Al-Tounsi

by Anton Piatigorsky

  “With good work ethics, like their mother.”

  “Ha. More like their father.”

  Gideon unearthed a tree of raw broccoli and popped it in his mouth. The strangeness of Victoria’s presence in his chambers magnified for him. She was sitting tight-lipped on his couch, parceling small bites onto her fork. The Supreme Court Building was far from her office in Arlington, making this lunch visit a real effort and inconvenience.

  “What are you doing here, Vic?”

  His wife gave him a measured glance. There was a question buried in that glance: how frustrating is my visit?

  “I don’t mean that as an accusation. I’m happy to see you here.”

  “It’s just unprecedented, I guess.” Victoria laid her fork beside her salad, never one to eat while speaking. “I wanted to talk to you without distraction, because I doubt you’re going to like what I have to say.”

  Gideon put down his fork. Victoria’s face had adopted a familiar cold austerity, impossible to read. She retreated into this stoicism whenever they fought or had any serious disagreement, shielding herself from the tumult of violent emotions, his or her own.

  “I’m retiring,” she said. “At the end of this year. I’ve given it lots of thought and my decision’s final.”

  Gideon’s cheeks slackened and his jaw hung, as it did on that hot afternoon on Oak Street Beach, years ago, when she told him she was carrying twins.

  “You’ve told Angie?”

  “Not yet.”

  So maybe it wasn’t final. Nothing was final until she told her co-director. So maybe Victoria had come here because she wanted Gideon to convince her otherwise.

  “You’re rather young to retire.”

  “Not that young.”

  “You enjoy your work. I mean, I’m surprised.”

  “Finding something rewarding is not the same thing as enjoying it.”

  “But still. You’re done? What about all those fraudulent and malfeasant doctors in the Commonwealth of Virginia who will now escape prosecution? Tragic, isn’t it?”

  She didn’t laugh or smile. “There are plenty of good young prosecutors on the rise, and the bad doctors will get theirs, believe me.”

  A stunned, baffled grin pulled Gideon’s face tight.

  “I’m done. I have had a great career, and a positive effect on my small world. I see that—the difference in the medical establishment between now and when I started—but I’m ready for a new phase.”

  “But are you sure?”

  “Yes, I’m sure. That’s what I’m saying.”

  So much for his plan to convince her otherwise. Gideon slapped his palms on the armrests and feigned some pleasure. “That’s wonderful news, then.”

  Victoria’s trim fingernails picked at the cardboard fiber of her take-out container. “Although that’s not really what I came here to say. The thing is, Gideon, I don’t want to be stuck in Washington for ten months of the year. Rock Creek Park has only got so many pileated woodpeckers and great horned owls—I practically know them by name. I’ve got my bird log ready, and off the top of my head I can think of several hundred species scattered around the world I want to see before I die. That’s without even trying. And I don’t particularly desire flying off to Indonesia or South America by myself.”

  “Well, there’s summer in a couple of weeks. And we can go anywhere we want this year, any of those places. We can go see the King penguins in the South Georgian Islands. I’m sure we can still arrange it.”

  “Gideon, in 36 years of marriage I haven’t asked you for all that much. Not once have I expected you to put in fewer hours here or back on the circuit, or even asked you to come home for dinner when the boys were little. That was all part of our unspoken deal, I know. You work hard, and I have always admired it.”

  “So do you! You’re no slouch!”

  “I’m not talking about me. I’m talking about a shift. I look at Bernhard and Sarah and Elyse, and the others around here, and see what it would mean for us as a couple if you held onto this seat for another decade. There’s no golden retirement for ancient justices and their families. When Bernhard finally does leave, he won’t have time to travel or relax, he will just wither away. He’s in his nineties, for Christ’s sake. He’s already too old for a meaningful retirement. I don’t want us to be like that. I don’t want us to kick around Washington until I’m hobbling on a cane or getting pushed down the sidewalk in a wheelchair, waiting for our time together.” Victoria took a deep breath, and held it. Gideon tightened his chest against what was surely coming. “I want you to step down. I don’t mean immediately. You don’t have to write a letter to the President this afternoon or anything, but I would like you to start planning your exit strategy.”

