Mr. Justice

by Scott Douglas Gerber

  McDonald paused and took a sip of water. “Most important of all for present purposes, the Constitution’s commitment to the individual rights principles of the nation’s founding document means that the affirmative action program at issue in this case, and similar plans in place at colleges and universities throughout the land, is unconstitutional. It—they—are inconsistent with the Declaration’s mandate that an individual be treated as an individual, not as a member of a racial group. It was inappropriate for the University of South Carolina to treat Alexander Tucker as a member of the white race rather than as a young man with unique strengths and virtues. This Court’s decision in Grutter v. Bollinger is overruled, the judgment of the U.S. District Court for the District of South Carolina is reversed, and the district court is hereby ordered to enter judgment for Patricia and Michael Tucker on behalf of their late son.”

  The courtroom quickly dissolved into chaos. Reporters rushed toward the exit so they could be the first to break the story, members of the Supreme Court bar dissected on the spot the merits of Justice McDonald’s opinion, and tourists who managed to be in the right place at the right time mentioned to one another how they had just witnessed history.

  Meanwhile, President Charles Jackson looked as if he had just seen a ghost, while Senator Alexandra Burton appeared like she had won the lottery.

  Burton had won it. Thanks to Clay Smith, she had won.

  CHAPTER 95

  Kelsi Shelton stared into the horizon as Clay Smith drove away in a blue Toyota. She didn’t bother to memorize the license plate. Clay had stolen the car when they were returning from the George Washington National Forest, and she was certain he would abandon it and steal a different one the moment he disappeared from sight. Besides, she was too tired to remember her name. There was no way she would be able to process a series of numbers on a speeding vehicle.

  Clay hadn’t said how Kelsi was supposed to get home from her present location: the parking lot of Crozet Pizza, about ten miles west of Charlottesville. She walked into the restaurant and asked if she could use the telephone. She dialed Sue Plant’s number. But before her best friend could answer, Kelsi heard from over her shoulder, “Hey, kiddo.” She turned to find Peter McDonald smiling and crying at the same time.

  “Hey,” Kelsi said. She started crying too.

  They hugged.

  “Are you OK?” McDonald asked.

  Kelsi answered, “I’m cold and hungry, and … and I miss Brian.” Her tears flowed like waterfalls.

  “Here.” McDonald removed his jacket and draped it over Kelsi’s slender shoulders. He noticed the manager behind the counter. “Can we get a large pepperoni, please? We’ll be over there.” McDonald pointed to a table near the radiator. He could warm Kelsi and he could feed her, but there was nothing he could do to comfort her about Agent Neal.

  The pizzeria’s manager was equally helpless. All he could say was, “It’s on the house.”

  An old Bruce Hornsby song sounded in the background. Hornsby was a god in Virginia—a local boy made good. A Williamsburg native, he had recorded a series of hit albums in the late 1980s, he had won the Grammy for best new artist, and he had toured with the Grateful Dead after the Dead’s longtime keyboard player died of a heroin overdose. McDonald himself enjoyed a personal connection to the gifted singer-pianist. Hornsby’s brother John, who co-wrote a number of Hornsby’s most popular songs, had graduated from UVA law school in the 1990s and had been one of McDonald’s brightest students. More meaningful still, John had arranged for McDonald and Jenny to meet Hornsby backstage for soft drinks and snacks after one of Hornsby’s sold-out concerts at UVA’s basketball arena. Jenny was nuts for Hornsby’s music—songs of lost love set to virtuoso piano grooves—and she used to tell her husband that, next to the day Megan was born, meeting Bruce Hornsby had been the greatest day of their married life.

  Jenny …

  Megan …

  “Are you OK?” Kelsi said. The tables had turned; now Kelsi needed to console McDonald.

  McDonald didn’t respond.

  “Peter?”

  Finally, he said, “Sorry. I was thinking about Jenny and Megan. This was our favorite restaurant. Jenny loved the fresh ingredients they put on the pizza—everything but the olives are grown on site—and Megan liked to play with the toys they have for the kids.” McDonald pointed to a large toy box in the corner by the door. “I wonder if Clay Smith knew any of that.”

