By now, Callista understood very well the ideological fissures which made Caroline Masters desirous of such scrutiny. In league with those of two other justices, the somewhat severe Miriam Rothbard and the venerable Walter Huddleston, Caroline's philosophy was moderate to liberal; their ideological opposites, led by Anthony Fini, the engaging and combative heir to Roger Bannon, reliably included Justices Bryson Kelly, a choleric former Attorney General, and John Ware, a black archconservative whose contentious nomination hearings had made him wounded and reclusive. The Court's fulcrum was the centrists: Justices Thomas Raymond, Dennis Millar, and most important, McGeorge Glynn, who particularly relished the leverage the Court's schism accorded him. This complex dynamic—wherein the Chief Justice and Justice Fini mingled vigilance with a surface cordiality as they angled for votes in the middle—affected not only the few cases which the Court determined to hear but the many it did not. All of these dynamics made Callista's work with the cert pool both onerous and exacting, and never more so—given the justices' fraught emotions on the subject—than when the stakes presented were the life or death of a human being.
Shortly before ten, Callista turned with little relish to the contents of the wooden cart.
After a half hour mechanically winnowing the petitions into stacks, one for each of the nine chambers, the caption of the next petition caught her eye. Immediately she realized why—roughly six weeks before, she had reviewed the papers relating to a death row inmate, Rennell Price. To Callista's relief, the Ninth Circuit had granted Price's habeas corpus petition, terminating her work on a prospective recommendation which, had Price lost, would have plunged Caroline Masters into the vexing task of inducing four other justices to stay his execution. Instead, like a card dealt from the bottom of the deck, the State of California's petition for certiorari—challenging the Ninth Circuit's ruling—sat atop the stack destined for one of the Chief Justice's four law clerks.
This stack, too, was dispersed among the clerks by rotation—on each petition in turn, Callista would scribble her own initials or those of a fellow clerk. The petition in the Price case was destined for Brian Eng—among Caroline's clerks, the sole enthusiast for the death penalty.
Pouring herself more coffee, Callista pondered this complication.
She had retained her file in the Price case—the original papers, the relevant cases and statutes, and the beginnings of her draft recommendation to Caroline Masters. She could simply pass the file on to Brian. But getting up to speed would take Brian twice as long; writing the memo herself would, at least for this week, make the burden of the cert pool a couple of hours lighter. And also, Callista rationalized, she, not Brian, best understood the Chief Justice's thinking on the thorny matter of capital punishment.
Scrawling her initials on one corner of the petition, Callista reshuffled the stack.
* * *
It was past seven o'clock at night before Callista, fortified by a cheeseburger she had gobbled in the cafeteria, went to the library.
The vast room still inspired almost as much awe in Callista as the courtroom itself—above her, three enormous brass chandeliers hung from thirty-foot ceilings filigreed with multicolored marble and plaster. She chose an empty table, relishing the silence of a Renaissance cathedral, and began her work on the matter of Rennell Price.
In due course, the memo she was about to write would, with Caroline Masters's approval, circulate to the other justices' chambers for discussion between each justice and his clerks. A memo in a capital case would receive special scrutiny—a series of abrasive and close decisions, with bruising dissents, had left both wings of the Court raw and angry beneath its surface politesse. But the Supreme Court did not grant petitions for the purpose of settling scores, or even correcting legal error: the issue to be addressed by Callista's memo was whether this case presented unresolved questions of constitutional law which resonated far beyond the fate of Rennell Price.
The authors of the State's petition and Price's response, Callista saw, understood this well—depending on whose argument she accepted, the opinion of the two Ninth Circuit judges was either a massive affront to AEDPA or the routine parsing of facts specific to Rennell Price. This divide was complicated by another factor, which made Callista's task harder: the vehemence of Judge Nhu's dissent—a virtual open letter to Justices Fini, Kelly, and Ware—whose weight Callista could not ignore.
But Janie Hill's daughter was not a fool, and neither were Rennell Price's lawyers. They had given her much to work with—which was precisely what Callista intended to do.
* * *
At a little after ten on the East Coast, when Callista went home, but three hours earlier in San Francisco, the Paget family, including Carlo, gathered around their candlelit dining room table.
