Barring Complications

by Blythe Rippon

  “Look, we all know Willoughby’s gay, whether or not she’s ever said so on the record. It is unconscionable to think she wouldn’t recuse herself from the case. Clearly—”

  “Now wait a minute, Abigail,” Roger cut in. “Are you saying that every female judge should recuse herself from rape cases? Every black judge should recuse himself from affirmative action cases? Every justice who has ever invested in the stock market should sit out any cases involving financial regulation? This quickly becomes a slippery slope.”

  As the two journalists continued to debate her ability to objectively interpret the Constitution, Victoria abandoned her post at the grill and sank into a deck chair. The wooden slats beneath her felt solid and she squeezed the edge of the seat, grateful for something hard to grab onto. Will trotted over to the sliding glass door and called to his son. “Hey, Tommy! Why’d you turn off the music? Will you put it back on, please?”

  Victoria barely heard his reply. “Dad! I was trying to find cartoons when I heard these people talking about Aunt Tori! She’s practically on TV! That’s so cool.”

  “Totally cool. Could you put the music back on now, though?”

  “Do I have to?”

  “Yes, buddy, you have to.”

  “Fine.” After a few seconds of a commercial and the Jeopardy theme song, Tommy’s channel surfing stopped on the requested channel. Victoria exhaled heavily as “Layla” filled her ears. She watched a couple of fallen leaves flitter across the deck until the base of the grill stopped their progress.

  “Tori?”

  Blinking, she turned to see Diane seated next to her. She hadn’t even felt the soft touch on her hand.

  Diane offered a small smile. “Listen, they don’t have anything on you. In the first place, they have no proof that you’re not straight. And more importantly, it’s ridiculous to think that you would need to recuse yourself.”

  Victoria noticed that Will had taken over at the grill. She tried not to sigh. “It doesn’t matter what they know. It only matters what they think they know. I never wanted the spotlight. That’s one of the reasons I was drawn to the Court in the first place. The media generally leaves the justices alone—at least, once the confirmation process is over. After that, we usually get all the space and privacy we need to focus on the law. This gay marriage case…” She trailed off.

  “Well, it’s only one case. You just joined the Court. This will pass, and you’ll have years on the bench. Shaping the laws of the country and all that.”

  Victoria nodded, gazing at the smoke coming from the grill. “I didn’t expect this case so soon.”

  “But you did expect it?” Diane asked gently.

  “Of course. A blind man could see this coming.”

  “Maybe if his name was Tiresias. I didn’t know. I really thought this process would play out in the legislatures.”

  Will cut in. “And at the ballot box.”

  “That strategy wouldn’t be sustainable,” Victoria said. “Eventually the country would reach a stalemate between red states and blue states, and the gays in Alabama and Mississippi would be left in the cold.” She knew she was assuming her lecturer voice, but couldn’t help herself. “Bodies such as the US Congress are theoretically dominated by majority opinion, which seldom goes out of its way to protect minority rights. That’s the balance that the courts offer this country: sometimes the majority fails the minority, and that failure needs a remedy. The only way to settle an issue like gay marriage is for the Court to issue a broad ruling on it.”

  Diane was looking at her with a mixture of respect and sadness, and she found herself offering comfort as she took her sister-in-law’s hand. “I’ll be fine, really. Don’t worry about me. Worry about what I’ll do to Jamison if he votes against gay marriage.”

  She glanced over at her brother, who was staring at the grill. He turned his head, his hazel eyes meeting hers, and they smiled at one another for a moment before she asked, “How are those kabobs doing?” She could tell he had forgotten they were even there.

  * * *

  From his booster seat at the table, Tommy put a bite of hot dog in his mouth before speaking. “We get to do ‘Day-Glo.’ It’s by some Harry guy.”

  Will rolled his eyes. “It’s ‘Day-O,’ son. And don’t talk with your mouth full.”

  “Not Day-Glo?” Tommy sprayed a little hot dog bun as he spoke.

