“Well, that’s not good news.”
“Of course, we’ll have to read the Inge declaration before deciding anything, but I thought it might change your opinion on cert.”
“It certainly does take the wind out of my sails.” Davidson rubbed a hand through what was left of his thin, gray hair.
“So I’m thinking we can probably raise another vote in conference by the end of the month. And we should change our minds, in my opinion. Grant this thing an argument for next term.”
“You know we haven’t changed our opinion on a cert denial in over sixty years, Gideon. The Court just doesn’t do that.”
“I know we don’t. But we haven’t gotten hit with a declaration like this in sixty years either. I’m thrilled.”
“Oh, you shouldn’t be thrilled.” Bernhard frowned and again fiddled with his bowtie. “The last thing either of us should want is to hear Al-Tounsi.”
Gideon regarded his old colleague carefully as he shook his head and stared at the rusted grate inside the fireplace. “What do you know that I don’t?”
Bernhard sighed. “I don’t like playing games, Gideon. All this horse trading and gossip behind the others’ backs—but yes, there are some occasions when the smart thing to do is poke around a bit and see if you can’t suss out which way the chips will fall if it comes down to a vote. So here it is. My little secret, as it were. One of my clerks confessed a few months ago that she talked to one of Katsakis’s about Al-Tounsi. Talos, apparently, has gotten very worked up about the Military Commissions Act and its severe limitations on constitutional habeas.”
“Wait a second—Talos didn’t think the case ripe six weeks ago, but once we grant it cert, he’ll go with us. I mean, that’s guaranteed. He joined us on Hajri.”
“I’m not talking about ripeness, Gideon. Talos held his nose and went with us on Hajri because my jurisdictional loophole let him off the hook on the big questions. That’s the only reason. There was no rebuking Congress there. He didn’t have to tell them that they had blatantly disobeyed the Constitution when they passed the Detainee Treatment Act. But this is different. Even granting this thing cert, with the MCA explicitly denying us that right, why, that would be a huge slap both to the President and Congress, which Talos does not want to do. It would make them all look very, very bad. And I tell you, he doesn’t want it.”
“The man has principles on habeas. He joined us on Bayat.”
“Bayat was nothing compared to this. You know that. Bayat was ultimately a jurisdictional case that avoided all the big issues. It was statutory bullshit, excuse my Russian. I mean, come on, Gideon, this is the Constitution we’re now messing with. You think Talos is willing to say that both Congress and the President flouted one of the most basic provisions of the Constitution when they passed the MCA, and that they’re basically just a bunch of vicious crooks elected by a bloodthirsty mob? Talos Katsakis? A man who would throw all precedent under the bus if it could only—please God—make his saintly, rose-colored United States of America look better? You really think that?”
“Yes, if he believes it, which I think he does.”
“Well, you’re wrong, then. He won’t do it. It’s too severe and damaging. And I don’t think he believes the Constitution extends that far, either.”
“Come on, Bernhard. His Hajri concurrence? All that high principle and sweeping rhetoric? Talos acting like some goddamn Superman?”
“I don’t want to debate this, Gideon. He won’t go with us. His clerk made that very clear to mine. We wouldn’t have his vote if we heard Al-Tounsi.”
Gideon rolled his head back and groaned. “Well, so what, then? We don’t have Santa Claus’s vote either, doesn’t mean we shouldn’t grant this thing cert.”
Bernhard laughed. “Gideon, please, think. Who do we have? The usual suspects: Kolmann, Van Cleve, you and me. Do the math. The MCA’s strict on its prohibition of habeas—we’re talking about an absolute for the Subic detainees; there’s no more fancy footwork for me to do here, no more loopholes or minutiae to exploit. Katsakis was our only swing on this. So there you have it. If we hear this case, Gideon, we lose it. It’s not Bayat and it’s not Hajri. There are no more hedges to hide behind. We don’t have the votes. And if we lose this case, God forbid, there will be a very nasty precedent on the books prohibiting habeas for enemy combatants in Subic Bay or anywhere else, clear as day. I mean, Killian would probably end up writing that opinion, and who knows how it would be abused by subsequent executives. It would be very hard to overturn. No, I promise you, the best thing we can do here is try our best to put off making any decision about this contentious thing until we have got a more favorable Court. Believe me, it pains me to deny cert when I think of those men stuck in Subic Bay—some of whom, I’m sure, shouldn’t be there. I know they would be freed in due course if they could just get their proper habeas. But I really do think it’s better in the long run, better for justice, if we can just sit back and show a little patience here. We’ll have another chance at this, and pretty soon, I think. But not with this case. Not now. We need patience, Gideon.”
