Balance of Power

by James W. Huston

  “Good morning, Your Honors. Jackson Gray on behalf of the United States…”

  “I’m afraid you are going to have to be more precise,” David Ross said with a very serious face.

  Gray looked at him. “Yes, sir. Jackson Gray on behalf of the Justice Department, representing the President and the Executive Branch.”

  Pendleton paused until he had the attention of all the justices. “David Pendleton on behalf of Mr. Stanbridge and the Congress, Your Honors.”

  “Thank you,” Ross said. “Please be seated.” Ross looked at the papers in front of him and then at Gray. “I believe this is your application, Mr. Gray.”

  “Yes, sir, thank you. May it please the Court,” he said, then, nodding to Pendleton, “Counsel.” He paused and took a deep breath. “We have reached a time where the Supreme Court must act, or risk the government falling.” The gallery gasped audibly, but it was unclear to Dillon—who hadn’t gasped—whether the gasps were due to the gravity of the situation or the audacity of Gray’s statement. Gray continued, “Congress directed a Navy battle group that is wreaking havoc on citizens of foreign countries—and those of our country, I might add—without the authority of the President or the Executive Branch. All because the House of Representatives and the Senate adopted a Letter of Reprisal in a way that has never been done in history, and has used it as its own tool, defrauding the citizens of the United States. They have put forth disingenuous arguments based on history—”

  Ross interrupted Gray. “Mr. Gray, am I correct in noticing, and I do hereby take judicial notice, that the attack you are attempting to preclude by this stay, to which you refer to in your application papers, has already occurred?”

  Gray pulled back visibly, as if he had been hit in the chest. “There has been one attack, yes, sir.”

  Ross continued, “From the way I read your papers, that is the attack you were trying to prevent by this emergency application. Is that correct or not?”

  “It is correct, Your Honor,” Gray said as if talking to someone who wasn’t completely clued in, “that we were trying to stop that attack, but we also want to stop any subsequent attacks. We want to prevent this battle group from rampaging through the South Pacific at the whim of Congress.”

  Dillon watched the back of the Speaker’s neck, which had turned noticeably red.

  Ross’s face took on a sour, displeased expression. “On what do you base your fear that the battle group is intending to do anything other than what it has already done? There is no evidence before this court that anything else is likely to happen.”

  “On its past behavior, Your Honor. It has directly disobeyed orders of the President of the United States, and we have no indication yet that it doesn’t intend to keep doing just that.”

  “Well, that may be, but the question is whether you think any such disobedience or lack of control will be based on this Letter of Reprisal on which you have based your application. Will you be bringing actions against all battle groups, or only those to whom a Letter of Reprisal has been issued?”

  Dillon grinned involuntarily. He had always thought of Ross as President Manchester’s pawn, appointed to the position of Chief Justice of the United States from the Supreme Court of Connecticut, where he had served for ten years and where Manchester had met him. His appointment had caught the Court watchers off guard. He was unknown. Considered a moderate Democrat, he had graduated from Boston College Law School after college at Amherst. But no one knew what he stood for. His opinions were unremarkable in Connecticut. Most thought he would be Manchester’s man on the Court. Apparently not, Dillon thought, as he watched Ross’s face and Gray’s back.

  Gray answered, “The Letter is a factor, and we want that factor to be removed as a reason or grounds or justification for any action.”

  Ross said, “Before you go on, Mr. Gray, I would like to hear from Mr. Pendleton on this point. Mr. Pendleton.”

  Pendleton stood up. “Your Honors, whether the President can control the Navy under normal circumstances is a question that one might ponder on any given day. Why does the military obey the President?” He paused for effect. “Because of the direct constitutional authority of the President. This application is about whether the Letter of Reprisal should be stopped immediately by this Court.” He shook his head gravely. “That was impossible even when this misguided action was filed in the District Court—Congress had already passed it. The only entity that could be enjoined was the Navy, and the Navy was not before the Court. But more important, as the Court properly points out, this action is moot. The only action that the President was attempting to forestall has already occurred. For the Court to issue an order now would be a meaningless gesture. It does not benefit the reputation of this Court to issue orders on matters that have already occurred. This Court was not appointed to issue futile orders.” Pendleton let his voice travel off. “Thank you.”