The conversation was unexceptional—a review of Elena's and Kit's days; a discussion among the three older Pagets of whom they preferred for President—until Elena asked her mother abruptly, "Whatever happened to that man, the one you kept alive?"
Beneath her daughter's cool phrasing, Terri heard a marked disapproval. "He's right where he was," she answered calmly. "On death row. We're waiting to hear if the Supreme Court wants to take the case. We hope they don't."
Elena's expressive eyes lit with challenge. "What would happen then?"
"He goes free."
Elena folded her arms. "Because of you. They'll just let him out there again, to do to people whatever he wants to do."
Terri hesitated, reluctant to answer.
"Or," Carlo interjected gently, "to have people do to him whatever they want to."
Gratefully, Terri realized that Carlo was placing his credibility, sometimes greater than Terri's own, in the service of her relationship with Elena and, perhaps, with her seven-year-old son. She watched Kit's eyes flicker from Elena to Carlo.
"Rennell Price," Carlo told his stepsister, "is retarded, passive, and pretty close to helpless. For his entire life, he depended on a brother who's been executed. For the last fifteen years, he's been on death row. Whatever limited coping skills he had have eroded, and the only other place he's ever known is Bayview and the drug culture.
"Even though we're confident he's innocent, Rennell is a marked man. The cops may be after him. So may a lot of pretty tough guys. If Rennell ends up in the Bayview, he'll be dead in a year. Probably sooner."
The matter-of-factness in Carlo's tone, Terri perceived, combined with treating her as an adult to keep Elena from snapping back. "So where's he going to live?" she asked, and then Terri saw a sudden jolt of fear and suspicion turn Elena's widening eyes back to her. "Not here."
"No," Terri said quietly. "Not here. But he's going to be working at our law firm."
Elena shook her head in disbelief, tears welling in her eyes. "Then I'm never coming there again," she said. Standing abruptly, she threw down her napkin and bolted from the room.
"Come on," Carlo said to a worried-looking Kit. "You and I can hide together." Scooping up his brother, Carlo took him upstairs.
Terri remained with Chris. "I don't know how I can ever dig myself out of this," she said at last. "And the worst part is that Elena's right—only about the wrong man. Eddie Fleet's still out there, and there's nobody to stop him. So Elena blames me for doing what Larry Pell is doing—making the world less safe."
"Maybe I should try to talk to her," Chris ventured.
Terri shook her head. "Leave it be, for now. I don't want Elena to feel our entire family is coming down on her."
Silent, Chris took her hand. "All these months," she murmured, "working so hard to save his life, then get him out. We're so close now—if the Supreme Court turns Pell down, we've won. And then Rennell, and all the rest of us, will have to live with it. Especially Elena."
THREE
FOR ADAM WENDT, CLERKING FOR JUSTICE ANTHONY FINI WAS more than an ideological calling—to spend time in Fini's presence was intoxicating, particularly when the justice, as he did so often, made Adam feel like a partne
r in reshaping the law into what the bold and unsentimental knew it should be, an instrument of clarity and order.
"Come on in," Fini called out, waving Adam to a chair.
As ever, Fini bubbled with life, his brown eyes illuminating a plump and amiable face. Even at his highest level of dudgeon, which could be considerable, some part of Tony Fini seemed always to enjoy himself. And unlike the quarters of some other justices, tending toward the monastic, Fini's inner sanctum was a testament to his numerous enthusiasms—a trophy commemorating a hole in one at a country club near Bar Harbor, site of his summer home; a wooden model of Fini's classic sailboat; an autographed baseball card of Babe Ruth, the archetypal player from Fini's beloved Yankees; a photograph of Fini with Chief Justice Roger Bannon, wryly inscribed "to my friend and fellow guardian of the law." It had been Fini's dearest wish to succeed Bannon as Chief, and but for the narrow election of the Democratic president Kerry Kilcannon, patron of Caroline Masters, Adam was certain that he, not the brash and sharp-tongued Callista Hill, would be the favored clerk of a Chief Justice. But Tony Fini was undaunted by this setback. "What's the most important rule of constitutional law?" Fini had once inquired of Adam.