So there it was. Davidson’s logic was cynical as hell and unseemly—justices, after all, were not supposed to consider politics in their decisions; they were supposed to interpret active legal disputes in a neutral fashion—but it was pragmatic and realistic, the product of a rational mind with a long and nuanced view on history. At least it was comforting to know that Davidson’s resistance hadn’t stemmed from the abandonment of his heroic progressivism. Moreover, come to think of it, the senior Justice was right. They would lose the case if they heard it. Almost certainly. But goddamn it, Gideon thought, as he sat back in his chair and nibbled on the outside of his finger with the same intensity that his poodle chewed on pigs’ ears, it wasn’t his responsibility to cast other justices’ votes, only his own. If the right side didn’t win Al-Tounsi, he could still write a scathing dissent that would be championed by legal scholars and human rights watchers all over the world.
“Look, Bernhard, you can’t take responsibility for Talos or Killian or anyone else on this Court. Only yourself and your vote. And neither can you take responsibility for a country of idiots electing a fool like Mark Shaw president. Al-Tounsi’s the crucial question of whether the Constitution protects habeas for these detained people, and it begs our ruling. Now, we might end up offering a dissent instead of an opinion, but we still have the responsibility to say something on this issue. You know that’s right.”
Davidson nodded, but looked rather sad at the prospect of adopting Justice Rosen’s idealism. He smiled faintly at Gideon, grabbed his cane and scooted forward, as if he were about to stand. He was certainly indicating that he didn’t want to talk about this forever, that he was uncomfortable with it, and only wanted to make one final point.
“You’re right in theory. But this is the real world. If I were you, Gideon, I would be looking right now for a way to minimize the importance of that Colonel’s declaration, not maximizing it. I don’t know what’s going to happen here, and I suppose your revelation of this Colonel Inge thing might damn well make it impossible for me to vote against cert a second time—I mean, it might not leave me any good pretense that I can twist my logic around—but I have got to tell you, I’m going to be pulling out every trick in the book to look for a way out, not a way in. I remain convinced. We’ll lose Al-Tounsi if we hear it, and that would be very bad news indeed for the United States.”
When Gideon and Victoria Rosen moved to Washington, they bought their small brick house on Porter Street in Cleveland Park mostly because of its proximity to Maret, the school they had chosen for their twins, but also because the house itself was situated atop a small, wooded hill rising to the north, which meant it offered surprising privacy near the bustle of Connecticut Avenue. The neighborhood was leafy and green and lush in that mid-Atlantic way, vines on the trees and semi-tropical flowers in bloom. In the height of the humid summers, crickets stridulated all afternoon, fa
ttened by copious greenery and strengthened by the strong sun, a daily reminder that Washington’s roots dipped well beneath the Mason-Dixon line. The Rosens’ kitchen and breakfast room featured a big glass-paned door that opened out into a back yard of two tall pin oaks on their side of the fence and an enormous poplar on the Quebec Street property behind them. The Justice loved his home.
Now, at six o’clock on a mid-June evening, not even close to twilight, Gideon occupied his favorite seat at the breakfast table, tapping his fingers, studying the giant poplar on his neighbor’s property. Trees that large didn’t grow in the Chicago area; every day he was astounded by its magnificence. Open take-out containers were spread across the table, food he had purchased from Banjara, the Indian restaurant near the Cleveland Park Metro station, on his brisk walk home. Victoria was fetching glasses and water from the kitchen.
“Max! Jacob!” She moved to the stairs, pitcher and glasses in hand. “Dinner.” The floorboards above them creaked with the boys’ movements. Victoria returned to the table and sat across from Gideon, tucking a lock of hair behind her ear, and registering his impatience. “Thanks for doing this.”
