The Outsider

by Anthony Franze

  “I bought it on eBay of all places. With a name like Douglas,” the chief said, referring to the notoriously unpopular Justice William O. Douglas who left the court in the seventies, “I thought it was good to remind everyone I’m not going anywhere either.”

  Gray laughed at the Douglas reference, which also seemed to please the chief.

  “How’d you know the Thurgood Marshall story, if you don’t mind me asking? None of my clerks had any idea what the thing was. You a Marshall fan?”

  The chief was too polite to ask, but he was wondering how an immigrant from a rough part of the city could become a court watcher. Not unfair. Gray’s first memories of America were walking to the run-down public library so his parents could study U.S. history and government for their citizenship exams. That library would later serve as the one place Gray could escape the pressures of the neighborhood. He remembered a judge swearing in his parents, and something about this powerful man in a black robe who made his mom and dad so happy stuck with him. Shortly after they became citizens, his mom took Gray and Miranda on an outing to the Supreme Court. He remembered staring at the gleaming white temple. The marble columns thicker than old redwoods. On either side of the plaza, giant statues of a man and woman, like guardians outside an ancient tomb. The look on his mom’s face. Her words: One day, you could be a justice, Grayson. She believed it. And secretly, as his classmates spiraled into drugs and crime, he believed it too.

  “Oh, I’m no expert, just a history buff. Something my mother got me into.”

  Justice Douglas spent the next half hour showing Gray his Supreme Court memorabilia collection. “Speaking of history,” the chief said as he escorted Gray to the door, “it’s interesting that your name is Gray.”

  “Why’s that?”

  “The first justice to ever hire a law clerk was Justice Horace Gray back in the 1800s.”

  That bit of history Gray didn’t know.

  “I’d like you to clerk for me,” the chief added. “And I’d like you to start right away.”

  Gray had never believed that something could make a person speechless, but there he was, frozen, mouth agape. He felt like he did when the guy in the ski mask had charged him. Heart thumping, time suspended.

  The chief studied him, a hint of amusement on his face. “So?”

  “It would be an honor. But, I mean, can you do that? The term already started. I never clerked on a lower court. And you already have four clerks.”

  The chief barked a laugh. “One of my predecessors had a saying: ‘With five votes you can do anything around here.’ But when it comes to hiring my clerks, I only need one vote. And I just made it.”

  CHAPTER 7

  Gray started the next day. Not much time for it all to sink in. The other law clerks weren’t openly hostile to their new colleague, but the reception he got wasn’t exactly warm either. He suspected they didn’t think he’d earned a position they’d clawed over thousands of Ivy grads to get. But there was more to it than that. He wasn’t one of them. Oliver Wendell Holmes once described the justices as “nine scorpions in a bottle,” but that seemed a better fit for his co-clerks, whose stingers were pointed in Gray’s direction.

  There were four of them. Keir Landon, the JFK wannabe, was as dismissive as ever. Mike Dupree was less friendly to Gray than before, but at least he didn’t call him Greg. There was Praveen Bhandari, a serious Indian guy. And last, Lauren Hart, a beauty, someone Gray already couldn’t stop thinking about. In a stroke of luck, the chief assigned Lauren to show him the ropes.

  “All you need to know,” Lauren said in her ten-minute orientation, “is that there are five key tasks of a clerk: pool memos, death penalty stays, bench memos, drafting opinions, and the most important task—whatever the hell the chief justice needs.”

  Helpful.

  When he probed, she started with the first task. “Pool memos are short memos we write that are used by all the justices, not just the chief. They summarize each of the seven thousand requests the court gets from litigants asking the court to hear their cases. The justices take only about seventy cases, so the memos are an important part of the screening process.”

  “We take only seventy out of seven thousand?” Gray asked.