  Gray, still standing, began again, “Mr. Pendleton continues to divert the Court’s attention from the real issue—”

  The Chief Justice raised his hand. “Mr. Gray, we were willing to hear this issue at this early hour because it seemed to us an issue of critical importance. However, it is now out of our hands. The actions you were attempting to forestall have occurred. The application for stay is denied. The application is moot. The matter is remanded to the District Court for consideration on the merits.”

  “Thank you, sir,” said Pendleton, standing to go, a subtle way to encourage the Court not to change its mind.

  Gray stood dumbfounded. He tried to hold his tongue. He was seething inside, angry at a system that waited too long to hear something and then refused relief, claiming it was too late. He forced himself to nod at the justices as they rose from their chairs. Then he couldn’t contain himself, “But you’re the ones who decided not to hear this until today. This was in your hands Friday night. This Court has made it futile!”

  Justice Ross ignored him. “Court is adjourned.”

  “All rise,” Compton said as the justices prepared to leave the room.

  Gray stared after them. He finished putting his notebooks away and, without saying a word to Pendleton, walked out of the courtroom. He avoided Manchester’s gaze, refused to speak to any of the reporters in the gallery, and left the building. Pendleton lingered behind the bar and surveyed the room, which was in pandemonium. Several journalists fought to get out the door, and others fought to stay to savor the historic moment.

  Dillon worked his way to the end of the aisle and then up through the crowd to David Pendleton. Molly followed and turned right to head out the door. Grazio stood at the end of the aisle watching Dillon. Dillon went through the bar and extended his hand to Pendleton. “Good morning, sir. Jim Dillon. I don’t know if you remember me…”

  “Of course.” Pendleton took his hand. “You’re the one who started all this.” Pendleton looked at the crowd and realized he’d have to wait to have any hope of leaving. “It was your idea, wasn’t it?”

  Dillon was unsure what to say. “You think it was a bad idea?”

  Pendleton shrugged. “It was a high-wire act without a net.” He looked into Dillon’s eyes with a superior air. “Our government may look strong, but it really isn’t. Our government is a set of ideas, not buildings or people. Its continuity depends entirely on the respect people give it. Congress and the President, the Court, are like banks. If people lose faith, the banks fail.” His eyes glowed. “But there’s no Federal Stability Insurance. There isn’t anything that guarantees the government will still be around if people lose faith. If you push too hard, the structure could come crumbling down, even if you’re right. It was a fun ride though, and I’m glad I helped John Stanbridge.”

  Dillon didn’t know what to say. “You don’t think the Speaker should have done it?”

  “What do you think?” Pendleton asked. “Knowing all that you know now, seeing everything that has happened because of it, what do you think?”

  Dillon looked around the
emptying room, at the Speaker, who was being congratulated by many, and President Manchester, who was standing surrounded by Secret Service agents. Dillon thought of Admiral Billings, and Reynolds, Caskey and Drunk, Colonel Tucker and Lieutenant Armstrong, all the people who put their lives on the line. But mostly he thought of Captain Bonham’s swollen face and the dead Marines in the burning helicopter, and Mary, and her daughter, and her dead missionary husband. “Yes, I would still do it,” Dillon said finally. He squinted at Pendleton, bolder than usual. “And I think you’re wrong about the government. It isn’t fragile at all. It is built on eternal principles. It is the people who are weak and fragile.”

  Pendleton listened carefully. “Perhaps,” he said.

  Dillon turned toward the rail. The observers in front of him were still backed up. He pushed the small gate open.

  Grazio was waiting for him. “So. Got to shake hands with the big guy, huh?”

  Dillon kept walking.

  “What’s with you? You’ve been weird all morning. What’s eating you?”

  “Nothing, I just thought he’d be excited about his great victory. He didn’t care at all.”