Stumped, Adam could only shrug. "I'm not sure."
Fini had grinned. "Whatever five justices say it is." And, with this, Adam understood Fini's perspective on the Court: Caroline Masters might be Chief Justice, but whoever commanded a majority was king.
"So," Fini said dryly, "I take it some anomaly has bubbled up from the cert pool."
Adam nodded. "A Ninth Circuit anomaly," he answered. "Reversing a death sentence in the sexual molestation and murder of a nine-year-old girl, fifteen years after the fact. Among other things, the Court seems to recognize a claim of freestanding innocence on a second habeas corpus petition."
Fini cocked his head. "Who was on the panel?"
"They split two to one. Judges Sanders wrote the opinion, with Judge Montgomery concurring."
At the latter name, Justice Fini raised his eyebrows: in Fini's chamber, there was special scrutiny of the Ninth Circuit, the Chief Justice's former Court, especially when her mentor, Blair Montgomery, was on the panel. "Who dissented?"
"Judge Nhu."
"Montgomery versus Nhu," Fini said with a smile. "Two scorpions in a bottle." Adam heard the fondness in his voice: Viet Nhu had been Fini's clerk during his first year on the Court, and it was Fini's not-sosecret hope that, should a Republican retake the White House, Nhu would become his colleague.
"I copied the opinion," Adam said, handing it across the justice's desk. "Including the dissent."
Putting on his reading glasses, Fini scanned the pages. "From the looks of this," he said at length, "our venturesome friends in San Francisco are working some interesting variations on AEDPA. Who wrote the cert pool memo?"
Adam straightened his bow tie. "One of the Chief Justice's clerks. She tries to make the case sound humdrum, a waste of time."
"But you don't think it is."
"I think she slighted the State's petition, Mr. Justice. At the very least, there's a clear conflict on freestanding innocence between the Ninth Circuit and the Eighth Circuit in a case called Burton v. Dormire. That's a pretty important issue."
"Very important, I'd say."
Adam felt a spark of excitement, a tingling at the back of his neck. The keenness of Fini's combative instincts, though frequently aroused, sometimes held the added promise of pitched battle and, most gratifying of all, of some new landmark in the law on which his clerk's fingerprints, however faint, might appear.
"What would you like me to do?" Adam inquired.
"My homework. Dig into every question, Adam. Then, if you feel it's justified, prepare a thorough countermemo arguing for a grant of the State's petition." Fini tossed back the opinion in his hand. "Looks like Viet Nhu's dissent should give you a head start."
"Right away," Adam promised.
* * *
Unsmiling, Caroline Masters looked up from her work. While generally polite, she was not always gracious about interruptions, and this was such a day. "What is it?" she asked curtly.
Though undaunted, Callista decided not to sit. "I'm afraid I've attracted a Fini-gram."
"Indeed?" With a sigh at this allusion to Fini's oft-bombastic e-mails, Caroline leaned back in her chair. "Concerning what peril to our nation's jurisprudence?"
"The Price case, another Ninth Circuit reversal of a death sentence. I gave you the memo a few days ago."
"I remember it." Frowning, Caroline became still, a reflective figure framed by the only personal mementos on her credenza—a photograph of her daughter, Brett, another taken with President Kilcannon in the Rose Garden on the day of her surprising nomination. "The freestanding innocence question is a bit dicey," the Chief allowed. "I'd prefer the Court not grapple with it now. Is Justice Fini's communiqué in the nature of a polemic, or does it come with a concrete plan of action?"
"It comes with a countermemo." Written, Callista did not add, by a bow-tied and overprivileged little reactionary from Virginia Law School, quite possibly America's whitest male. "Justice Fini wants you to put the Price case on the discuss list."
Though Caroline smiled resignedly, Callista could imagine her perplexity. The Chief Justice's "discuss list," circulated before each conference among the justices, specified the petitions she deemed worthy of consideration. While the vast majority of petitions never made the list—and, therefore, were dead—any associate justice could request that a petition be added to the list. When that justice was Anthony Fini, what followed was often contentious: not only did Fini give no quarter but he was that rarest of justices on a decorous Court, a vigorous lobbyist for his positions. And never more so than in opposing strictures on the death penalty, for which he was an unabashed proponent—Rennell Price, whoever he was, had become less a person than a potential milestone in the law.
