Mr. Justice

by Scott Douglas Gerber

  At eighty-seven years of age, Donald Dickinson Lowry had served on the Supreme Court for nearly four decades. Nominated by a Republican president and confirmed by a Democratic Senate in the closest vote in modern American history, the Court’s senior associate justice had become increasingly liberal over the years. He tended to side with the federal government when challenges were raised that the law at issue was beyond the government’s power to enact; with regulators who wanted to reign in the free market preferences of the capital class; and with libertarians on free speech, the relationship between church and state, and the rights of those accused of crimes. But his most surprising vote by far was his decision to join a sharply divided Court in reaffirming, for the umpteenth time in a generation, the 1973 Roe v. Wade abortion case. Not only was Lowry a Republican, he was a Catholic. He was chastised by the Right for turning his back on the pro-life movement that had worked so vigorously to ensure his confirmation, and he was excommunicated by the pope himself for violating God’s law that all life was sacred.

  Justice Lowry had never publicly explained his vote. He had been pressed to do so many times over the years during the Q & A portion of the speeches he had delivered at a myriad of bar conventions and law school symposia, but his response was always the same: it was inappropriate for a judge to explain a decision issued by his court outside of the four corners of the written opinion itself. He insisted that this was especially true for a judge on a multimember court such as the U.S. Supreme Court.

  Peter McDonald had long respected Justice Lowry for sticking to his guns, no matter how intense the pressure was on the elderly jurist to give the public what it wanted. Unfortunately, Lowry’s willingness to fend off pressure would make McDonald’s task of persuading him to switch his vote in Tucker v. University of South Carolina even more difficult than it otherwise would have been. But McDonald had to try. Clay Smith couldn’t have been clearer: Kelsi Shelton’s life depended on it.

  Brian Neal had decided to double back to Kelsi’s apartment the moment he arrived at his motel. A sudden tsunami of dread explained his decision. His insecurities aside, he knew that Kelsi wouldn’t sleep with Justice McDonald. She had told him she wouldn’t. She had promised him, and he believed her. Only one explanation remained: something terrible had happened to Kelsi; something horrific had been done to her again.

  The same neighbor who had greeted Neal with grief when Neal first appeared at Kelsi’s door tried to give it to him again. This time Neal didn’t bother to try to win the neighbor’s favor. This time he flashed his badge and told the kid to stay out of the way.

  Neal felt guilty snooping around Kelsi’s apartment, but he had no choice. The person who had tried to kill Kelsi remained at large, and there was no reason to believe that he wouldn’t try again. In fact, the strong likelihood of a repeat performance explained why Neal’s superiors at the Secret Service had permitted him to remain on the case. Of course, they would have decided otherwise had they known that Neal and Kelsi were sleeping together.

  Much of what Neal discovered in Kelsi’s apartment didn’t strike him as unusual. The kitchen was stocked with fresh fruit, vegetables, nuts, yogurt—food that a busy but health-conscious student would enjoy. The living room was equipped with a big-screen TV and a DVD player. A dozen of Kelsi’s favorite movies were stacked nearby. Neal had watched most of them with Kelsi and a bottle of wine. The bathroom was clean and decorated with scented candles and matching towels and washcloths. The bedroom was adorned with framed posters of major European cities—Neal knew that Kelsi liked to travel—and photographs of friends and family. Neal smiled when he noticed his picture prominently displayed on Kelsi’s nightstand. The clothes in her closet were organized by season and style.

  Neal returned to the living room and sat on a leather armchair that Kelsi had recently purchased from a local furniture store. He reached for his back as he remembered how heavy the chair had been to move from the roof of her car. He chuckled at how she had convinced him that he was strong enough to carry the chair himself. “You’re strong, Brian,” she had said. “You can lift it.” She had added with a mischievous smile, “You’ll also be saving me forty bucks in delivery charges.”