  “Yeah, ‘We are the one percent,’” Lauren said in her dry way. She explained that the clerks from all nine chambers split up the docket and wrote memos summarizing each case. They even made recommendations on whether the court should accept a case for review—whether to grant certiorari, or cert. If the clerk recommended that the court deny cert, the case ended up on the “dead list.” No justice would ever evaluate the case. If a clerk recommended that the court grant cert, the case would appear on the “discuss list,” which the justices would go through at their secret conferences held about every other Friday.

  “So what stops us from ginning up the memos for issues we know the chief wants to hear? Writing the memo in a way that makes the other justices think the case is cert-worthy?” Gray asked. “Or making a worthy case look like a dog if we know the chief doesn’t want the other justices to mess with the law?”

  Lauren shook her head. “You think you’re the first person to ever think of that?” When she frowned the dimples on her smooth cheeks were more pronounced. “Every memo we write gets scrutinized by the clerks for the other justices. And we get to read their pool memos. If you slant a memo, the clerks will tell their justice, who will then complain to the chief, and, well, you know what happens next.”

  Gray nodded.

  “Recommending that the court grant review is a huge deal and will get a lot of attention, so be super careful,” Lauren said. “In fact, if you’re gonna recommend a cert grant, you should come talk to me first.” It was condescending as hell, but Gray still hoped he’d have a grant so he’d have an excuse to talk with her.

  She showed him to his workspace, a second-floor office everyone called “the closet.” It was bigger than a closet, but not by much. There was an old metal desk that had two computer monitors. On the wall, a lone picture, the stock photo of the justices. Five seated in the front row, four standing in the back. Like their seats on the bench, the justices were lined up in order of seniority, with the chief justice at the center seat. Black robes against a burgundy curtain.

  “Don’t worry,” Lauren said, reading his thoughts. “We share two other offices on the first floor, one next to the chief’s chambers, one down the hall. We’re two to an office, and we rotate periodically. It gives each of us a chance to be closer to the chief’s chambers. We also get really sick of each other since we’ve been here working around the clock since the summer. We’ll throw the closet into the rotation.”

  Gray took his seat at the desk. He placed his palms on the desktop, and drew in a breath, taking it all in.

  “I don’t want to intrude on your moment here,” Lauren said, “but do you have any questions?”

  Gray felt heat engulf his face, embarrassed. “I think I’ve got it. Do we meet with the chief or—”

  “He left this morning for the recess, but we get together pretty regularly when the court is sitting. He’ll be back in a couple weeks for the November sitting.”

  * * *

  During those couple weeks, Gray immersed himself in the cert petitions, fascinated by the array of legal questions: whether Virginia’s anti-sodomy statute was constitutional, whether a state could make it a felony for anyone on a sex offender registry to access social media, whether a ten-year-old could properly waive his rights against self-incrimination without a parent present. Gray read each petition with care, even the unintelligible ones written by prisoners. He then independently researched the questions, and wrote a pool memo for each case. He’d hoped to talk through the issues with his co-clerks—spitball ideas while tossing around the football—but so far none of the others seemed interested or had come up to the closet. Nor had they invited him to lunch or dinner. But he wouldn’t let that get him down. He stared at that old photo of his dad in the r
ing, now pinned on the wall next to the picture of the justices. He’d work hard. He’d prove he was smart. Prove that he deserved to be a law clerk for the United States Supreme Court. Just like them.

  CHAPTER 8

  Chief Justice Douglas returned from recess on November 1. For the first couple of days, Gray waited eagerly for the chief to call, a summons to chambers to work through a tough case or assist with some research. But his phone never rang. Finally, on November 5, the chief called a meeting of all the clerks. He wanted to talk pool memos, which was just as well because it was the only one of Lauren’s “five tasks” Gray had mastered. The five clerks huddled around the chief’s antique desk and they went through each memo that recommended that the court grant cert, including the memos written by clerks for the other justices.

  “Okay, Toby v. Samuels,” the chief said. “Justice Scheuerman’s clerk recommends we grant review. It looks like a clear circuit split to me and I’m inclined to agree, but what do you all think?” Circuit splits, Gray had learned quickly, were the bread-and-butter work of the court. They occurred when two or more circuits in the federal court of appeals made conflicting rulings on the same legal question. The Supreme Court essentially had to break a tie.

