“How could you?”
“Sarah made a great point.”
“My own wife! Thou who art required to cleave unto me!”
“The audacity,” gasped Sarah. “Women these days.”
“Don’t you insane people realize there’s a precedent here? A two-thousand-year-old precedent that you’re about to overthrow willy-nilly after too much wine?”
“You don’t have the votes, Killian,” chided Sarah Kolmann, as she lowered her hand. “You lose.”
“But these two fools here aren’t even Supreme Court justices!” Killian thumbed toward the two spouses, amidst the general laughter. “They don’t count.”
“Too late to change the rules, Justice Quinn. Our vote is cast. And now, as the senior justice in the majority, I get to assign the opinion. I choose myself. I’ve got a firm hold on this argument, so you better look out. It will be blistering.”
“Well, I have every intention of writing a vigorous dissent. And you can count on me reading it from high on the bench—or rather deep in your couch, assuming I can maintain the sobriety to do so.”
“Deal.”
When the laughter died down, all four of them sipped their wine, and settled into a short silence.
“Well, that was fun,” sighed Gloria.
Sarah sat forward again. “But we’ve gotten away from my main point. Personhood, as a legal category, is still actively developing, and in ways that I think are troubling. There is the combination of a too-rigid exclusion on one end of the spectrum and a too-liberal inclusion on the other. So, for example, the borders of personhood are much too strict when it comes to the rights of gay and lesbian and transgendered people, and much too liberal when you consider the absurd expansion of corporate personhood.”
“Uh-oh,” said Killian. “You said a dirty word.”
Gloria and Jonathan chuckled.
“And now that we have Justice Arroyo in place of Van Cleve, it means we’re going to start seeing a radical expansion of what the corporate person will be allowed to do and be.”
“You don’t know that,” said Killian.
“I do know it.”
“Like what?” pressed Jonathan.
“Well, first and foremost, we’ll take Killian’s bugbear for corporations—free speech. He’s been fighting for that right since he was a young pugilist up on the First Circuit, haven’t you, Killian? Now it’s just a matter of time before he gets his way. In three or four terms at the most, we’ll be ruling that a corporate person has the same right to free speech that we’ve long granted only to natural persons. And that will be a disaster for this country. No more restrictions on campaign donations, political funding, buying votes. You name it.”
“Nonsense, Sarah. Any free-speech ruling we make would apply equally to unions and nonprofits, or to any incorporated gathering of like-minded individuals, so it would all balance out in the end. It would never be a license for only the right wing.”
“But neither a corporation nor a union is a person in the same way as a living creature. They don’t have desires and appetites, physical limits and accountability. And, most importantly, Killian, they don’t have a conscience. So free speech for those groups would be an entirely new expansion of personhood, and a dangerous one at that. Oh, but enough, enough, I hate talking about this subject!”
“You’re getting all worked up.”
“I’m glad you think it’s funny.”
“It’s especially funny because you’re going to lose on free speech.”
“Absolutely hilarious.”
“I find it positively delightful.”
Killian punctuated his teasing with a naughty, oversized wink. Although Sarah let him off with a wag of her finger, she realized, as she did it, that Killian’s prankish ways had increased in recent months. He had been cracking racier jokes in conference and taunting the Marshal in the court chamber. On one occasion, Sarah had caught him dancing a heavy jig in the hallway of the Supreme Court Building, trying to force their sourpuss Chief Justice into attempting moves from the Blackbird set dance, despite Eberly’s clear protestations about his bad leg. Killian seemed happier than ever, and there could only be one reason: Manny Arroyo’s vote had replaced Elyse Van Cleve’s. Regardless of whether Killian liked or disliked Arroyo as a man, the new Justice was shifting the law sharply toward Quinn’s jurisprudence. Al-Tounsi v. Shaw, for example, scheduled for argument in February, would most likely switch from a 5–4 ruling in favor of the petitioners into 5–4 ruling for the government, and that was assuming Talos Katsakis remained with the liberal wing. Killian Quinn, who would have certainly written a blazing dissent when President Shaw’s side lost, might now reasonably expect to write the majority opinion—and this for the most important case on presidential power in decades. Killian wouldn’t need to compromise on merits, or tone down his rhetoric, not that he was capable of doing so. Arroyo, Bryce, Sykes, Eberly and Quinn—five votes for the respondents, that was guaranteed.