  Good memories, no doubt. Good times. But they did nothing to help Neal locate Kelsi now. He reached for the remote so he could check the news—so he could find out whether anyone had reported Kelsi missing—but just as he was about to press the POWER button he spotted a set of MapQuest driving directions to the Trout Pond Campground in the George Washington National Forest. The automatic stamp at the bottom of the paper indicated that the directions had been printed six hours earlier. Neal stuffed the directions into his pocket and raced to his car.

  CHAPTER 90

  Cat Wilson circled the Waffle House and refilled the coffee cups of a dozen grateful patrons. She had returned from D.C. and her manager was kind enough to assign her to the breakfast shift, which was the most lucrative time of day as far as tips were concerned. Cat was always strapped for cash, and her sojourn to the nation’s capital had only exacerbated the problem.

  Cat was never able to locate Earl Smith, and he still hadn’t bothered to call. The same held true for Clay. Cat had waited for three hours at the Smithsonian for him—Clay had promised her a personal tour—but he never showed. Cat chastised herself when she realized that she didn’t even know Clay’s last name. Why the self-beratement? Because she and Clay had spent most of their two days together rolling around in the hay.

  Getting stood up by men wasn’t unusual for Cat, especially after they had slept with her a time or two and discovered that she had a young daughter. But she thought Clay was different. He reminded her of Earl in that regard… . Earl.

  Peter McDonald arrived at the Court before all but one of his colleagues. The early bird? Donald Lowry.

  “Good morning, Peter,” the elderly jurist said. “To what do I owe the pleasure?”

  It was half past seven in the morning and not even Lowry’s staff had punched in yet. The justice had answered the buzzer himself. At his age, it took him a few minutes to make it to the door, but he eventually got there. He was sipping a cup of Earl Grey tea.

  McDonald said, “I don’t mean to disturb you at this early hour, Donald. I know how much you cherish it as your quiet time for writing. But I was hoping we could chat for a few minutes.”

  “Of course. Come in. Would you like a cup of tea?”

  “I would love a cup. Thank you.”

  McDonald followed Lowry into Lowry’s private chambers. Lowry motioned for McDonald to take a seat on the couch across from the coffee table next to the fireplace. McDonald watched Lowry pour him a cup of tea from an elegant china pot.

  Lowry said, “This teapot was a gift from the chief justice of the Chinese supreme court. He presented it to me in Beijing at a dinner in my honor after the closing session of the first ever American-Chinese judicial conference. I cherish it.”

  McDonald observed Lowry shuffle toward him with a precarious grip on a teacup. The prudent course would have been for McDonald to meet Lowry at least halfway, but everyone who worked at the courthouse knew that Lowry always declined any concessions to his age. “Thanks, Donald,” McDonald said when the cup finally reached its destination. He took a sip. “This is a rare treat. I’m a coffee drinker.”

  Lowry folded into the chair across from the couch on which McDonald was sitting. “I’ve been a tea drinker for nearly sixty years.”

  “What sparked your taste for it?”

  “My year in England. It’s true what they say: the Brits are obsessed with their tea. It’s probably different now, what with us living in the age of Starbucks, but back in the dark ages, when I was across the pond, it was almost impossible to find a decent cup of coffee. It was Sanka or tea. I went with tea.”

  McDonald knew that Lowry’s year in England was the year he spent at Oxford as a Rhodes Scholar, the most prestigious academic opportunity in higher education and an opportunity reserved for the
best of the best. McDonald also knew that Lowry was too modest to mention his Rhodes Scholarship by name.

  Lowry smiled at his junior colleague, and added, “I know you didn’t drop by at this early hour to hear an old man’s trip down memory lane. So, Mr. Justice McDonald, what do you need to talk to me about?”

  McDonald reddened. “You’re correct, as usual, Donald.” He traced a finger around the lip of his teacup. He was stalling, and Lowry obviously knew it.

  “Come on, Peter. Spit it out. I’ve been on this earth for almost ninety years, and I’ve been on this Court for the last forty of them. Nothing you say will surprise me.”

  “I need to change my vote in Tucker v. University of South Carolina, and I need for you to change your vote too.”

