Millie silently prayed, thanking God for trusting her, asking one more time for her mind to be primed and ready.
Then she saw Lawrence Graebner approach the podium. “May it please the Court,” he said.
The justices allowed him to argue for nearly five minutes without a question. Millie felt herself wanting to engage Graebner herself. Old habits.
“The use of the term unborn child in the statute is clearly unconstitutional,” Graebner was saying. “It is a loaded term with only one view in mind, to stop an approved medical procedure from taking place.”
Ray Byrne spoke. “Don’t you think it’s time we looked at this whole question again? In Roe Justice Blackmun tied up this issue with medical knowledge. Haven’t we had progress in medicine in thirty years? Aren’t we behind the times?”
Graebner did not hesitate. “On the contrary, Roe has proven its worth over the last thirty years, and this Court should resoundingly reaffirm it. A world of expectations has been built upon it. It has allowed a national controversy to be resolved, however contentious that effort may have been. To overrule or eviscerate Roe now would open up the floodgates of disaster.”
Byrne did not follow up. Millie saw Thomas J. Riley nodding slowly.
2
Anne Deveraux, inmate number 03-99873, could not stop crying.
She’d done fairly well for two months. She had managed to get a good night’s sleep for a change, even with a new cell mate who snored like a Georgia chainsaw. But when she woke up and realized she was still in prison, she broke out in a torrent of hot tears.
Her cooperation with the feds in the case against Ambrosi Gallo was enough to garner her a ten-year sentence, and with the right breaks she could be out in seven. But seven seemed like forever, and what would she do when she got out? The Calibresi family would have her on their short list for early retirement.
She’d probably have to stay away from New York City for the rest of her life. Some life. She felt all of the toughness she had built up so carefully over the years turning to warm putty in her stomach. She was no longer the power monger, the mover and shaker, the politico with an unlimited future. She was just another number in a cage.
She had not cried like this since she was a little girl. And no one was going to help her. She had no family, and those with whom she had so carefully networked over the years were dropping her faster than a politician’s promise. Even Cosmo had not contacted her since the arrest.
Damaged goods was a generous description of what she was now.
Her crying drew a response from Sheela, her cell mate. She had been a prostitute who sold crack to an undercover agent and got twenty-five years. She seemed strangely serene about it. “Won’t do you no good to keep on like that, honey,” Sheela said.
Anne couldn’t help it. Maybe part of it was the irony of this day. She’d seen the Post, which she got days late in the prison library. Arguments were scheduled today in that abortion clinic case, and one of the lawyers was Millicent Mannings Hollander! Unbelievable, after all she and Levering had gone through over her.
Yet there Hollander would be, standing in front of the Supreme Court, while Anne was locked away in a cell, losing the best years of her life.
She kept her face in her pillow, wondering if Levering’s way out was perhaps the best solution after all.
The whole thing with his son had been so weird. It was like he knew something, knew her. Those times she had seen him had been creepy. But creepy in a way that was almost too real. It’s not too late, he had said.
How did he know she was going to end up in here? Now it really was too late.
The tears kept coming.
3
And then it was Millie’s turn.
As she stood she gave a quick glance into the gallery. Charlene Moore sat with Sarah Mae and Aggie, all three looking nervous. Jack was in the back, having flown out with Rosalind from Santa Lucia for this slice of American history. The rest of the place was packed with reporters, politicians, and a handful of the public, the ones who had lined up at 3 a.m. in order to get a seat for the show.
And what a show Larry Graebner had just put on. He was brilliant. Millie had heard him argue half a dozen cases when she was a justice. Never had he been more eloquent, more on top of the issues. Every question he was asked gave him another opportunity to demonstrate his legal virtuosity.
Millie placed her notes on the podium and looked up at her former colleagues. For a second their faces seemed to melt into one another. The chamber seemed suddenly as silent as a tomb. But she was ready. “May it please the Court,” she said. “The informed consent law at the heart of this case has one purpose, as clear from its language as its statutory history. That purpose is to protect the health of women who are considering the most important moral choice of their lives, the decision to end a life.”
Justice Arlene Prager Weiss immediately interrupted. “Counsel,” she said, “aren’t you assuming the very question you ask us to decide? Part of your argument, it seems to me, assumes that a fetus constitutes a life in the sense of personhood. The statute says unborn child. But we have rejected that argument in the past. You yourself penned an eloquent defense of Roe in the Messier case to that effect, did you not?”
Millie had anticipated this query, either from Weiss or Riley.
“My rationale in Messier,” she said, “was expediency. The question now is whether that rationale was sound. Yes, the case itself is precedent, but this Court has not hesitated to overturn precedent when convinced the rationale should no longer hold. It happened when Brown overturned Plessey v. Ferguson and brought equal justice to people of color. I am suggesting that this case is another of those times.”
“But Justice Hollander,” Preston Atkins said, “to do that we would have to find that the fetus is a person within the meaning of the Fourteenth Amendment, would we not?”