“Our recent Subic Bay habeas corpus cases exist at that other end of the spectrum—where personhood is too restricted. Although I thought we had long ago decided that the right to the Great Writ applies to all persons, here we are, potentially limiting that right, deciding whether or not habeas should be applicable to a particular set of people in Subic Bay.”
“That’s not a question of personhood, Sarah. It’s a question of jurisdiction. You know that.”
“No, Killian. Ultimately, it is about personhood. Denying habeas is putting a limit on a fundamental human right, a right that should belong to all persons. If we say that habeas applies only to American citizens or non-citizens held in sovereign U.S. territory, that’s no different than limiting the general scope of personhood. Tightening its definition. Maybe not directly, but I think it’s related.”
“We shouldn’t talk about Subic Bay. It’s an active case.”
Sarah nodded. “You’re quite right.”
They sipped their wine and waited for Sarah’s little breach to pass over.
“Well, if corporations are going to be granted expanded person hood,” added Jonathan, brightly, “maybe they too should get habeas corpus rights.”
The four of them laughed at that.
“Oh, I’d like to see that case,” said Sarah.
“Now we’re just getting silly.” Killian grinned. “Too much to drink.”
“What a headache it would be,” Justice Kolmann continued, “if the warden at Riker’s Island was suddenly obliged to bring a corporation’s actual body before a judge—its living corpus, certainly, because the writ is very clear in its construction about that requirement, isn’t it, Justice Quinn? What would our poor warden do? How would he get the living and breathing body of, say, the Stanley J. Stinky Corporation, a free-speaking and fully delineated citizen of the fine state of New York, before, say, a particular district court judge of Lower Manhattan?”
“Stanley J. Stinky?” Killian’s astonished gaze darted back and forth between Jonathan and Gloria.
“Seeing as Mr. Stinky has long been an amorphous person, located on the 3rd to 7th floors of an office tower on 6th Avenue, Manhattan, as well as in several warehouses scattered around the continental United States, along with a few other subsidiary offices in Boston and Los Angeles and Washington—”
“Okay, okay, enough.” Killian pushed his big belly forward and stretched his back.
“And also in twenty different subcontracted factories peppered across the globe from Bangladesh to Morocco, India, China and the Dominican Republic.”
“I want my wife’s tiramisu.” Killian pounded playfully on the table. “I believe that’s my right as a guest in this home.”
“Indeed, it is.” Jonathan pushed back from the table, and went into the kitchen to fetch Gloria’s famous dessert. Sarah watched him go, and couldn’t help but wonder: what will New Year’s Eve be without Jonathan? Their meal would be catered, certainly, and the conversation would be less fun. Jonathan’s vanishing from t
he world was shockingly easy to imagine. Each person is a thing too fragile, too small. Sarah closed her eyes and saw herself lying on Cathy’s lavender bedspread, years ago, in their Cambridge home, her five-year-old daughter tucked inside her favorite sheets, clutching her big stuffed moose, the one purchased on their trip to Booth Bay Harbor, Maine. Booth the Mooth, she’d named it. They were flipping through pages of that Dr. Seuss book about the kind elephant, Horton. A phrase reoccurred throughout the book, and every time that Sarah read it, Cathy liked to repeat it. A person’s a person no matter how small. Horton the elephant saved a miniscule city on a speck of dust, which the mean kangaroo wanted to destroy. A person’s a person no matter how small.
Jonathan returned. He praised the tiramisu as he cut and passed around generous slices. He continued praising the dessert’s smooth texture as the bitter and earthy scents of coffee and cocoa pervaded the dining room. To Sarah, this was the smell of New Year’s Eve, as it had been for over 20 years. But what would happen next year? Would Gloria still bring her tiramisu? Would Sarah be able to savor the acidity of the Marsala wine, or the creaminess of the cheese, without Jonathan here to praise those same qualities? She would never want to eat tiramisu again. A single bite into her dessert, Sarah laid down her fork and watched the others finish their portions. Why couldn’t she just tell them about Jonathan?
