Deadlock

by James Scott Bell

  Then a give-and-take would ensue. Sometimes it would be brief, if the case was simple; for complex cases it could get rather lengthy. And for volatile cases, things could get heated, in a mannerly sort of way.

  Considering this first case and her take on it, Millie knew there would be flames. “Good afternoon, everyone,” she said.

  Eight heads nodded at her, with a few “good afternoons” thrown in.

  “Let us get right to it,” Millie continued. “Our first case today is from the Sixth Circuit Court of Appeals,” she said. “American Civil Liberties Union of Ohio v. Roland Tate, Governor. The facts are as follows.

  “In 1959, three years after President Eisenhower signed legislation making ‘In God We Trust’ the national motto, the state of Ohio adopted a similar motto, ‘With God All Things Are Possible.’ Last year the Governor of Ohio approved a bronze flatwork, twelve feet by ten feet, with the state motto inscribed, to be placed outside the statehouse in Columbus, Ohio. The ACLU of Ohio, joined by a taxpayer in the state, filed suit to stop this action. A divided three-judge panel of the Sixth Circuit held that the action violates the Establishment Clause. That is the issue we must decide. I will defer my own comments for the moment.”

  She noted a few bewildered looks. It had long been a tradition in conference for the chief to begin with a position statement. But Millie wanted to see where everyone else stood before weighing in.

  As the senior associate, Thomas Riley had the first word. “Well, this is a clear Constitutional violation,” he said.

  No surprise there, Millie thought.

  “The motto comes from a Bible verse, Matthew 19:26. It’s a verse where Jesus Christ is talking about the salvation of souls. Well, if the Establishment Clause means anything, it means the government should not align itself with Jesus Christ, or any other religious figure. That’s what Ohio is doing with this motto. It should be struck down.”

  Simple, clear, to the point. Millie had expected no less.

  On Riley’s left sat the next associate in seniority, Raymond Byrne, a twenty-three-year member of the Court and a consistent textualist. Naturally, the press always put his name on the conservative side of the ledger.

  “Surprise, surprise, I disagree,” Byrne said. There was good-natured laughter all around. Byrne, a glinty-eyed, third-generation Irishman, had the best sense of humor on the Court. “It seems to me that there is no difference between ‘With God All Things Are Possible’ and ‘In God We Trust.’ If the second passes Constitutional muster, then so does Ohio’s.”

  And so on around the table they went. Millie kept track in her mind, and when all was said the view of the case split perfectly, 4-4, among the so-called conservative bloc and what the press called the moderates.

  Justice Byrne, along with Justices Facconi, Johnson, and Parsons, were for the acceptability of the motto. Riley, joined by Weiss, Velarde, and the new Justice Atkins, thought it violated the Establishment Clause.

  Then all eyes turned to Millie.

  There was no avoiding it now. No place to hide. No bookcase that spun around into some secret chamber through which she could make an escape. Millie thought she could read the faces clearly. Riley looked especially gratified. He was a staunch separationist. He did not want any government, state or federal, to have anything to do with religion. He was clearly expecting Millie’s vote to be a favorable tie breaker.

  On the other side, Ray Byrne looked as he always did in years past when religion cases came along. He would be on the losing side, and set to write another of his lengthy dissents. His face was set in anticipation, his pugnacious jaw thrust out.

  For a moment that hung heavy and silent, Millie did not speak. She felt nerves exploding up and down her arms. She took a lingering sip of water.

  Finally, she spoke. “The Establishment Clause says ‘Congress shall make no law respecting an establishment of religion.’ It seems to me we have to understand what that meant to the framers of the Constitution.”

  She paused, flicking her eyes around the room. Already she could feel the thin tendrils of disquiet undulating from the moderates. She could understand the reason. No one had ever heard her say anything like this before. Going back to the framers’ intent was what a conservative judge would do. Indeed, Ray Byrne was leaning so far forward that his fighter’s chin almost touched the table. In keeping with tradition, however, no one interrupted her.

  “I went back to some historical cases and materials,” Millie said. “I began with James Madison and Thomas Jefferson, worked up to our decision in Town of Pawlet v. Clark, from 1815, written by Chief Justice Marshall, and all the way to Zorach v. Clauson in 1952. You remember that Justice Douglas said there, ‘We are a religious people whose institutions presuppose a Supreme Being.’ ”

  Justice Riley’s face was beginning to turn pink. Normally, the justices would be making casual notes on their vote sheets or legal pads throughout the conference. Now, not a single justice held a pen or pencil.

  Millie felt lightheaded. Was it hot in the room? No, the air was cool, the circulation perfect. But the future of the Court hung in the balance, and Millie held the deciding vote.

  “What is clear to me now,” Millie said firmly, “is that the original intent of the Establishment Clause was to prevent the institution of a national church. It was to prevent coercion. James Madison so understood it. But the clause was never intended to take out the expression of religious sentiment from the public square. Therefore I must conclude that the state motto ‘With God All Things Are Possible’ does not violate the United States Constitution.”

  Thomas Riley slapped the table with his open palm. A resounding whap bounced off the burnished walnut walls of the conference room. It was like a shot, the bullet ripping into Millie’s chest.