  Lowry almost dropped his teacup. “I stand corrected. You have surprised me. But if I may be so bold, why do we need to change our votes?”

  McDonald fidgeted in his seat. His mind churned as he struggled to decide whether to tell Lowry the real reason for his request: to save Kelsi Shelton’s life. He decided against it. He hated to mislead a colleague, but he feared he would be putting Kelsi’s life in further jeopardy if he told Lowry the truth. Clay Smith had warned him to keep his mouth shut. McDonald couldn’t afford to call Clay’s bluff… . Kelsi couldn’t afford it.

  “Well,” Lowry said, smiling. “I’m not getting any younger. What’s the reason we need to switch?”

  “Sorry, Donald. My mind was elsewhere for a moment. I’m not a morning person.” McDonald took a sip of tea. He was still struggling with what to say. Finally he said, “The opinion just wouldn’t write, so I reread the briefs. I now think Senator Burton’s family has the better argument.”

  Lowry leaned forward in his seat. His eyes were locked on those of his younger colleague. Every Supreme Court justice took the job seriously—considered it a solemn responsibility—and Donald Lowry was no different. He said, “That might very well be, Peter. But my question remains: why do you think that?”

  “Because I’m not comfortable with a decision that further entrenches the idea that precedent is sacrosanct. As you know better than anyone, this Court overrules our own precedents, on average, about five times a year. I’m afraid my draft opinion is misleading in that regard.”

  “So you agree with Justice Witherspoon’s dissent?”

  Ralph Witherspoon was the most prolific member of the high Court. He had circulated a fifty-page draft dissent earlier in the week. It was a tour de force on the Court’s approach to precedent from the early nineteenth century, when John Marshall was chief justice, to the present, and it provided McDonald with the cover he needed for the request he was making of Justice Lowry.

  McDonald said, “Yes, I agree with Ralph’s dissent.”

  “And you want me to help you turn Ralph’s dissent into a majority opinion?”

  “Yes.”

  “Have you spoken with Ralph?”

  “No.”

  Lowry unfolded from his chair and shuffled to the credenza. He refilled his teacup. He didn’t ask McDonald whether McDonald wanted a refill. The elderly justice appeared lost in thought. “This is highly unusual, Peter. Not only is this the most significant civil rights case the Court has decided in a generation, but it’s your first opinion. The chief assigned it to you because he wanted you to hit the ground running. The media will savage you when they find out. And believe me, they’ll find out.”

  “I know. But I don’t care. I’ve never cared too much about what other people think.”

  At least that part was true. For example, many of McDonald’s former colleagues at UVA law school used to pander to the students by abandoning the Socratic method and by awarding high grades. McDonald never did. He refused to spoon-feed lectures to his students, and he was a notoriously tough grader. He once wrote an op-ed for the Wall Street Journal about the latter, which he entitled with tongue firmly in cheek, To B or Not to B. He gave his students B’s when they deserved them (and sometimes C’s!). His colleagues, in contrast, handed out A’s like Halloween candy. The dean would remind his grade-inflating charges that the law school needed to maintain standards, but chants of academic freedom always frustrated his calls for reform.

  “What about what your colleagues think? Do you care about that?” Lowry asked next.

  “Yes. But this case is too important to let that stand in the way.”

  Lowry studied his young colleague for a long moment.

  McDonald raked his hands through his hair. His eyes wandered through the expanse of Lowry’s elegant office. Forty years on the Court had generated many mementos: plaques from bar associations and law school officials, photographs with presidents and visiting dignitaries, and letters and expressions of appreciation from dozens of former law clerks.

  Lowry finally said, “Let me think about it. Let me get back to you in a day or two. I need to reread Ralph’s dissent. I need to reread the president’s brief.”

  Peter McDonald stood up from his chair and extended his hand to Donald Lowry. “Thank you” was all McDonald could think of to say to his senior colleague. He knew that Lowry knew the merits of the case weren’t what explained his request.