  The chief looked out at them. Gray was still having trouble adjusting to the idea that the chief really wanted their views. Yet there they were, making recommendations on which cases the Supreme Court should hear. It was as intoxicating as it was troubling.

  All the clerks stayed quiet. Gray realized that, as the clerk who’d analyzed the Toby memo—double-checking the work of another justice’s clerk—they were waiting on him to speak up. He’d wanted to fly under the radar, learn more before sticking out his neck and challenging a more experienced clerk’s conclusions. But he felt the stares of his co-clerks. He wondered what they were thinking. Pulling for him? Hoping he’d fall on his face? He got a look at Keir Landon’s glare and he knew the answer.

  Gray’s throat clicked as he swallowed. “I agree there’s a circuit split, but I think there’s other reasons the court should deny review.” It was uttered with the most confidence he could conjure.

  Gray held his breath as the chief justice studied the memo. As last, the chief’s eyes rose from the document, his expression skeptical.

  Keir jumped in. “I disagree,” he said. Despite the JFK thing, on closer inspection, Keir was no Kennedy. He had thin lips and his mouth didn’t open completely when he spoke. Gray was reminded of those Claymation figures from the Rudolph the Red-Nosed Reindeer shows at Christmastime. “I think the memo got it right.” Keir flicked a smug glance at Gray. “The case has everything. Not just a split between the Fourth and Ninth Circuits, but also a dissenting opinion. And it’s clearly an issue of national importance. The latest challenge to Obamacare.”

  Gray felt his face redden as the chief scrutinized him. He needed to remain calm, not get defensive. Gray’s father told him that at the beginning of a fight, when the boxers would do the stare down and touch gloves, his dad always whispered something to himself: No fear.

  “I think Keir makes good points,” Gray said at last. “There is an acknowledged circuit split and the lower court judges also couldn’t agree, so there’s a dissent. It’s just that the order was interlocutory, so I think there’s a vehicle problem.” He was proud of himself for using the jargon of the court. “Vehicle problem” meant that the issue in the case was a good one, but something about the procedures made it a poor vehicle for the court to consider it. “The trial court continued the proceedings while the appeal was pending, and it appears that a recent order may render the question presented moot.” He’d looked this up in Supreme Court Practice, the treatise all the clerks called “the Bible.”

  “That’s not in the petition,” Keir challenged.

  Keir was right, it wasn’t in the petition for cert. Gray stood and handed the chief a copy of an order he’d found on the PACER database that contained documents filed in federal courts nationwide. None of the briefs had pointed out the problem, but on a hunch, Gray had investigated the docket himself.

  The chief examined the order. Without further discussion, he said, “Dead list it.” He threw the pool memo on his desk, as if displeased. “And Keir, please draft a memo for my signature that I can send to Justice Scheuerman about her clerk’s shoddy work.” There were really two messages the chief was delivering—one to the other justice and one to Keir.

  Gray worked until nine o’clock that night. On his way out, he decided to stop by Keir’s office to smooth things over. As he approached the door, he heard several voices.

  “You all can invite Snuffy the Seal if you want,” Keir said. “But I’m not going out with the guy. He’s only here because he’s the chief’s charity project.”

  Keir was referring to Gray. But “Snuffy the Seal”? What was that about?

  Keir continued. “And did you see that suit he was wearing? He belongs on a used-car lot, not working for the Supreme fucking Court.”

  Gray lowered his head, examining his suit. He thought back to the night before he’d started his new position. Hard to believe that of all the things he’d been worried about—Was he smart enough? Would he have the stamina for the job? Would the other clerks like him?—his main concern was what he would wear to work. As a marshal’s aide he had a uniform. Blue blazer and khakis, striped tie. He’d picked up two of each on sale at Lord & Taylor. He had only one suit, a Men’s Wearhouse clearance-rack special, ill fitting, shiny at the elbows, and, the worst part, double-breasted. More low-level La Cosa Nostra than power-lunch D.C.