The question cut right to the heart of things. Of course Atkins – and Weiss and Riley – were right to put that challenge to her.
But as she opened her mouth to answer, the words stopped in her throat. She looked back at Atkins, then, to his left, caught the eye of Thomas J. Riley. He was staring, almost as if looking through her.
She found herself answering Atkins’s question while looking at Riley. “That inquiry must be secondary, Your Honor, it seems to me. There is a preliminary question that must be answered. This Court must decide, once and for all, what first principles will be used to decide these issues.”
Riley’s eyes ignited with fire. “Just what first principles are you talking about, Counsel?” he asked.
4
Anne Deveraux got that feeling again, the one she’d experienced right before she’d been arrested.
That called-to feeling, from somewhere beyond her understanding.
What was that all about?
She was alone for a moment now, her cell mate out for yard time. It was eerie, and she thought for a moment she was going to go certifiably crazy.
Wouldn’t that be cute? Get out on a mental, and spend the rest of your life on drugs, shuffling around in slippers down white-walled corridors?
The image reminded her, for the first time in years, of her room as a little girl. The one time she could remember being happy in her childhood. Her stepfather was gone, her mother was there, and she wasn’t drinking.
She came into Anne’s room, where the walls were painted white, and Anne was almost asleep. And her mother rocked her in her arms and sang a song. It was a silly song, Anne couldn’t even remember the words. But the words were not important. Her mother’s arms were.
No more arms. Not here. Not ever.
5
“We must start with the founding documents,” Millie said. “All men are created equal, and endowed by their Creator with certain inalienable rights.”
“The Declaration of Independence is not the Constitution,” Riley snapped.
“That is not the view of the Court in the past,” Millie said, marvel
ing at her own words. A year ago such a sentiment would have been unthinkable coming from her. “Our decisions throughout the 1800s consistently called the Declaration ‘part of the fundamental law of our nation.’ Only in the last forty years have we drifted from that view. Are we going to say now that our predecessors on the Court were wrong or naive?”
Millie glanced left and saw Larry Graebner watching her, a look of complete bafflement on his face. He seemed to be thinking, Are you absolutely crazy? That only emboldened her. “I am calling upon this Court,” she said, “to reaffirm the basic tenets of our founding. Without those principles, we will continue to be a nation on a collision course with itself. This case makes that clear. That a young woman can be denied – ”
“We’ve guided our ship of state pretty well under the law of the past thirty years,” Weiss interrupted. “Shouldn’t we consider the drastic political consequences of changing course?”
“The decisions of this Court do have political consequences,” Millie said. “We all know that. But the Court was never meant to have political intentions. In a Constitutional democracy, this Court was not conceived as the institution that creates law. Or that overturns laws duly passed, so long as such laws do not violate any Constitutional provision.”
For the next few minutes several of the justices asked questions about that very thing – the constitutionality of the informed consent law and its various sections. The larger issue Millie had begun to argue was lost. But she knew she had to answer the questions asked. In the back of her mind, she was hoping for – praying for – one more chance to return to the issue.
Oddly, Justice Riley was silent now, though Millie sensed he was deep in thought.
Finally, just before her time was up, Riley leaned forward in his chair. “Aren’t you asking this Court to decide in such a way that will tear at the very fabric of our nation?”
Millie saw in him a real anguish. How well she understood it. “Your Honor,” she said, “like one of my judicial heroes, I believe truth conquers all things. It may be a long struggle before the conquest, but ultimately it is the only struggle that counts. It counts for Sarah Mae Sherman, and for all the future Sarah Maes. But it also counts for the soul of the law, and for this great edifice we call justice – ”
The red light on the lectern illumined. “Thank you,” Chief Justice Atkins said. “Your time has expired. This Court is now adjourned.”
The nine justices stood and filed slowly out of the room. Millie watched them, her former colleagues, as they disappeared behind the velvet curtain.
She had never felt so spent. She turned and looked into the gallery. Her supporters were all there, nodding in affirmation.
And then she looked up. Her gaze fell on the marble frieze depicting the eternal struggle for justice, the one she had come to know so well when she was sitting on the dais. She smiled, and silently thanked God that she had had the chance to be part of the struggle.
6
Sheela came in from her yard time, holding something. “Hey,” she said to Anne, “you were a lawyer, right?”
Why the sudden questioning, Anne wondered. “I never finished law school,” Anne said. “Started working in D.C.”
“Honey, you sure did take a wrong turn.”
Anne heard herself admit, for the first time in her life, “Yeah, I messed up pretty bad.”
Then Sheela tossed her some papers. “Got that at the chapel,” she said. “Thought you might be interested.”
Anne looked at it. It looked official, like a legal brief.
“Maybe you want to come hear the Word sometime with me,” Sheela said. “Keep you from cryin’ so much.”
Sheela was into Jesus. Talked about him constantly. Anne didn’t want to hear it. Now, she thought, maybe sometime she’d go to chapel with Sheela, if for no other reason than to break the monotony.