  “Not care? That could be one of the biggest arguments in the history of the Supreme Court!”

  “I don’t know,” he said, as they shuffled forward at the end of the bulge of people waiting to get out. “He just doesn’t seem to have any passion.” Dillon suddenly looked up. “Where did Molly go?”

  “I don’t know. When you went to the end of the aisle, she headed out of here like a bullet.”

  “I’ve got to talk to her.”

  “Aren’t you going to come to the office?”

  “Yeah, as soon as I talk to her.”

  “Well, you better hurry,” Grazio said as Dillon started hurrying forward.

  “Excuse me!” Dillon said loudly, pushing his way through the crowd and out the hallway of the Supreme Court building.

  A couple of journalists recognized him, but he was past them too quickly for an interview. Journalists stood throughout the hallway with cellular phones jammed to their ears; television reporters had their lights on and cameras rolling. Dillon knew how to look unimportant. He broke out into the bright sunshine in the cold February morning. He saw Molly at the bottom of the steps with her collar turned up as she turned and headed toward the Metro station. He ran down the steps and yelled her name.

  In the courtroom the crowd thinned, except for those with Stanbridge and Manchester.

  President Manchester walked over to the Speaker. “Can I have a word with you?” he asked in a fairly loud voice.

  John Stanbridge turned and looked into Manchester’s eyes. “Certainly, where?”

  “Here.” Manchester turned to the Secret Service agent next to him. “I want to have a talk with the Speaker, here in private. Would you clear the room?”

  The Secret Service agent said in a controlled yet commanding voice, “Would everyone clear the room, please, immediately.” A dozen or so remaining people were escorted quickly to the enormous double doors, which were closed behind them. Secret Service agents guarded each entrance, yet stood back far enough that they could not overhear the conversation.

  Manchester and Stanbridge looked at each other from three feet apart. Manchester began. “This has been a very…unfortunate series of events for this country.” He waited to see if Stanbridge was going to respond. Stanbridge simply waited. “You and I have an obligation to do what is best for the country. Do you agree?”

  “Absolutely,” Stanbridge said.

  “I hope that you noted that the Supreme Court did not decide the issue. It is still open. It now goes back to the District Court, where they may in fact determine that this entire Letter of Reprisal is unconstitutional.”

  Stanbridge spoke with confidence. “Mr. President, I’m sure you’ve read the cases. You know how these things go. The courts do everything in their power to avoid deciding political issues, questions of the balance of power between Congress and the President. They’ll never touch it. Since the Supreme Court has already decided it’s moot, I’m sure the District Court will do likewise. Mr. Pendleton has given me great confidence that this decision by the Chief Justice—whom you appointed—will end it.” Stanbridge’s eyes lit up with the irony of Justice Ross being the executioner of the President’s lawsuit. “Your lawsuit was simply a bad idea.”

  “I think your Letter of Reprisal was a bad idea, Mr. Speaker. I think you took great risks with the structure of our government and may have caused substantial damage….”

  “No, Mr. President, you’re the one who was damaging the reputation of the presidency and causing the legislative branch of the government to take steps it would not normally need to take if you simply did your job.” He pointed at Manchester for emphasis. “A long time ago you assumed that I was prepared to exercise the War Powers Act to stop you. Nothing could have been further from the truth. You had to comply with it, sure, but I wanted you to go down and take care of this, Mr. President. When you refused, I had to do your job for you. The Constitution gave me the tool, and I used it. You don’t have to worry about me, if you’d just do your job. And just last evening I received a fax that you should have received. It was from the President of Indonesia, thanking me for taking the action we did.”

  “I didn’t refuse to do my job, I just did it differently from the way you wanted. It is when you’re trying to do my job that you are the most dangerous, Mr. Speaker, because you lack judgment, you lack proportion, and worst, you are driven by ambition. It’s not right or wrong that makes your decisions, it’s your lust for my job.”

  “All politicians want to be the top dog,” Stanbridge responded.

  “But only one can have it,” Manchester replied, “and you’re not the one.”

  “Not yet,” Stanbridge said. “Is there anything else?”