  “I think you’re just mad because he got the best of you today,” Praveen said.

  Then Mike’s voice: “He did make you his bitch.”

  Lauren laughed. Was this little gathering just about Gray?

  “Do whatever you want,” Keir said, “but I’ve got enough to do without entertaining the chief’s new shiny red ball.”

  Gray took off before he heard more. You can say it doesn’t bother you. You don’t care if you’re not part of the group. That you don’t belong. But no matter how old you are, no matter who you are or where you’re from, it hurts.

  He trudged down to the garage, backpack slung over his shoulder. The officer stationed there, a new security addition since the attack on the chief, nodded hello. Gray felt a stone in his throat. He couldn’t let the clerks get to him.

  He rode out onto First Street, the only light the glow from the Capitol dome. The windswept streets were empty. During the day, the busy bees of the Hill swarmed around the dome—cabs jettisoned about and tourists wandered with their cheap souvenir shirts and hats bought from street vendors. But at night, it was quiet, tranquil. He saw Vincent, a homeless man who’d taken up residence near the building, setting up camp for the night. With his scraggly beard and distant expression, he looked like Vincent van Gogh, so Gray wasn’t sure if Vincent was the guy’s real name or just a nickname the cops in the marshal’s office had given him. Vincent never bothered anyone, so the officers left him alone. Gray waved at Vincent, but the man ignored him. Not even the homeless guy wanted to be friends.

  When Gray pedaled up to his basement apartment, he saw his neighbor Camila on the front sidewalk. She seemed to be having words with Jorge, her ex. Behind Camila, her five-year-old little girl. A U-Haul truck was parked at the curb. Gray shoved the bike in the dank entryway to his apartment.

  “You ain’t leavin’! You can’t take Marianna from me!” Jorge had been gone for a while, but he was back, drunk and belligerent like always. He was the reason Camila was moving away.

  “You’re not supposed to be near us, Jorge. Don’t make me call the cops. I don’t want to send you back to jail, but I will.” Camila held up her phone.

  Jorge slapped the phone out of her hand, and it clattered across the sidewalk. Marianna started crying.

  Camila went for the phone, but Jorge grabbed her roughly by the arm. “Don’t you threaten me, bitch.”

  “Hey!”
Gray called out.

  The man turned, still gripping Camila’s arm.

  Gray walked over to them. He crouched on his heels, and looked at the little girl. “Hi, Marianna.”

  Marianna gripped the back of her mother’s shirt, tears spilling down her face.

  “I have a question for you,” Gray said in a soft voice. “Do you still like ice cream?”

  Marianna looked to her mother, then to Gray, and nodded.

  “How about you go get in that truck, and me and your mom can take you to get some.”

  She looked to her mother again.

  “Yes, Marianna, please go to the truck,” Camila said, her voice quivering.

  The girl paused for a moment, but released the hold on her mother’s shirt and started toward the U-Haul.

  “You stay here!” Jorge reached for the girl, but Gray stepped in front him.

  “This ain’t your business,” Jorge said. He let go of Camila’s arm and got in Gray’s face. His breath smelled of drugstore wine. “A man can get himself killed messing with another man’s business.” His words were slurred, and he wasn’t steady on his feet.

  Gray looked back at the U-Haul. Marianna was sitting in the passenger seat now, looking out at them. “Camila, go get in the truck,” Gray said.

  Jorge reached for her again, but Gray caught him by the wrist.

  Camila hesitated, but ran to the U-Haul.

  Gray and the man locked eyes. Gray didn’t want to hurt him in front of Marianna. “I know you’re upset. But you’re scaring Marianna. Is that how you want her to think of you? Drunk and scary?”

  Jorge tugged to release his arm, but Gray held firm.

  Gray looked over to the truck again. Camila was in the front seat, hugging her daughter, stroking the little girl’s back.

  “I’m going to let go of your arm now, then you’re going to leave,” Gray said in a calm monotone.