  “Nope. Just an ‘O’ at the end. If you’re going to dance to it at the fall show, you’d better know how to say it.”

  “Oh. Okay. So, we get to do ‘Day-O.’ And the second graders get to do ‘Moves like Jagger.’ I wanna move like a jagger. Or a panther. That’d be cool.”

  The adults laughed. “Jagger is a singer, Tommy. And you need to sit still at the dinner table.”

  Victoria watched him still his wiggling with effort, only to start up again a moment later.

  “Ay-Tor. Ay-Tor!” Rebecca screeched. All eyes turned toward the toddler, who was now munching on Cheerios, her eyes still groggy from her nap.

  Victoria had lost her heart to Rebecca upon realizing that “A-Tor” was the best she could do with the mouthful that was “Aunt Victoria.” Turning puppy-dog eyes toward her brother, she asked, “Can I hold her, please?”

  “Sure, but don’t come complaining to me when she throws your food on the floor,” Will said.

  Victoria settled Rebecca on her lap and kissed the top of her head, smiling into hair the same strawberry color as her own. After sampling a few Honey Nut Cheerios, she murmured, “I love you, Rebecca.”

  “Wove A-Tor!” Rebecca squealed, putting her sticky hands all over her aunt’s face.

  Victoria repositioned her and tried to keep eating her dinner. But Rebecca seemed to make a game out of grabbing everything her little arms could reach, including food that wasn’t hers, and eventually Victoria gave up. She wasn’t particularly hungry anyway. Her stomach felt fluttery, and she knew it had nothing to do with her appetite. She rested her cheek on Rebecca’s head and looked at her brother and sister-in-law. “That’s it. I’m staying here forever.”

  “You can, you know. Standing offer. The in-law suite is yours if you want it,” Will said.

  Victoria leaned back in her seat and sighed. This house in Alexandria, full of love and life, struck a stark contrast with her comfortable, yet often lonely bi-level in Donaldson Run. It was tempting. “No, I need my space. Besides, there’s no way I would subject you all to tabloid reporters hiding in your bushes and video cameras pointed at your front door.”

  “Do you really think it will be that bad? Justices usually fly below the radar, don’t they? You’re not as glamorous as Hollywood.”

  Both women rolled their eyes at Will’s predictable lack of tact.

  Diane turned to her husband and took his hand in hers. “You know this has teeth, Will. It’s sex and politics and gossip all rolled into one.”

  Will nodded briefly, before turning mischievous eyes on his older sister. “Well, babe, if they’re going to come after you about who you might potentially sleep with, I think it’s time you actually started sleeping with someone.”

  Diane hit him with her napkin as Tommy asked through a mouthful of food, “Aunt Tori, are you going to have a sleepover? Can I come?”

  Three sets of eyes bored into her, two of them sparking with laughter and one genuinely curious. “No, Tommy, no sleepovers for Aunt Tori.”

  All three pairs of eyes looked disappointed.

  “Whatever you’ve been waiting for, Victoria, I think it’s happened. You might as well start living a little.” Diane nudged her.

  Rebecca took this opportunity to knock over Victoria’s beer, and as the golden lager cascaded off the table and onto her khakis, she wondered if her young niece knew how perfect her timing was.

  * * *

  Four hours later Victoria leaned over in bed to put her book and glasses on the nightstand. She had wondered which would be more torturous: reading all of the speculation on whether the Cou
rt would vote to hear the gay marriage case and if Justice Willoughby would abstain from voting, or ignoring the press altogether and living in ignorance. Deciding that she could always inform herself later, but could never undo reading a particularly vicious attack on her objectivity, she had begun Doris Kearns Goodwin’s Team of Rivals instead. Perhaps reading about the Civil War might offer some insight into a country still riven by fear of difference.