He forced a smile for his wife.
Goldie, their aging poodle, stood from her bed on her creaky knees and wagged her tail to greet Max and Jacob as they skipped down the stairs in mid-conversation. Gideon’s sons were two good looking, sandy-haired, half-Jewish boys, Jacob noticeably buff from the gym, Max gangly and tall. Although both were grown men now, they were unshaven and disheveled like college kids, wearing sweatpants and threadbare T-shirts. Gideon recognized Max’s shirt. He used to wear it frequently during his high school days. It featured a black-line portrait of a bearded man with bushy eyebrow and bedraggled hair, a blazing heart fixed to the center of his chest and a shimmering corona emanating behind him, as if his head blocked the sun in a perfect eclipse. One of his loosely outstretched arms invoked Jesus’s serenity, but the other rested on a Mitchell BFC 65mm film camera. His placid, almond-shaped eyes gazed heavenward in full acceptance of his suffering. Beneath the drawing, block letters inquired: What Would Kubrick Do? The joke had appealed to Max when he was an irreverent, 16-year-old would-be auteur, but now that he was in the process of realizing his dream, having just graduated with an MFA from USC’s School of Cinematic Arts, he must have relegated it to sleepwear for these visits to his childhood home. They pulled up chairs on either side of the table, facing each other.
“What are you two talking about?” Victoria handed Max the water.
“Tornados,” said Jacob. “And whether or not one of them tearing through town at precisely the moment when act two transitions into act three is too ex machina for our screenplay.”
“Ah.”
“I say yes, Max says no.”
“’Cause we’re hamming it up and playing with style.” Max handed the water pitcher to his brother. “It’ll all work with a bit of self-consciousness.”
“Max, as usual, gives too much credence to self-consciousness.”
“No, I don’t. It’s Coen brothers territory.”
Victoria scooped a small helping of palak paneer onto her plate and glanced back and forth at her boys, amused. Max and Jacob gobbled down equal-sized portions of butter chicken and aloo gobi—twins with the same taste in food, as much else—while Victoria picked at her creamed spinach. With a mound of vindaloo on his plate, Gideon took a bite, and thought about the image on his son’s T-shirt.
Max had worshipped Stanley Kubrick as a teenager, and probably continued to do so. While in high school, the boy regularly heaped glowing praise on the camera angles used in 2001 or The Shining, or expressed his grave disappointment with Eyes Wide Shut. All Kubrick, all the time. He used to speak with an ironic coolness, like so many in his generation, which Gideon had found baffling and infantile. But the more subtle manifestations of Max’s Kubrick mania, including the way his son had walked back and forth across the kitchen while pontificating about his idol, had always reminded Gideon of his father, Seymour Rosen. Max even looked like Seymour, with his skinny body, bobbing gait and early balding. It was eerie to watch Max in action, like his father reincarnated.
Max happily spooned Indian food onto his plate, and then shoveled it into his mouth. Such ease and lightness, after a full day writing a screenplay with his brother up in their old bedroom, a couple of overgrown kids, seemingly in full confidence of their creative abilities, their future successes. Gideon’s throat tightened. His sons were pursuing careers in cinema. They had translated that sensation of awe—sitting in a darkened movie theatre as a child—into their professional choices. God, the thrill of the movies! When Gideon was ten years old, he used to bike with Abigail on hot Saturday afternoons down to those packed art deco theatres like the Music Box and the Portage for a matinee of a western, film noir or gritty war story. What could beat that? The rapture of a thousand excited kids surrounding him in plush seats, entire north Chicago neighborhoods, all of whom, like Gideon, had happily spent their full week’s allowances on the price of a ticket, a bag of popcorn and a small sack of gum-drops. And that burning, gnawing desire to be Gary Cooper in High Noon, to embody Sheriff Will Kane in a town of cowards, forced out of his pacifism by a gang of cold-blooded murderers. And Gideon’s concomitant desire to have Gary Cooper’s off-screen status, so that all the kids in Lake View, Uptown and Albany Park would point at him awestruck as he strolled by their stoops—Gideon Rosen, movie star. All the neighborhood kids would identify with his on- and off-screen exploits; they would envy his life and his talents. How many hours had he passed alone in his backyard with various tree-branch firearms, or running through West Ridge’s streets, acting out scenes from his favorite movies? Of course, he had long ago made the more mature choice to enter law. But now here were his twins, refusing to abandon their youthful dreams. Their boldness and confidence seemed to dig deeper, and to stretch well beyond what he had ever experienced. Gideon, feeling old, slumped at the dinner table and swallowed hard as his sons ate.