  Gideon’s cheeks heated. “You realize if we let Mark Shaw nominate my replacement it will be the end of responsible law in this country for, oh, I don’t know, a generation at least, and probably longer?”

  “Gideon, please. I mean, at your next opportunity. President Shaw will be out in 18 months, and—”

  “You honestly think in this climate a Democrat will be—”

  “I’m saying when you have the chance. All right? And yes, I do imagine that it will be sooner than you think. Two years, end of the 2008–09 term, I suspect there will be a Democratic president, and then I would like for you to go. Okay? You will have had 15 excellent years on the Court at that point, and—”

  “Fifteen years is nothing. Fifteen years is just warming up.”

  “I want some time with you. I want a bit of your attention. You can write memoirs, or books and articles on law, all kinds of things, but just not this grueling schedule that keeps us in this boring city all year and you in these chambers all night. I didn’t have any time with you at the beginning of our marriage or in the middle, and I don’t want to miss the end.”

  Gideon crossed his arms tightly against his chest. His tongue felt huge in his mouth, sweat pooled under his arms and dripped down his sides, and he blinked uncontrollably. “Victoria.” Her name came out like a moan.

  “Can you promise me that you will at least think about it?”

  The dark-green folds of his lemon-juice coated Romaine now looked to Gideon like unappetizing tree leaves.

  “I don’t ask this lightly.”

  He looked away. Victoria had never asked anything of him, had always accepted him as he was. She wasn’t manipulating him. She had never pushed him to give her more attention, hadn’t even confronted him directly about Ellen back in ’85, or threatened him with divorce, or punished him in any meaningful way. There were those weeks of steely silence and monosyllabic exchanges after his confession, but that was all unavoidable, given how his stupid affair must have surprised and pained her. There had been nothing cruel or destructive about her behavior back then. In her cloistered ruminations, Victoria must have written the whole thing off as a common midlife crisis—and that’s really what it had been. She had let the whole mess slide, and that had been unspeakably kind of her. And she was right about his workaholic tendencies: living his life in these chambers, and his previous offices, alone, all waking hours, never at home. She had never objected to his obsession. She had never demanded that he compromise.

  “I don’t think you owe me anything.” Victoria, as usual, had somehow read his mind. “I’m just telling you what I want so there won’t be any mystery about it.”

  “I understand.”

  Victoria nodded, and pressed her thin lips together. “I hope you don’t think that’s unfair.”

  “You have never been unfair.”

  “I don’t want you to resent me.”

  “I don’t resent you. I think you’re right about everything. And I promise I will consider your request seriously. It’s just—retirement would be a dramatic change for me.”

  “Of course.” Color seeped back into Victoria’s cheeks. She picked up her fork and dug into her salad. Gideon sat back, and regarded the Gerald Sargent Foster painting of yachts on
the wall behind the sofa. Racing, while not quite a masterpiece, had been the perfect painting for his chambers since his first term, when he borrowed it indefinitely from the Smithsonian American Art Museum. Six severely pitched yachts ripped through a choppy sea, their sails twisted and taut, harnessing the prevailing winds in an attempt to eke out a small victory. The painting always reminded him of life on this Court. But if that race on the water was a metaphor for his career, how would it extend to his life in two years’ time? Was he supposed to slacken his sails, straighten his hull, watch the others zip away into the horizon? Bob along the waves and go fishing, for fuck’s sake? The curator at the Smithsonian, an obsequious bald man, twitched his ears with delight when he realized that this Sargent Foster painting was en route to decorating an associate justice’s chambers in the Supreme Court Building—delighted and honored to be lending it to him. The magnitude of Gideon’s new position had struck him just then, when confronted with that man’s twitching ears—the scope of the opportunity he had been given, the chance to do important work, to make a difference in U.S. history.

  Victoria put down her fork. “Another thing. I’d like you to come home for dinner tonight and sit at the table with the boys. They’re only in town for a week, then back to California for God knows how long, and you have barely seen them. I know it’s June, and the busy season around here, and you’re swamped, but still. It’s so fleeting. It would warm my heart if you could put aside your work for a night, so we can be all together, like other families. Do whatever the boys want. Do you think that’s possible?”