  Hoping she had read enough to still her spinning mind and actually get some sleep, she pulled the chain on the light atop her nightstand. Despite the warm September air wafting through the open windows of her bedroom, she burrowed beneath her down comforter and jersey-knit sheets. Sleep proved elusive. She closed her eyes, but her mind kept racing, covering the same ground over and over about judicial recusal, gay marriage, and the media. She was struggling to redirect her thoughts to the bizarre relationship between Abraham and Mary Todd Lincoln when the shrill tones of her landline jolted her upright. She fumbled for her glasses and the lamp before grasping the phone, wary of who might be calling her at midnight.

  “Yes?” she asked.

  “Justice Willoughby? Damien Fitzpatrick here, from the Star Reporter. I have a source telling me that the Court has decided to hear oral arguments for the gay marriage case. Don’t you think it’s unethical for you to hear the arguments, considering you’re a lesbian?”

  And so it begins, she thought. She knew that Fitzpatrick had no such source. None of the justices would reveal their votes from their private conference until the docket was set. The lack of conclusive information would motivate reporters from tabloids such as the Star Reporter to fabricate sources. What she didn’t know was how he had learned her phone number.

  “Mr. Fitzpatrick, it’s midnight, and completely inappropriate for you to call me at this number. I trust you will never do so again. Good night.” She hung up without waiting for a reply. First thing in the morning, she would instruct her secretary to change the number of her landline. She thought again about giving it up entirely, but landlines were still handy in emergencies.

  For now, however, she simply removed the receiver from its cradle and threw a pillow over it to muffle the beeping.

  Wide awake now, but knowing she wouldn’t be able to focus on Lincoln’s appointment of his political rivals to his inner cabinet, Victoria turned on the television and settled in for a long night.

  Chapter Two

  The day after the Justices’ Conference, Victoria sat at her desk in her chambers and considered the proposed fall docket. She was making edits when the door opened and Alistair Douglas stuck his head in.

  “You want lunch?”

  Victoria pulled her glasses off her face. “What are we having?

  “Chinese okay?

  She grinned at him and realized it was the first time she’d smiled all day. “Sure. Thanks for asking, Alistair.”

  He disappeared through her office door and she resumed reading the docket draft that the justices’ clerks had devised last night after their bosses went home. She drew a couple of arrows, switching around the order of things. With all the hype around the marriage case, she wanted to carefully plan its position on their docket. She indicated it should be in December, before their winter recess. That would buy her some time on the front end to start greasing some wheels before they even heard arguments, and on the back end before a decision would be expected in June.

  She wondered if this was the best gay marriage case to put in front of the Court. The four plaintiffs—as per usual, a lesbian couple and a gay male couple—were legally married in Iowa. They sued the federal government under the Equal Protection Clause for its failure to fully recognize their marriage. At stake in the case was the fundamental right to marry. If the Court heard Samuels, they would have the opportunity to issue a sweeping decision on gay marriage, once and for all. But the lawyers representing the plaintiffs—well, Victoria couldn’t believe that the gay rights organizations backing the case had allowed those subpar attorneys to argue their cause in Iowa.

  She knew that it would fall to her to persuade Jamison or another of her conservative colleagues to vote in favor of marriage equality. But at forty-seven, Victoria Willoughby was the youngest of the justices, both in terms of age and seniority on the bench. She had barely had the opportunity to get to know her colleagues.

  She was turning to the final page of the docket draft when Alistair returned.

  Justice Alistair Douglas was the closest thing Victoria had on the Court to an actual friend. The job was so demanding and divisive that the justices rarely socialized with each other outside of work. Besides, while she respected her colleagues, Victoria wasn’t quite sure that they all had personalities. Sometimes she imagined Ryan Jamison was really a robot that an ambitious science nerd had foisted on the American judicial system as some kind of twisted joke.

  But Alistair was kind and charming, and Victoria surmised that in his day he had been quite a ladies’ man. He was twenty-five years older than her, but wore the years well. After Victoria had been confirmed, Alistair had taken her under his wing, welcoming her as the newest liberal member of the highest court in the country.