Anne lay down and took a look at the brief. The first page had a section called “Statement of Facts.”
I have been in jail. I have nearly died. I have lost the people I loved more than anything in the world. I wonder sometimes why I didn’t take my own life. I think I know why now. God isn’t finished with me yet.
What was this? Anne looked for a name on the brief and found it on the last page. Some guy named Jack Holden. Now who was…
Then it hit her like a rifle shot. Wasn’t that the guy’s name, the minister, the one who had been tied up with Hollander when Dan Ricks was on the job?
Same guy! Had to be. She looked back at the page. It was blurred and Anne realized, once more, she was crying. Only this time the tears were not out of deep despair. She had no idea what they were from, but it was like her heart knew – beyond the edge, better than the edge – there was something other, out there, as if on the other side of a door.
Anne wiped at her eyes, amazed, and started once more to read.
CHAPTER TWENTY
1
Friday, December 3
The Supreme Court’s 4-4 deadlock in an abortion rights case earlier this week raises serious issues of national policy, experts say. What is baffling, leading court watchers note, is that the Court announced its decision in Sherman v. National Parental Planning Group by way of a short, per curiam opinion, meaning it came from the Court as a whole with no individual justice signing an opinion.
“It’s obvious one of the justices refused to rule,” said Yale Law Professor Lawrence I. Graebner, who argued on behalf the NPPG before the high court. “Frankly, I can’t imagine which justice would do that. What’s worse is that this leaves the door open to a possible rollback of Roe v. Wade sometime in the future. I’m very troubled.”
The court’s decision has no national effect. It leaves in place the decision of the Eleventh Circuit Court of Appeals which had remanded the case for trial.
“This is a victory for the one who counts most, Sarah Mae Sherman,” said Millicent Mannings Hollander, the former chief justice who argued Sherman’s case before her one-time colleagues. “She will have her day in court, and the NPPG will be held accountable for its actions.”
Speaking by phone from her office in Santa Lucia, California, Hollander added, “The larger debate must also continue. We now have an opportunity to engage in a new national discussion about what’s best for us as a nation of laws.”
Helen Forbes Kensington, president of the National Parental Planning Group, could not be reached for comment.
2
“Who do you think it was?” Jack Holden said.
“I have a feeling,” Millie answered.
They were outside on the basketball court behind the church. The warm winter had preserved the wildflowers of the Santa Lucia valley, and today they seemed to have dropped directly from the palette of God.
Across the valley the sleeping giant was still flat on his back. Sometimes, as a girl, Millie had wondered what would happen if the giant suddenly woke up, stood, and made his way toward the town. How would the people react? Would they run, or would they welcome him as an old friend?
Then she wondered – if enough people awoke from their moral slumbers and began to return to the true source of all law, what would the rest of the country do? Scream? Or recognize a forgotten friend? She knew much of her future work was going to be tied up with those questions.
The partnership of Hollander & Wilkes had made national news with the Sherman case. The Washington Post ran a piece entitled “From Big Time to Small Town.” But the partnership did not feel small to Millie. It felt perfectly woven into the tapestry of her life.
“So who?” Jack said, bouncing the ball in front of him with staccato impatience.
“Thomas J. Riley,” she said.
“Riley? No way. Why would he do that?”
“I don’t know. To give the debate back to the people, maybe. I do know Tom loves the Court as much as I do, and has a deep well of integrity. I know he believes that sign on his desk. Vincit omnia veritas. Truth conquers all things.”
Jack thought a momen
t. “So he was the judicial hero you quoted in your argument?”
Millie nodded.
Jack bounced the ball a few more times. “Do you believe truth conquers all?”
“I believe a lot of things I didn’t used to. For instance, I believe God weaves patterns.”
“I do too,” Jack said. He held the ball. Then he smiled. “Maybe,” he added, “part of the reason this all happened was so you could come back to Santa Lucia and marry me.”
He bounced the ball once, as if to create an exclamation point. Then he waited for a response.
Millie felt a gust of desert air, pure and clean. She was back home, but Santa Lucia was not the place it once was. The past, with all its hurts and confusions, had somehow faded, like an old sepia-toned photograph left out in the sun. The place where she was living now was new; it gave her the feeling of starting over.
But with a minister? As a wife? What sort of pattern was this?
“Tell you what,” Millie said, her heart beginning to dance. “You make a ten-foot hook shot, and I’ll consider it.”
The preacher’s smile widened as he turned toward the basket.
“Right-handed,” Millie said.
Jack pointed at her. “No problem.”
He bounced the ball a couple of times, looked at the basket, then launched his shot into the air. It arced beautifully, then hit the front of the rim and clanked out.
Jack stood there, frozen, as if couldn’t believe he’d missed.
“Good thing we’ve got all day,” Millie said.
ACKNOWLEDGMENTS
Deadlock Page 28