After a moment, Caroline Masters stirred herself from thought. "Prepare another memo," she directed briskly. "Hit all the issues raised by Justice Fini, and all the reasons not to take this case. I don't think it would be in the interest of the law or, in candor, this Court."
"How so?"
The Chief Justice considered her, then offered a rare elaboration of her thoughts. "Capital punishment," she answered, "distorts the law, imports the corruptions of politics into whether a prisoner lives or dies, and corrodes relations among the justices. Eventually, death penalty cases present so many fundamental questions that they can color one justice's view of another as a human being. I don't want that to happen to my colleagues."
Or to me, Callista could sense the Chief thinking. Caroline Masters was no doubt aware of the subterranean bitterness swirling among the justices—the rumor, for example, that after the latest approval of an execution in Mississippi, Justice Fini had referred to the Chief Justice's dissenting ally Justice Huddleston as a "hand-wringing mediocrity," and that the venerable Huddleston had labeled Fini "the only justice in memory who'd have deferred to the commandant of Auschwitz." The Chief Justice surely did not want another death row inmate to put her Court, or these emotions, in play.
"Do you want me to circulate my memo?" Callista asked.
"Only after I read it," Caroline Masters answered. "With all respect, Callista, I might want to take a hand in this myself."
FOUR
TWO FRIDAYS LATER, THE NINE JUSTICES OF THE UNITED STATES Supreme Court gathered in the Chief Justice's conference room.
To Caroline Masters, the room combined the clubby aura of an inner sanctum with a distinct sense of history—wood paneling, a fireplace, a rich red carpet, oil portraits of Chief Justices Marshall and Jay in scarlet robes, shelves filled with books preserving the Court's prior rulings. At other such conferences, the Court had unanimously voted to bar segregation in Brown v. Board of Education and, two decades later, divided bitterly over Roe v. Wade. The two rulings, so different in conception and consequence, were ever on Caroline's mind; if she could manage
to build consensus—and this task was not easy—this Court would not exacerbate the acrid cultural and social schisms which existed in contemporary America, and which made the ongoing battle over federal judicial nominations as incendiary as had been her own.
Certainly, the timeless rituals of these conferences were crafted to preserve decorum. Each began with the justices shaking hands before they sat at a long table inlaid with green leather and illuminated by a crystal chandelier. Their places, too, were preordained: Caroline sat at one end of the table in a leather chair bearing a brass nameplate which said simply "The Chief Justice"; the opposite end was reserved for the senior associate justice, Walter Huddleston. The next most senior justices—Anthony Fini, McGeorge Glynn, Thomas Raymond—sat to Caroline's right, while the four who were most junior—John Ware, Bryson Kelly, Miriam Rothbard, and Dennis Millar—faced them across the table. The Court's newest member, Justice Millar, was stationed nearest the door, so as to pass messages or requests for additional documents to the messenger waiting outside. On the surface, Caroline thought dryly, everyone knew his place.
But the far less neutral way in which they defined their places made Caroline edgy. In the most contentious cases she, Huddleston, and Rothbard battled with Fini, Kelly, and Ware for the votes of the centrists—Glynn, Raymond, and Millar. So that today, when Justice Fini grinned and shook her hand, she thought of former Justice Byrnes's remark that the handshake reminded him of the referee's instructions before a prize fight: "Shake hands, go to your corner, and come out fighting."
Still, as the conference wended its way through the discuss list, their exchanges remained sufficiently muted that Caroline dared to hope contention might take a holiday. When they arrived at the Price case, she said with deceptive ease, "This one's yours, Tony."
Immediately she sensed a heightened alertness among the others, underscored by Justice Huddleston's quizzical frown toward his nemesis, Anthony Fini: challenges to a memo from the cert pool were unusual, and the sharpness of Fini's language, an incitement to controversy, was matched by the lawyerly thoroughness of Caroline's response. And if Fini carried Kelly and Ware—a near certainty—all he needed for the Court to grant the State of California's petition was the vote of a single centrist.
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