  “I doubt it. How could he?”

  “I don’t know how Clay could know about it. But how could he know … how could he do … any of the things he has been doing?”

  Kelsi glanced out the window. Clouds painted pictures above the mountains. She said, “I’ve asked myself that question many times during the last several days.” She thought again about Brian Neal. She started to cry again. She whispered, “I guess it’s true what my grandmother used to say: It’s impossible to know what’s inside someone’s heart.”

  EPILOGUE

  The State of the Union

  CHAPTER 96

  Peter McDonald hurried down the corridor. His Cole Hahn loafers snapped against the marble floor like a dancer’s taps across the stage. McDonald was late for tea with Donald Lowry. Given what Justice Lowry had done for him, McDonald wanted to bring a gift, which explained his tardiness. He’d had a devil of a time locating the box that contained the author’s copies of his new book, The Ivory Tower. It was a legal thriller set at a fictionalized University of Virginia. Court watchers were surprised when McDonald’s publisher announced that the justice had penned a novel. Most observers had expected a treatise on constitutional interpretation from the former law professor. After all, several of McDonald’s colleagues on the nation’s highest court had published tomes about how they thought the Constitution should be read. McDonald knew about the justices’ books—he had studied and benefited from them—but he had stated in a press release that he had always enjoyed John Grisham’s novels and that he was eager to try writing one of his own. McDonald’s closest friends knew the back-story, though: the Court’s youngest jurist had written the book as escapist therapy … for himself.

  One of Lowry’s law clerks welcomed McDonald to chambers: “Good morning, Mr. Justice. Justice Lowry is in his office. He’s expecting you.”

  McDonald thanked the young man and knocked on Lowry’s open door. “Sorry I’m late, Donald.”

  Lowry had his back to the door. He said, “Think nothing of it, Peter. Come on in and close the door. The tea is almost ready.”

  McDonald complied. He sat on the couch across from the coffee table next to the fireplace—the same spot from which he had asked Lowry to switch his vote two years earlier.

  Lowry inched his way around a Persian rug with two teacups filled to the brim. McDonald was prepared to leap to the elderly justice’s assistance at the first sign of unsteadiness. As before, there wasn’t one.

  “Thank you,” McDonald said as he accepted the tea.

  Lowry folded into the armchair closest to the fireplace. “You’re welcome. I thought we would try some scented black tea this morning. It’s a more aromatic version of Earl Grey’s traditional blend. It’s scented with even more bergamot than the original.”

  McDonald took a sip. “It’s delicious. I have no idea what ‘bergamot’ is, but it smells good too.”

  Lowry chuckled. “I know I’m a bit obsessive about my tea, but everyone needs a hobby.”

  “Speaking of hobbies …” McDonald pulled a copy of his novel out from underneath his trench coat and presented it to the senior associate justice. “I thought you might enjoy this. It’s hot off the presses. I took the liberty of inscribing it for you.”

  Lowry smiled. “Thank you, Peter. In case you missed it, there’s a glowing review in this morning’s Washington Post. You’re apparently the new Scott Turow— plenty of twists and turns but also plenty of insight about how the world really works.”

  McDonald blushed. “I’ll have to read that review.” H
e took another sip of tea. “Read the inscription.”

  Lowry willed his arthritic fingers to the title page. He read the inscription aloud: “To Donald Lowry, A hero to us all and a friend for life. Thank you for what you did for me.” Lowry closed the book and said, “You’re welcome.”

  The law clerk who had greeted McDonald knocked on Lowry’s door and reminded the justice that he was scheduled to meet with a group of high school students in the cloakroom in five minutes.

  Lowry’s dedication to mentoring young people was legendary in legal circles. He said, “I’ll be right there.”

  The law clerk left the two justices to conclude their conversation.

  McDonald said, “Thanks again for the tea.” He placed his teacup on the coffee table, shook Lowry’s hand, and turned for the door.

  Lowry said, “May I ask you something before you go?”

  “Of course.”