  “Of course it’s possible. What time?”

  “Six, six thirty.”

  “Absolutely, I’ll be there.” Gideon reached out and touched Victoria’s knee.

  After Victoria had packed away their take-out containers, wiped down the coffee table and left him alone, Gideon sprawled on the sofa with his shoes off and his feet raised on a pillow, sweating and queasy, his heart palpitating. His stomach felt distended, though he had hardly eaten his lunch. Two years left on the Court wasn’t anywhere near enough. His accomplishments so far had been petty at best, marginal work reminiscent of forgotten justices like Bushrod Washington and Morrison Waite, not the giants like William Brennan and Louis Brandeis. God, how he wanted to be like them!

  He hadn’t felt envy this severely since the weak-kneed misery of his 24th year, sitting alone in the library of Harvard’s Langdell Hall on that frigid afternoon, his pale face stinging as if slapped, his eyes pulling up from the large volume of US Reports resting on the oak table, opened to Brandeis’s monumental concurrence in Whitney v. California. Out the window, ashen snow spiraled sky-ward in an updraft. His breath was short and his body tingled, as if he had just gotten zapped in the solar plexus with a taser. That dreadful day in his third year of law school, when Gideon realized the depth and breadth of Justice Brandeis’s legal revolution—certainly the most important development of law in the 20th century—awakened him to just how much brilliance it would take, along with how many grueling years of effort, to make any significant contribution to American jurisprudence. A toxic and suicidal monologue looped through Gideon’s brain in the weeks following his discovery, a rush of self-doubt, pathological comparisons of himself to his peers, terror at the prospect of graduating Harvard Law with anything less than summa cum laude. Possessing all the genius in the world would not necessarily translate into a single Brandeis-worthy achievement; it would only guarantee his career as a preening, stuffy, know-it-all lawyer, a fate that had no value, one that disgusted him, frankly. Gideon worked diligently for the rest of that term, reading everything Brandeis had written, both as a revolutionary lawyer and as a towering Supreme Court justice—briefs, law review articles, opinions and dissents, even the casual but mellifluent letters that Louis had scribbled to his brother Alfred back in Kentucky. Brandeis had bellowed his radical ideas into the wind like a Biblical prophet, a lone and unheard voice in a conservative, laissez-faire nation: the re-definition of free speech and the First Amendment to protect dissonant beliefs; the inauguration of sociological research in legal briefs via Muller v. Oregon; a new conception of privacy, or rather the right to be let alone, as protected by the Constitution, first outlined in his prescient article for the Harvard Law Review back in 1890. But all that detailed knowledge of Louis Brandeis’s work only increased Gideon’s despair. Whenever he concocted a potential new reading of some settled clause or statute, he was quickly able to trace the roots of his idea to a footnote or line of reasoning originating with Brandeis. He was plagued for months, all through that hellish Cambridge winter, stuck in that ratty old Salvation Army armchair in his drafty apartment smelling of burnt bacon, until his angst peaked on a single day in March, when his hand went numb, triggering a humiliating, false-alarm, myocardial infarction trip to the Cambridge emergency room: clutching his chest while dialing 911, his Gray Street neighbors teetering out their windows as he moaned in the stretcher, that ridiculous oxygen mask pressed against his face, the roaring ambulance, and of course the physician’s condescending smile while reporting to him the results of his flawless EKG.

  Gideon sat up, slipped on his shoes. He had come so far since law school, had achieved so much, and he still had at least two full terms on this Court. Two years was not long, no, not relative to the glacial pace of legal progress, but it was time enough to force the hearing of Al-Tounsi, and to transform that ruling into a majestic statement like Whitney v. California or Olmstead v. United States. One case, fortuitously timed and magnificently written, could be posited as the go-to precedent for an entire area of law. He needed a memorable crown if he was going to even consider ending his uninspired career.