  Byrne, on the other hand, had a smile as broad as his chest. If eyes could dance, his were doing a jig with full orchestra.

  “I must say,” said Riley, his tone civil but cool, and undergirded by a smoldering intensity, “that this is a rather drastic departure from your previous Establishment Clause position.”

  Millie nodded.

  “Might I remind you,” Riley said, “that for you to take this stance you must renounce all your previous opinions on the subject?”

  “Of course I understand that,” Millie said.

  “May I ask for your reasons then?” Riley snapped.

  “Certainly,” Millie said. “This is not a question that can be decided without looking at the original intent of the Establishment Clause. In 1798 John Adams said, ‘The Constitution is made only for a moral and religious people. It is wholly inadequate to the government of any other.’ Justice Douglas echoed that sentiment in 1952.”

  “Yes, yes,” Riley said, “but Justice Black wrote about the wall of separation in 1947.”

  “In Everson,” Millie countered, “relying on a phrase in an obscure letter from Jefferson. Erecting a view of establishment based on such minor dicta was not good Constitutional law. It does not even reflect what Jefferson really meant. That can only be discerned by what he actually did. As president, for example, he used federal money to build churches and sponsor Christian missionaries. He established religious requirements for the University of Virginia. He was not a strict separationist by any means.”

  “It’s a policy that works,” Riley said.

  “Tom, our Establishment Clause jurisprudence has been pretty messy. We all know that. Maybe the founders had it right. In any event, can you honestly say any of them would have objected to a state having the motto ‘With God All Things Are Possible’?”

  Millie paused, and Riley smoldered. She had not seen him this way in years. It troubled her. But she had to continue. “I must hold that it is time to move back to the original understanding of the Establishment Clause.”

  Justice Byrne, who had been hanging on every word, shook his head. “I never thought I’d say this in a religion case, but Chief Justice Hollander, I agree with you.”

 
; For a protracted moment silence was heavy in the conference room. The other justices seemed too stunned to say anything. They appeared to be calculating the effects of this development.

  “I want a break,” Riley said, standing. Before Millie could say anything he was heading for the door. He slammed it behind him.

  All of the justices looked at each other. In ten years Millie had never seen a justice storm out of conference. Ever.

  “Well,” Justice Byrne said, “this has been an interesting afternoon.”

  2

  Will God kick thinkin’ in the pants? Charlene Moore thought.

  He would have to if she was going to win this argument. But she had truly left it to him. She no longer cared about winning the case for herself. It was for Sarah Mae. And Aggie.

  The judges – two men, one woman – sat like statues waiting for Charlene, as petitioner, to make her case.

  “May it please the court,” she began, “I am Charlene Moore on behalf of the petitioner, Sarah Mae Sherman. We are here to ask for a reversal of the district court’s decision to – ”

  “Counsel,” a judge interrupted. It was Foster Lucas, a Clinton appointee. “Isn’t the issue here one of changing the law? The district court judge, as I read the record, interpreted the statute. Are you here to tell us he was wrong?”

  Bam. Right to the point. Charlene looked up from her carefully organized notes.

  “We are saying he was wrong,” she said. “In interpreting the statute too strictly, the very intent of the law was frustrated.”

  “And you can tell us the intent of the law?” Lucas said.

  “Yes, Your Honor.”

  “How, pray tell?”

  Pray and tell, Charlene thought. “It is clear from the text itself what the intent is. The law means to protect pregnant women. That protection means nothing without full disclosure of all medical and psychological effects of a – ”

  “Let me stop you there, Counsel,” said the woman. She was a Reagan judge, Deena Lynn Caplin. “Where is the psychological aspect of this? What sort of harm are we talking about?”

  “Your Honor, when a woman terminates a pregnancy, she is taking a life. She is – ”

  “That is a religious statement,” Foster said. “It has no bearing on this issue.”

  “I disagree, Your Honor. It is not a religious statement. It is a medical one. Despite how the fetus is characterized, all sides must agree we are dealing with a living thing.”

  “But the question of humanity,” Foster said, “is one for philosophers or theologians. Not judges.”

  “But the state of mind of Sarah Mae Sherman is the issue,” Charlene said. “She believes her baby existed at one point in time. Now, the baby does not exist. That has had a devastating impact on her because the respondents did not disclose all of the relevant information about fetal development. They should have, because it impacted her mental state. Thus, they violated the intent of the informed consent statute. That is why I am asking this court to remand this case for trial.”

  And so it went for twenty more minutes. Charlene clearly read Foster. He was opposed to her position. Judge Caplin seemed conflicted. She was most troubled by the silence of the statute on the subject of psychological harm.

  The third judge, Gregory Knight, was another Clinton appointee, but something of a maverick. At least that was his reputation. Charlene could not read him at all, and he asked no questions.

  Then it was Larry Graebner’s turn to argue. As he spoke, Charlene noticed the judges asked no immediate questions. Apparently, they were deferring to the great legal mind of the Ivy League. Graebner’s argument was no different than that in his brief. But at the very end he dropped his bomb.