Max glanced up from his plate, fork in hand, and caught his father studying him. “What?” He widened his eyes like a teenager busted for sneaking home too late.
“Did you know I wanted to be an actor when I was young?”
“Oh, brother.” Victoria groaned as she reached across the table for the pitcher of water. The boys chuckled.
“Now, don’t worry, I’m not going to start regaling you with my war stories.”
“An actor?” Max looked genuinely surprised.
“Absolutely. I wanted to be in the movies and on stage. I was very serious about it.”
“Actors have awful lives. And you’re not exactly slumming it these days, Dad. I can say with confidence you made the right choice.” Jacob was posturing an authority that he must have acquired along with his cinematic skills at USC.
“Well, thanks for your approval.”
“I’m just saying.”
“I could’ve been decent. I showed early talent. In eleventh grade, I was in my high school production of Awake and Sing!, and then in my senior year School for Scandal. I was Sir Benjamin Backbite. Apparently, I was pretty good. That’s what I was told.”
Victoria and the boys studied him skeptically.
“I kid you not.”
“Who told you that? Your mommy?”
“Actually, yes, my mother, your grandmother.” Gideon remembered Estelle Rosen sitting in the center of the third row of each performance, how she had cooed and beamed and praised him to the moon backstage afterwards. “She, among others.”
And he could have succeeded as an actor. He had inched along that path; he was well on his way. He was not a wooden wannabe with an inflated sense of his own gifts. He had had the skills to succeed but had chosen another endeavor. Max must have sensed a darkening shift in his father’s mood, because he grinned and raised his palms to signal capitulation.
“Don’t look so angry, Dad. I’m sure you had talent.”
“I think he wants us to gi
ve him a part.”
Victoria and Max laughed.
“I’m not angry. I just thought you might want to know that little fact about your father.” Gideon took another bite of his chicken vindaloo.
“We’re not giving you any preferential treatment, Dad. If you want to get cast in one of our movies, study your sides, get in line, and audition with the others.”
After they had finished dinner and washed the dishes, they gathered in the living room to watch a film the twins had recommended. “I love this movie,” pronounced Jacob, as he slipped the DVD into their old machine, turned off the lights and retreated to the armchair. Max, Gideon and Victoria settled on the adjacent couch. Gideon tapped his feet on the fluffy rug while the opening credits ran. He was much too antsy to enjoy a movie, with the precedents and logical twists of Deniston v. Globalsmart churning in his mind, along with short dissents on other cases, and a new pile of cert petitions that needed review, and a mountain of related habeas opinions to read for Al-Tounsi. But the boys had been talking a lot about this one, and he had promised Victoria he would do what they wanted like “a normal family.”
The Lives of Others followed a prominent playwright in East Germany and the Stasi officer assigned to spy on him. Right from the start, Gideon found the story absorbing. The boys, who were sometimes prone to showing off their cinematic knowledge, limited their running commentary to a few choice insights, keen and wise. As he watched and listened to them, Gideon warmed with admiration for his sons. They were right to like this film, right to recommend it to him, and correct in their analysis of how it worked. Max and Jacob were going to be successful filmmakers. Maybe they would turn out like the Coen brothers, just as they planned. Gideon shifted on the couch. Perhaps in 50 years a couple of loyal teenage fans would be sitting around some computer or hologram—or whatever they would use to watch movies in the future—to watch the Rosen brothers’ masterpiece films, and one would turn to the other and say: Did you know that their father was on the U.S. Supreme Court? The other would look back incredulously and say: No, really, you’re kidding! And then the first would nod and grin and insist: Really, I’m serious—the guy was some obscure justice in the early 21st century.
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