  “Yes, one other thing. My real reason for stopping you,” the President said with intensity in his voice. “Public opinion is against you. Too much death was caused by your wild scheme. You’ve lost in the arena of public opinion, and that could be fatal to you—” Manchester held up his hand, seeing Stanbridge starting to interrupt. “Hold on, let me finish.” He paused, then spoke quietly. “I admit we have both sustained political damage to a degree each of us can determine on his own.” He sighed. “But what the country needs now, more than anything, is peace between our two branches of government. They cannot take any more fighting within the government.” He looked straight at Stanbridge. “Can we go outside, in front of this building, right now, and tell the world that we will work together? That even though we have our differences, we will work within the structures of the government to solve them?”

  Stanbridge smiled wryly. “Mr. President, that is exactly what I have been doing the entire time.”

  “Then agreeing to keep doing it should be of no great moment,” Manchester said with the hint of a victory smile. “Can we shake hands, in front of all out there?”

  “I’m still going to get your job.”

  “Take your best shot.”

  “One thing I need to know.”

  Manchester waited.

  “Your Chief of Staff mentioned a fax. Financing concerns…”

  Manchester dismissed the concern. “It never went out. It didn’t feel right.”

  Stanbridge looked around the courtroom. “Go ahead and hold a press conference. Tell them we’re going to work together.” He paused. “But I’ll have my own press conference later in the day. If I don’t like what you’ve said, you’re going to hear about it.” He walked down the aisle and the Secret Service agents opened the large doors for him.

  “Molly!” Dillon yelled so loudly that it scared him. “Molly!” he hollered as he reached the bottom of the massive marble steps in front of the Supreme Court building. She kept walking, picking up her pace. He ran down the sidewalk. His coat opened to the wind and flapped against his arms as he ran faster and caught up with her.

  He grabbe
d her arm. “Molly!” he said breathless.

  She stopped and turned, examined his face. “I guess that’s the ruling you wanted,” she said.

  He fought to catch his breath. “Yeah, I think it was the right result.”

  “Now it’s going back to the District Court. They may still find it unconstitutional.”

  Dillon tried to suppress a smile. “Yeah, I guess that could happen.”

  Molly turned toward the station. “Molly, please, I want to talk to you.”

  “What about?” she asked.

  “I’m going to make this really easy for you. If you don’t ever want to see me again because of everything that’s happened, if my working for the Speaker of the House somehow makes me a bad person, then say so now. This is your chance. If you want me to get lost, say so.”

  She looked down at the sidewalk then into his eyes, “This whole…thing, the way Congress went out and ordered the Navy to go attack those people. It just seems so vindictive. So cold-blooded.” She took her hands out of her pockets. “And the contortions you had to go through to claim authority to do it—I don’t know; it just seems dishonest.”

  “It wasn’t,” Dillon said. “Anybody who says anything different from what you or the President believes is evil or wrong or dishonest?”

  She looked at him coolly. “A lot of people died, Jim.”

  “Manchester owed it to the country to do something about it and he didn’t. The fact that Congress did instead doesn’t make it wrong.”

  “It isn’t that simple,” she said.

  Dillon glanced over her shoulder at the Capitol building and the dome against the clear blue sky. Then he saw it. The same flag that was flying over the USS Constitution was flying over the Capitol. “Don’t Tread on Me.” He tried not to stare.

  “Do you think Congress can do this anytime they feel like it?” Molly went on.

  “Actually, I think they ought to do it a lot more often. I think the way we’ve done our little private wars through the CIA or the Contras or Surrogates, or anybody else that you can name, that’s what’s dishonest, Molly,” he said, jamming his hands into his coat pockets. “For this country to be out there fighting and killing people and pretending like we aren’t, for Congress not to be involved and to be able to wash their hands of it by saying, ‘Well, it’s all the President’s doing,’that’s dishonest. The power of going to war is given to Congress. Not the President. The idea of the President sending a bunch of troops overseas without Congress’s approval and then arguing about the silly War Powers Act, that’s dishonest….”