  “Why did you need me to switch my vote? I know you needed my vote to get to five—the magical five—and I know what you said about not being comfortable with your original decision expanding our stare decisis jurisprudence. But four of our colleagues were comfortable with it, and scores of amici—including dozens of your former law professor colleagues—were comfortable with it. What was the real reason, Peter?”

  McDonald glanced at the fire. Flames cast shadows across the room. “The ‘real’ reason?”

  Lowry nodded. “Don’t worry. I promise I won’t tell.”

  Rain began to sound against the window behind Lowry’s desk.

  A tear came to McDonald’s eye. He finally said, voice cracking, “I did it for Megan.”

  “Your little girl?”

  “Y … yes.”

  “What does your daughter—God rest her soul—have to do with the South Carolina case?”

  Peter McDonald didn’t have the strength to say any more. He didn’t have the courage to describe how he had asked Donald Lowry to switch his vote to save Kelsi Shelton’s life and how he needed to save Kelsi’s life as a tribute to Megan.

  Kelsi, McDonald always knew, was the kind of young woman that he hoped Megan would have grown up to be.

  CHAPTER 97

  Article II, section 3 of the U.S. Constitution specified that the president “shall from time to time give to Congress Information of the State of the Union.”

  Alexandra Burton was preparing to deliver her first address.

  Burton had used her unexpected victory in Tucker v. University of South Carolina, and the sympathy that surrounded her grandson’s death that led to the lawsuit in the first place, to catapult herself into the White House. The history books would record that the first woman president had defeated the first African American president by the paper-thin margin of three electoral votes. Those same history books would fail to note that President Burton was also the first member of the Ku Klux Klan to be elected to the most powerful office in the world. The oversight couldn’t be attributed to any bias on the part of historians. Rather, historians didn’t know about Burton’s secret identity. Only one person outside of the sacred order knew.

  That person?

  Supreme Court Justice Peter McDonald, who had used his considerable research skills to confirm the rumor that Kelsi Shelton had shared with him when they were first reunited after Kelsi’s kidnapping. Kelsi had told McDonald that Clay Smith was in the Klan and that Clay had let it slip during the unguarded moment when he was telling her about her father that Senator Burton—now President Burton—was also a member.

  McDonald wasn’t able to confirm that this explosive rumor was true by reading the U.S. Reports or the U.S. Code … the answer wasn’t contained in a Supreme Court opinion or a federal statute. Instead, McDonald had discovered the truth in a sacred scroll housed in the Masonic Temple of Capitol Hill. The scroll listed every man—and now woman—who had ever served as the imperial wizard of the Invisible Empire. Nathan Bedford Forrest’s name was listed first. Alexandra Rutledge Burton was the most recent entry.

  * * * * *

  President Burton exchanged pleasantries with the congressional escort committee—senior leaders of the U.S. House and Senate—while she watched the House majority floor services chief announce the vice president and the members of the Senate, who then entered the House chamber and took the seats assigned to them. Members of the House were already seated. The House majority floor services chief next announced the president’s cabinet, the dean of the diplomatic corps, and the chief justice and associate justices of the Supreme Court of the United States.

  Two of the aforementioned dignitaries were absent from the speech. The first, a member of the president’s cabinet, was quickly identified by the media horde covering the State of the Union as the secretary of agriculture. This particular official was the “designated survivor,” the cabinet member who would provide continuity in the line of succession in the event that a catastrophe disabled the president, vice president, and other succeeding officers gathered in the House chamber for the president’s annual address. The second missing dignitary—an absentee who went unnoticed by the press—was Peter McDonald.

  President Burton arrived at the door of the House chamber. The House sergeant at arms loudly proclaimed, “Mr. Speaker, the president of the United States.”

  Cheers and applause filled the ornate room. President Burton walked slowly toward the Speaker’s rostrum, followed closely by the members of the escort committee. She shook hands, offered hugs, and posed for photographs with a myriad of congressmen.

  The president took her place at the House clerk’s desk and then handed the vice president and the Speaker manila envelopes containing copies of her address. She was awash in good wishes. Her chest swelled with pride at the thought of all the good she could do for the country … and for the Klan. Akia, she said to herself. A klanswoman I am.