  CHAPTER 91

  Clay Smith gathered kindling for a fire so he could warm the oatmeal he had brought for breakfast. It reminded him of the camping trips he used to take with the Klan youth corps: a group of teenage boys and girls under the tutelage of a kleagle who would sleep under the stars and learn the ways of the sacred order. But there was a major difference between those days and this day: today, Clay was wanted by law enforcement around the nation for attempting to kill a UVA law student who once had worked as a research assistant for a law professor who was currently serving as an associate justice of the Supreme Court of the United States. To make matters worse, Clay had kidnapped that same law student to use as ransom to force the Supreme Court justice to change his opinion in the most important civil rights case the Court would be deciding in a generation. The plot had all the earmarks of a successful legal thriller—only this time the events were true.

  Clay tried to clear his mind of the risks he was taking and the punishment that would be inflicted upon him if caught—life in prison, almost certainly; perhaps the death penalty—and focused his attention on starting the fire. He stacked the kindling to allow the flame to breathe, sprinkled dry leaves and grass over the pile, and struck a match. The fire promptly sparked, and Clay expertly crafted it into a manageable inferno. He grabbed the Sierra cup that contained the oatmeal and called for Kelsi Shelton. “Breakfast.” Kelsi offered no response. “Breakfast,” he said again. Still nothing.

  He placed the spoon with which he was stirring the oatmeal on a cloth next to the fire and repeated his call from the front of Kelsi’s tent. There was still no response from her. “I’m coming in.” He pushed open the flap and discovered that she was gone. “Motherfucker!” he said. “I knew I shouldn’t have trusted that bitch!”

  Kelsi had promised Clay that she wouldn’t stray if he allowed her to sleep in the tent by herself. She had lied, obviously. But who could blame her? Clay had tried to kill her once, and he was threatening to do so again. Frankly, she had been surprised when he acquiesced to her request for privacy.

  Clay snuffed out the fire with the bottom of his boot and began a frantic search for Kelsi. Without Kelsi, he knew, he would have no leverage over Justice McDonald. Without leverage over McDonald, he had no way of forcing the desired outcome in Tucker v. University of South Carolina.

  “Kelsi!” Clay called out while he stumbled through the brush. “Don’t make this any more difficult on yourself than it needs to be.” No response. He stopped walking. He strained to hear even the slightest sound that might identify where Kelsi was hiding. All he heard were the ebullient songs of the bluebirds nesting in the trees and the brook babbling at the bottom of the hill. He started walking again. “Shit!” he said, after a thorn bush scratched his cheek. He was wiping blood from his face with his handkerchie
f when his cell phone rang. He checked the number. Area code 202. Washington, D.C.

  He said, “Hello.”

  “Clay?”

  “Yeah.”

  “It’s Professor McDonald.”

  “You mean Justice McDonald.”

  “Right. I still haven’t gotten used to my new appellation.”

  “You better get used to it. That’s the only reason Kelsi Shelton is still alive.” Clay was an experienced poker player. He had no idea where Kelsi was, but Justice McDonald didn’t know that.

  McDonald said, “Calm down, Clay. That’s why I’m calling. I managed to persuade Justice Lowry to change his vote. It wasn’t easy, and he seemed skeptical, but he agreed to switch. And I’m switching my vote too, obviously. That makes it five to four for Senator Burton’s family. That means the senator wins. It means you win. You can let Kelsi go now.”

  Of course, most of what McDonald was saying to Clay wasn’t true—or at least it wasn’t true yet. Justice Lowry had said that he would consider changing his vote; he hadn’t changed it yet. But McDonald was afraid that Clay would overreact—that he would kill Kelsi—if he told Clay that Lowry hadn’t made up his mind.

  Clay’s eyes searched the brush in front of him. There was still no sign of Kelsi. He knew that he had to continue his bluff too, although he had no way of knowing that Justice McDonald was bluffing. He said, “I’ll let her go the moment the Court’s decision is announced on the news. My cell phone has internet access, and I’ll check CNN.com in the morning.”