  “Finally,” Graebner said, “my opponent has tried to open the door on the matter of the humanity of the fetus. This is a code word for personhood, Your Honors, something the anti-abortion forces have been attempting to get the courts to rule on ever since Roe v. Wade. Well, I ask this court not to take the bait. A decision to do so will just add another layer of chaos to what should be a settled area of the law. This case never should have gotten to this point. I urge you to affirm the decision of the district court.”

  Charlene wanted to shout. She wanted to scream. She wanted to get up and ask if all sanity had been removed from the justice system. This case was about the nature of Sarah Mae’s harm, and what she was not told about her pregnancy. You could not separate this issue out, like some chef dividing egg whites.

  But she did not shout. Instead, she fought to remain calm as the judges filed from the bench.

  And then she saw one of them, Knight, glance down at Larry Graebner and smile.

  3

  Millie found Riley in his chambers. “Can we talk?”

  Riley motioned for her to enter. She did and closed the door, as his two law clerks watched with somewhat bemused expressions.

  “I guess I owe you an explanation,” she said.

  His eyes were indeed full of expectancy, though it was of an angry sort. “I guess maybe you do.”

  “I did a lot of thinking this summer,” Millie said. She paused, looking at him, wondering if he might say something. Some word of encouragement perhaps. He was as silent as stone. “I found occasion to reassess a number of things,” Millie continued.

  “Apparently so,” Riley snapped.

  She reached down into her heart, heavy inside her like a wet rag, for the affection she had for him. “Tom, I value our friendship. I always have. I don’t want anything to interfere with that.”

  “We’re talking justice to justice now. Put personalities aside.”

  “All right.”

  “What on earth has caused you to change your mind so radically on the Establishment Clause?”

  With her palms Millie smoothed her skirt. “I thought it through again, Tom. Believe me. I’ve spent weeks poring over the cases.”

  “But you’re a ten-year veteran, with a record that is clear and consistent. You don’t just wake up one morning and say, ‘Gee, I guess I’ve been wrong all these years.’ Do you?”

  “Perhaps I do.”

  Riley waited for an explanation.

  “Tom, I have become a Christian.”

  The austere silence of Riley’s chambers seemed suddenly ominous. Only the muted whir of the air system tethered Millie to an outside reality. The old justice sat frozen for an extended moment, and then said, “This is rather stunning news.”

  “I know. I – ”

  “Christianity? At your age?”

  “It’s not an age issue,” Millie said. “It is a matter of seeing things in a different way.”

  “But why now?”

  “I suppose the accident started it. It caused me to reflect on things. And on it went from there.”

  “Your mother dying, which we were all sorry to hear. Maybe that had something to do with it.”

  Millie nodded. “No doubt.”

  “Have you thought,” Riley said, “that such a traumatic event may have…” He waved his hand in the air, diplomatically.

  “Caused me to break down mentally?” Millie finished for him.

  “No, not that. But these things can throw us off.”

  “Tom,” Millie said, gathering all the earnestness she could. “I don’t feel off. I might have thought that once. But I’ve been approaching this like I would a case that comes before us. I’ve been reading and analyzing and taking notes. But I’ve also been praying and trying to listen. I know how odd that may sound to you, but I just believe it, Tom. I am a Christian because I believe it.”

  Riley said nothing. If he was reflecting on anything, Millie thought, it was probably his sudden demise into the Court’s minority on religion cases.

  “And now you’re suddenly what?” Riley said. “A Bill Bonassi-type justice?”

  “I am not a type,” Millie said.

  “Don’t be naive, Millie. You know how it is. People depend on the Court. They sense what it is doing and adjust. You
have been the swing vote on many crucial occasions. We all know that. The people know that. If you veer off in another direction all of a sudden, it’s going to wreak havoc.”

  “I don’t see this as veering off.”

  “Why not? You’ve done a 180 on Establishment. A complete turnaround. What are you going to do with, say, abortion? You’ve always supported a woman’s right to choose. Do you still?”

  The directness of the question hit her hard. “Just because I am a Christian doesn’t mean I am going to change my approach. I always take any issue as it comes up, case by case.”

  Silence for a moment, then Riley’s tone became fatherly. “Millie,” he said, leaning forward the way a concerned counselor would. “We’ve known each other a long time. You know how fond I am of you. And I understand what it’s like to go through difficult, confusing times in life. When my wife died in ’92, it was terrible. But I got through it. And I didn’t drop off the face of the earth. I didn’t change my entire life. I went on, the way I always had. And you can do the same.”

  “I can only promise,” she said, “that I will take great care how I decide cases, as always. I will not change the way I approach research and deliberations. But” – she looked at Riley, into the blue, intelligent eyes she knew so well – “we may not always agree like we used to.”

  “I hope,” Riley said without hesitation, “it won’t come to that. But if you suddenly throw this Court off in the opposite direction…” He shook his head. “I don’t want to have to fight you, Millie.”

  His words, almost whispered, hit her like a car slamming into her. Yes, that was it. Like her accident all over again. Her throat tightened. “I would hope there won’t be a rift,” she said.