  Justice Davidson’s ancient chambers had occupied the same trio of rooms on the first floor of the Supreme Court building since the mid-1970s, a short walk from Justice Rosen’s along perpendicular corridors. Now Gideon stood before Lorraine, a secretary almost as old as Davidson himself, and asked if he might briefly bother the senior Justice to discuss an important matter. Lorraine stammered, unsure of how to respond. She fiddled with glasses that resembled a flattened butterfly, a pair she had worn for as long as Gideon could remember, probably from well before his arrival at the Court, and then picked up the phone and buzzed her boss. Davidson readily agreed to see Gideon, in spite of their unspoken code of meeting all together in conference or the Dining Room to avoid the appearance of factionalism. But that was to be expected of the old man. Bernhard was nice to everyone; he honored all entreaties that came before him. He hobbled over to the doorway to meet Gideon at the threshold. The Justices exchanged a few pleasantries before closing the door and moving to Davidson’s seating area. No couch, here. Just a couple of plush chairs and a coffee table facing the fireplace.

  Gideon hadn’t visited Bernhard’s chambers since their friendly meet-and-greet during Justice Rosen’s first term on the Court. A photograph of Bernhard’s wife and their three middle-aged kids hung beside an honorary doctorate from the University of Pittsburgh. On the counter behind Bernhard’s desk, there was a signed football sealed away in a plexiglas case and, next to it, a photograph of a much younger Bernhard Davidson posing with a large, grinning man in a pinstriped suit. Gideon pointed to it.

  “Why do I have the feeling that your football there has been touched by more than just one Pittsburgh Steeler?”

  Bernhard, who was fiddling with his loose bowtie, laughed and nodded. “I’m proud to say that it was one of the three used in Superbowl Thirteen. In Miami, Florida, January 1979.”

  “Won, I take it, by the Steelers?”

  “Would I have it here if they had lost? Of course they won! 35 to 31, over the Dallas Cowboys. Sheer bliss, I tell ya. I was at the game. Even got to meet the whole team the day before they played. Hence that picture of me and MVP Terry Bradshaw, you see, up there. They promised me one of the game balls if they won, and signed it even, all of them—Coach Noll and Bradshaw, Franco Harris and Lynn Swann, Lambert and Joe Greene a
nd—”

  “Oh Lord, Bernhard, please tell me you’re not going to name the entire roster of the 1979 Pittsburgh Steelers.”

  Davidson laughed. “Well, you see, those were the days when people actually knew my name.” The old jurist fixed his watery eyes on nothing in particular, the long-gone apex of his fame. “I had just recently been appointed to the Court. New kid on the block, cat’s pajamas, and all that. Dan Rooney, the Steelers’ owner, son of the great Art Rooney, reading in the papers of my affection for the hometown team, offered me prime seats. And then the network showed me on TV during the game. VIP treatment, it was. And I gotta tell you, Gideon, I’ve met my fair share of presidents and senators and royalty since then, but there are few human beings on earth who can still set my ancient heart jumping like Mr. Terry Bradshaw.”

  It was hard not to like Bernhard. Gideon had never heard him utter a rude or self-important comment, and the long paper trail of Davidson’s storied career, which Gideon had read almost in its entirety, was filled with empathetic rulings and an overwhelming sympathy for victims—even, in one memorable obiter dictum from a minor criminal case, to the opponents of his beloved Steelers. Although his prose style had never graduated past the flatly pragmatic, his jurisprudence sparkled with passion and creativity. Davidson had given countless supportive speeches to unions, civil rights groups and lawyers on the cusp of radicalism, and his legendary tales about his colorful father, Gary, a Pennsylvania steelworker and union organizer, which he lovingly recounted at lunches in the private Dining Room, always made Gideon smile.

  “But I suspect you’re not here to talk about the rise and fall and subsequent resurrection of my Steelers. What’s going on?”

  Gideon offered his colleague a brief rundown of what he had learned that morning from Senator Mahoney: the existence of the Michael Inge declaration and the soon-to-be-filed petitioners’ reply brief asking the Court to reconsider its denial of Al-Tounsi.

  As he spoke, Gideon recalled a decisive sentence that Davidson had written in his opinion on the Court’s denial of that case: The exhaustion of available remedies must occur as a precondition for the Court to accept jurisdiction, but of course that does not require the exhaustion of inadequate remedies. Gideon finished his little speech by repeating those words, putting special emphasis on inadequate. Davidson listened with a scowl, his fist pressed against his soft chin and jowls.