Killian, the first to finish, sucked the final streak of mascarpone off of his spoon. “Oh, what this stuff does to me.” He waved his utensil at his wife. “Gloria, you’re a genius. A culinary Michelangelo.”
He reached his hand over and gave Gloria’s a big, warm squeeze. It was a perfect example of why Sarah loved Killian Quinn so dearly: not once had the Justice made a negative comment about his wife. He had only ever praised and complimented her volunteer work, her stay-at-home mothering, her culinary accomplishments. He treasured Gloria. It was odd, really, that the union between these two, certainly the most traditional and conservative marriage of any of Sarah’s friends, was also the strongest, and one she admired a great deal. If Sarah had met the Quinns as a younger woman, when she had been a more ideological advocate for equality between the genders, she would have had a harder time imagining that such fairness was possible within the confines of traditional marriage. But of course it was—under certain exceptional circumstances. Anything is possible. And that harmony, really, was testament to Killian’s integrity more than Gloria’s. There was equality between the genders inside the Quinn home, as far as Sarah could tell, and it was due to the immense respect that Killian had for his wife’s intelligence and work. He could have dismissed or disrespected her in any number of ways—offhand comments, vaguely misogynist jokes—and done so with total impunity, chalked it up to the way men dealt with their wives. It was doubtful, however, that Killian harbored a single negative thought about Gloria. Sure, he might have spent his days drafting opinions and dissents for the United States Supreme Court, but in no way did he consider that work superior to Gloria’s. It did not matter to him that society might rank their achievements; he didn’t.
Killian reached over to Sarah’s abandoned tiramisu to spoon himself another bite. “You don’t mind, do you?”
“No, please, go ahead. I’m too full.”
“This is how I get fat.” He hovered the loaded spoon before his mouth. “The thin people leave their bloody desserts on the table.”
“It was delicious. I just couldn’t. I don’t know.”
Killian put his empty spoon down. He reclined, cocked his head, and looked at Sarah carefully. “Something’s bothering you.”
Sarah shrugged. “I just think you should need to be a physical, flesh-and-blood person to exercise your right to free speech. You need lips to utter freely spoken words, or hands to sign them, or at least an aide who can interpret your intent, if all you can do is blink your eyelids in Morse code thanks to some dreadful motorcycle accident that you suffered in your youth. And if you want the right to keep and bear arms, then you really should have hands to hold your weapon, and fingers to pull the trigger. And if you want to practice your religion freely, as an individual, as is your constitutional right, well, then, you should have a digestive system that can consume kosher meat, or a tongue to accept communion, or a forehead that can prostrate itself five times daily in the direction of Mecca, if that’s what you believe. You can’t be an observant Jew or Catholic or Muslim or anything else without a body. And if a person finds herself imprisoned, and needs to exercise her right to habeas corpus, then she needs to have a body that can stand before a judge, a flesh and blood body, with sweat on her brow, and fleshy lips that can declare I was wronged, your Honor. We all know this is true. A person is an ‘I’. An I is a body.”
“Sarah.”
“I know, Jonathan. I know.” Sarah heard herself speaking with increasing softness, and she felt more than ever like weeping. “I’m sorry. It’s just that I’m increasingly aware of how fragile and tentative we are as people. Our so-called stable selves are so easily destroyed. Our lives are based on nothing but a few willful delusions. Biological systems. Legal systems. The big fiction of permanence. I think I’m just feeling that fragility more forcefully than ever these days.” And here she turned and noticed Jonathan’s lowered head, his fingernails picking at the loose fibers on the tablecloth, his refusal to look at her. “I’m getting old. And at a certain point in life one has to face the stark reality that you are not a permanent fixture of this world. You are a passing creature, and very small, and you will soon be gone.”
“Indeed,” said Killian. “Happy New Year.”