  The Speaker of the House introduced the president to the representatives and senators: “Members of the Congress, I have the high privilege and the distinct honor of presenting to you the president of the United States.”

  More cheers and applause ensued. The president held up her hands to try to quiet the crowd. One “thank you” was quickly followed by another.

  Then, a shot rang out!

  Then, a second shot!

  The House chamber exploded into chaos.

  A dozen Secret Service agents pushed aside everything and everyone in their path and rushed to the rostrum. But it was too late.

  President Alexandra Burton was dead.

  Peter McDonald—Mr. Justice McDonald—prayed for God’s forgiveness as he retreated from the balcony and raced to his car.

  Clay Smith would be next.

  BIBLIOGRAPHY

  Fiction should entertain. It also can inform. I consulted the following nonfiction sources when researching this novel:

  Allen, James, Hilto Als, John Lewis, and Leon F. Litward. Without Sanctuary: Lynching Photography in America. Santa Fe, NM: Twin Palms, 2000.

  This source provided the descriptions for most of the lynching scenes in this novel.

  Booth v. Maryland, 482 U.S. 496 (1987).

  Brown v. Board of Education, 347 U.S. 483 (1954).

  Chalmers, David M. Hooded Americanism: The History of the Ku Klux Klan. 3d ed. Durham, NC: Duke University Press, 1987.

  This source provided most of the history of the KKK described in this novel.

  Dred Scott v. Sanford, 60 U.S. 393 (1857).

  Gerber, Scott Douglas. “Justice Thomas and Mr. Jefferson.” Legal Times, 5 May 2003, 60, cols. 1-3, 61, cols. 1-2.

  Gerber, Scott Douglas. To Secure These Rights: The Declaration of Independence and Constitutional Interpretation. New York: New York University Press, 1995.

  Grutter v. Bollinger, 539 U.S. 306 (2003).

  Nomination of Robert H. Bork to be an Associate Justice of the Supreme Court of the United States: Hearings before the Committee on the Judiciary, United States Senate, 100th Cong. 1st sess., 1987.

  This source was used in t
his novel for Peter McDonald’s opening statement to the Senate Judiciary Committee.

  Horowitz, David A., ed. Inside the Klavern: The Secret History of a Ku Klux Klan of the 1920s. Carbondale: Southern Illinois University Press, 1999.

  McGinnis, John O. “Impeachable Defenses.” Policy Review 95 (1999): 27.

  Newton, Michael, and Judy Ann Newton. The Ku Klux Klan: An Encyclopedia. New York: Garland, 1991.

  Parents Involved in Community Schools v. Seattle School District No. 1, 501 U.S. 701 (2007).

  Payne v. Tennessee, 501 U.S. 808 (1991).

  Planned Parenthood of Southeastern Pennsylvania v. Casey, 505 U.S. 833 (1992).

  Plessy v. Ferguson, 163 U.S. 537 (1896).

  Sims, Patsy. The Klan. New York: Stein and Day, 1978.

  Tucker, Richard K. The Dragon and the Cross: The Rise and Fall of the Ku Klux Klan in Middle America. Hamden, Conn.: Archon Press, 1991. This source provided most of the KKK terminology used in this novel.

  Wikipedia, “Robert C. Byrd,” last visited May 2, 2011, http://en.wikipedia.org/wiki/Robert_C._Byrd.

  Wikipedia, “State of the Union address,” last visited May 2, 2011, http://en.wikipedia.org/wiki/State_of_the_Union_address.

  ACKNOWLEDGMENTS

  I am grateful to various family members, friends, and colleagues who commented on drafts of Mr. Justice or otherwise provided encouragement. They include Jay Brennan, Dina Egge, Margot Gerber, Stanford Gerber, Kevin Hawley, Julie Hilden, Ken McDonald, Margaret McDonald, Sandra McDonald, Ron Mollick, Leslie O’Kane, and Dan Wewers. I am also grateful to Brown University’s Political Theory Project for hosting me during my sabbatical while I finished both a nonfiction book, A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787 (Oxford University Press, 2011), and this novel.