrypted e-mails during the past couple of weeks suggested that the kloncilium had expected as much, but Clay’s confirmation of their suspicions was important enough to merit a face-to-face discussion. They agreed to meet, as they almost always did, at The Sacred Temple of the Kloncilium.

  The kloncilmen filed into the ceremonial room. The fiery summons had been issued only the day before. Burton apologized for the short notice. She said, “Akia. Kigy.”

  The other members of the kloncilium returned the imperial wizard’s salutation.

  The opening devotional was recited from the Kloran.

  “I’ve called you here this evening to apprise you of some troubling news,” Burton said. “The news was not unexpected, but it was nonetheless extremely disturbing when I received it. This young man to my right was the bearer of the bad news. I think it’s best that he share it with you himself.”

  “Who is he, Your Excellency? It’s unprecedented for a guest to attend a kloncilium meeting. Our meetings are sacred.”

  The kloncilman who had uttered the objection was the grand dragon of the Indiana Realm. The Hoosier state wasn’t famous for basketball only. The Klan’s presence in Indiana was greater than that in any other state. It had been that way since the days of David C. Stephenson.

  Stephenson had been one of the original backers of Hiram Evans’s 1922 effort to unseat William Simmons as the imperial wizard of the Invisible Empire. When Evans’s coup proved successful, he named Stephenson the grand dragon of Indiana and twenty-two other northern and midwestern states. Indiana was Stephenson’s stronghold: at the height of Stephenson’s power, nearly one-third of all adult white males in the state were members of the Indiana chapter. Although membership had waned over the years, Indiana still claimed more Klan members per capita than any other state.

  Of course Burton knew this, and she handled the question from the current Indiana grand dragon with the kid gloves it required. She said, “This young man is the nephew of one of our fallen heroes.”

  “Which one?” the kloncilman from Ohio asked. Ohio was another legendary Klan stronghold.

  “Earl Smith.”

  All six remaining members of the kloncilium stood as a sign of respect for their fallen colleague. “Akia! Kigy!” they said. They pounded the floor seven times with their feet… . Another Klan ritual.

  Clay Smith didn’t know how to react. He said, “Thank you” and added that he, too, was a klansman.

  That drew a second chorus of the sacred Klan refrain.

  Clay failed to mention that he was the one who had killed his uncle.

  Burton stated that, in addition to being Earl Smith’s nephew, Clay had been a law student at one of the top schools in the nation. “There’s no one more qualified to explain what the Supreme Court is about to do than young Mr. Smith here.” Burton patted Clay on the shoulder. “Clay, the floor is yours.”

  Clay proceeded to explain as simply as he could the gist of Peter McDonald’s draft opinion in Tucker v. University of South Carolina. Most of the kloncil members seemed to understand what he was saying. The only exception was the grand dragon of Texas, the great grandson of Hiram Evans who owed his position on the kloncilium to his great grandfather’s legacy rather than to any skill set, intellectual or otherwise, he personally possessed. But even that grand dragon appeared impressed when Clay described how he knew any of this: because he had broken into one of the most secure government buildings in the United States and stolen the draft.

  After Clay had finished, he was instructed by a unanimous vote of the kloncilium to do anything he needed to do to make certain that McDonald’s draft opinion didn’t become the Court’s published opinion. When Clay had asked for more specific guidance, Burton had said, “You know what to do.”

  Clay left the sacred temple more confident than ever that he did.

  CHAPTER 85

  Peter McDonald returned the vacuum to the closet and cleared the magazines from the coffee table. He was preparing for his first dinner guest since Jenny and Megan were murdered, and he was in over his head. Jenny had handled the lion’s share of the party planning, not to mention the house cleaning. McDonald had been responsible for purchasing the wine and securing a babysitter. He had been given easy assignments; the Charlottesville area had several world-class vineyards and Megan had been adored by every babysitter who met her.

  But now, it was different. Now Peter McDonald was alone.

  McDonald had decided to spend the weekend in Charlottesville. He hadn’t been back to his old stomping grounds since being sworn in to the Supreme Court, and he needed to check on his house. With the notable exception of dust and a musty smell, his house was in good order. He had opened the windows to solve the must problem, and he had vacuumed and swept to dispel the dust.

  The grandfather clock next to the stairs struck seven o’clock. His dinner guest would be arriving momentarily. He stirred the chili simmering on the stove, uncorked a bottle of wine to allow it to breathe, and removed the cornbread from the oven.

  The doorbell sounded. An unexpected sensation—nervousness coupled with excitement—coursed through his body. He opened the door.

  “Hi, Justice McDonald,” his dinner guest said.

  “Hello,” McDonald said. “But, please, you can still call me Peter.”

  “Thanks.” Kelsi Shelton flashed a warm smile and stepped over the threshold.

  McDonald led his dinner guest to the living room and offered her a glass of wine, which she gladly accepted.

  He said, “I was planning on inviting a few of my former colleagues to join us, but they’ve scheduled a dinner for me at the Rotunda tomorrow night.” He took a sip of wine. “You know what they say about too much of a good thing.”

  Kelsi said, “I read about that in the UVA News. The article said that Senators Warner and Webb are scheduled to attend.”

  “That’s right. It’s silly, really. Such a fuss. I’m still the same person I was before I got appointed to the Court, but now that I’ve got a different job everyone treats me like the second coming. Frankly, it makes me uncomfortable.”

  “You might as well get used to it. From what I’ve seen on C-SPAN, all of the justices are treated like royalty. I suspect that’s why so many lawyers would like the job.”

  “C-SPAN? You don’t get out much, do you? Seriously, I hope that’s not the case. I hope my colleagues took the job because it’s a chance to serve this great country of ours. That’s why I did. I would’ve been more than content to live out my life teaching bright young students such as yourself, but when the president asked me if I would be willing to accept a nomination to the Court, I couldn’t say no … even after Jenny and Megan were killed. The
president kindly gave me an out when he heard the news. I didn’t take it, though. The Court is too important. And …” McDonald’s voice broke.

  Kelsi finished his sentence: “and your wife would’ve wanted you to stick it out.”

  McDonald nodded. He stood up from his chair to check the chili, … and to change the subject.

  Kelsi followed him into the kitchen. “The chili smells great. I didn’t know you could cook. I was expecting takeout from China Garden.”

  McDonald chuckled. “I can’t cook. You’re witnessing half my repertoire.”

  “What’s the other half?”

  “Pancakes. Megan used to love my pancakes. My chocolate chip smiles were a big hit with her.”

  Shoot, Kelsi said to herself. She had reopened the wound, and it had been closed for only a minute and a half. “Sorry,” she said.

  “Don’t worry about it. You didn’t know.” McDonald dished the chili into two large bowls, handed the bowls to Kelsi to place on the table, and retrieved the cornbread from the counter next to the refrigerator. “I can make three things, actually. My cornbread ain’t too shabby.”

  “I can’t wait to try it.”

  “There’s no time like the present.” McDonald pulled out a chair for Kelsi. He made certain it wasn’t Jenny’s. He didn’t think he would ever be able to allow anyone to sit in Jenny’s chair. “More wine?”

  “Yes, please.”

  McDonald refilled their glasses. “To better days to come.”

  Kelsi echoed McDonald’s sentiment and touched her glass to his. “How are your clerks shaping up?”

  McDonald reached for the cornbread. “Not bad. I was thinking of asking one of them to join us—a handsome young man from Yale. But I thought Agent Neal might object. How’s that going?”