  “So how you holding up, kiddo?” he asked, gingerly lowering himself into one of her two easy chairs. She noted that the arthritis in his hip seemed to be getting worse.

  “Good. I’m good, Alistair.”

  He scrutinized her appearance before nodding and letting it drop. “How was your recess? Did you cavort about listening to Justin Bieber or whatever else you young people do these days?”

  She laughed at his attempt to sound stodgy. Truth be told, he was definitely the more hip of the two of them, arthritis jokes aside. “How’s the family?”

  “As good as it can be when my daughter’s married to a Republican and my son still goes to Burning Man. I swear, fifteen minutes with those two effectively settles the nature versus nurture debate.”

  “You sure you didn’t feed one of them paint chips?”

  Alistair snorted. “Which one?”

  Victoria waved her hand. “Take your pick. I could never marry someone whose political views differed so substantially from my own, and I could never spend a week picking sand out of my clothes while smelling a bunch of unwashed hippies get high.”

  Alistair huffed. “Please speak more respectfully of the transformative experience that is Burning Man.” He struggled to say it with a straight face, and before long both of them were snickering. “It must be a generational thing. I just don’t think a forty-two-year-old father of three should abandon his family for ten days. Vacation time is precious, and I don’t understand why he would want to spend it away from his wife. Me, I’d want to spend every day of my vacation with my wife, ten times out of ten.”

  In that moment, Victoria envied him his family. Granted, she had Will’s family. But it wasn’t the same. She didn’t have a partner to vacation with. To complain about children with. To turn to when work became unbearable. It had never really bothered her before.

  “Different people make different choices, I suppose,” she said, trying to keep any hint of sadness out of her voice.

  “Victoria.” He studied her. “Why did you choose this?”

  “This?”

  “Being a justice. What inspired you?”

  She leaned her head to the side, considering. “When I was nine, my mother and I were in New York on our first ever mother-daughter trip. We were in the hotel elevator heading up to our room when Earl Warren stepped in. He had just retired as chief justice, not that I knew that at the time. I had never seen my mother so flustered. When the elevator stopped and Warren was leaving, she said, with absolutely no grace whatsoever, ‘Can I have your autograph?’ She had always said autographs were weird and the people who collected them even weirder. Well, Warren didn’t have any paper, and neither did my mom, so he signed the back of his receipt for the hotel restaurant. I remember he had ordered two scotches and tipped generously. When we got up to our room, m
y mom gave me this speech about how he had fundamentally changed the social fabric of the country by undoing segregation. And then she said that one day there would be a woman on the court.”

  “Ah, the ways our parents shape us.”

  “Indeed.”

  “Was she thrilled when O’Connor joined the bench?”

  “Ecstatic.”

  “And were you disappointed?”

  “Disappointed? Why would I be?”

  “I assume from your story that you had wanted to be the first.”

  “Not at all. Firsts are so scrutinized. They seem to be remembered only as being a first, and not for what they do. I never wanted that,” Victoria said.

  “Well, I don’t think that applies to O’Connor. She’s widely regarded as an excellent jurist, wouldn’t you say? People remember her as much, or more, for her decisions on abortion and Bush v. Gore, than for being the first female Supreme Court justice.”

  “Maybe. I’m not O’Connor though.”

  “No, you’re Willoughby. And if you also happened to be the first, hmm, cross-eyed, noseless woman on the bench, I think you would be remembered for more than that.”

  “Really? That’s a pretty big hurdle to surmount.”

  “Okay, true. In that case, if you’re not the first cross-eyed, noseless woman on the bench, then you’ll be just fine.”

  She smiled faintly.

  “Well, Victoria.” Alistair crossed his legs, grimaced, and uncrossed them. “Please forgive my presumptuousness, but my clerk Sunmin is putting together a memo about judicial recusal. She’ll have it on your desk by tomorrow.”