When the chuckles died down, Jonathan raised his gaze from his empty plate. His eyes were red, fighting tears. “If Sarah seems especially shaken tonight, it’s because I found out this afternoon that my cancer has returned, and it’s terribly advanced and aggressive. There is not much anyone will be able do about it.”
“Oh my.” Gloria pressed her fingers to her mouth.
“We haven’t told Cathy or Mark yet. We haven’t told anyone. I don’t know what I’ll say to them when I have to. I don’t have long to live. Six months. Maybe a year.”
“Jonathan, I’m sorry.”
“No, Killian.” Jonathan held up his hand, and wiped his eyes with the other. “Please. I didn’t want to dominate this evening with something that you can’t say anything about, or do anything about. It’s bad news, bad as anyone could get, and we all know it.”
“It’s my fault.” Sarah watched her own hands trembling on the table. “I should’ve never said all those morose things about aging.”
“No, it’s fine. You didn’t have a choice. It’s on your mind. I just … I …” Jonathan threw up his hands. “There’s nothing really to say, now, is there?”
“I can say it’s terrible. I’m sorry.”
“Thank you, Killian. It is terrible. Yes.”
Silence opened up between and around them, as they stared red-faced at the smeared chocolate on their plates. Confessing Jonathan’s illness didn’t make Sarah feel any closer to Killian or Gloria, and it didn’t make her feel any less like an actor playing the part of happy hostess. Her few bites of tiramisu revolted in her stomach. Jonathan, the first of the frozen group to move, adjusted his glasses and glanced at his watch. “It’s 11:53,” he said, brightly. “Who wants to watch the ball fall over Times Square?”
They moved into the den—or floated, really, as Sarah could hardly feel herself walking. She stood pressed against the large window, shivering from her proximity to the cold glass. Jonathan’s confession had the dual effect of intensifying her sensory experience and deepening the isolation of her thoughts. Her husband turned on the TV, and then stood back from it, remote in hand. On the screen, a couple of heavily made-up and hair-dyed announcers yelled into their microphones, projecting their voices above the cacophonous crowd of Times Square. All that screaming grated on Sarah’s nerves; it was insufferable, even with the sound set low. Neon lights flashed. A rock guitarist played screeching
notes while a rapper chanted what sounded to Sarah like obscene versions of elementary school rhymes. The camera passed over the crowd, across the blues and reds of the revelers’ dresses, jackets and hats—all so garish, so unwatchable. Sarah turned away from the television and saw Gloria stroking her husband’s upper back with two fingers through his shirt. Gentle, little strokes along Killian’s shoulder blades. The only peace that Sarah could find right now was in watching the tiny rhythm of that gesture.
“One minute left.”
The gaudy crystal ball slowly descended on its track atop One Times Square, and then burst into light, illuminating 2008. In the din of a screaming mob, Killian and Gloria kissed, and Jonathan quietly moved beside Sarah. He wrapped his stocky arm around her shoulder and kissed her on the temple. “Happy New Year, Sarah,” he whispered, certainly for the last time in his life. Sarah Kolmann closed her eyes and leaned against his chest.
7
SOVEREIGNTY
“I’ll be blunt,” Justice Sykes said to his clerks, who were all packed together on the couch across from him. “I remain unconcerned if these review procedures are an adequate substitute for habeas. Maybe they are, maybe not. Our opinions do not matter. It remains premature to address the question, as DTA-MCA review has not yet run its full course. So I see no other choice but to show restraint.”
Kyle and Samantha, two of Rodney’s even-keeled clerks for the term, nodded in favor of his pronouncement, but Jessica Klein, a bold and original legal thinker and a rising superstar, pressed her index finger into her temple and contorted her lips.
“You disagree, Ms. Klein, but I am certain.”
Jessica moved a stack of briefs from her lap onto the coffee table. “I think you have to assess the procedures themselves, Justice Sykes, because the Suspension Clause applies. If the procedures aren’t adequate, then the detainees are entitled to constitutional habeas.”
“The Suspension Clause does not apply to non-citizens imprisoned outside the sovereign United States.”
Al-Tounsi Page 23
