Al-Tounsi

by Anton Piatigorsky

  Rodney sipped his wine.

  “Will you please say something?”

  Rodney cleared his throat, and paused as he tried to think of what to say. “I was woefully unprepared for conference this afternoon. I did not review our certs before it began. To be perfectly honest, Samuel—and I trust this information won’t find its way into the back pages of The Washington Post—I cast my cert votes today exclusively on the assigned clerks’ recommendations. I had no other recourse.” He allowed that confession to sink in, and then glanced at his son for the first time since their fight. “Are you shocked by that admission?”

  “No.”

  “I have not done that once in my seventeen years on the Court.”

  “I don’t think it’s such a big deal.”

  “I was certain I’d be discovered. But my irresponsible methodology failed to raise my colleagues’ suspicions, which I don’t believe is to their credit.”

  “What are you trying to say?”

  “I’m saying, more and more, I am thinking of retiring from the Court.”

  The strangeness of declaring that aloud gave Rodney pause. He pushed aside a piece of lettuce with his fork, and focused his aim on a sliver of red onion. He pressed the tines into it.

  “I am no longer certain of what I’m doing there. My jurisprudence is a mystery. I don’t know if I even agree with it. I cannot see how such an unmoored individual has any place on the Supreme Court.”

  “I can think of ten or so justices off the top of my head who’ve gone through a crisis like that.”

  “Not the same.”

  “You’re evolving.”

  “I’m not evolving, Samuel. I’m not a Galapagos finch. I’m confused. And yes, I’m angry, you’re quite right about that, but I don’t know why.” Rodney spoke with softness, now, steadily. Another mystery, this—how the rage he had just declared as his own immediately receded into something foreign and inaccessible. “I have been thinking more and more about Kosterman v. The Regents of the University of Oregon,” he said. “Do you remember that case?”

  Samuel nodded.

  “Of course you would. It’s only reason I was appointed to the Court, isn’t it? I’ve been mulling it over. Certain aspects of it I still find odd and thorny. Although it’s the same basic problem with all affirmative action cases, really, including the more recent ones. Justice Rosen calls them the hardest to decide.”

  “Why are you thinking about it now?”

  “Farrow Marsh only assigned it to me because I am black.”

  Sam scowled and tried to flick a piece of fallen lettuce off the table. It hit the salt shaker and stuck to the glass. “Your strict legalism had something to do with that assignment, as well.” He peeled the leaf off the glass. “Not just your skin.”

  “My fidelity to the law certainly earned me the love of the Republican establishment, and then led to my appointments, Circuit and Supreme, but I doubt it had anything to do with the initial assignation itself. It was just a coincidence that I happened to agree with the plaintiff. No, my blackness was the important feature. I was the image of something useful to project. The negro who could argue a disenfranchised white man’s position against affirmative action convincingly before the United States Supreme Court. I was a representative of the new breed of African-American men, who didn’t have to rely on affirmative action, who certainly didn’t sanction it, who maintained only strict fidelity to the law. What a wonderful symbol I was. And yes, the law was and remains clear: you cannot discriminate based on race, whether your skin is white or black or green. Affirmative action, no matter how well intentioned, as it was in that Oregon case, should never be allowed. All are equal. I remain agnostic as to whether that decision should have been justified through the Equal Protections Clause of the Fourteenth or Title VI of the Civil Rights Act.”

  “So then it’s not as if your opinion has changed.”

  “No, that’s not it. I have been thinking about something else. The sustained arrogance—for lack of a better word—that I discerned in the Regents of the University of Oregon, and their lawyers, and their briefs. It was remarkable. They were all so sure, in a particularly liberal way, that they were doing the right thing when considering race in their admissions policies. Even when the Court ruled against the university, and they gracefully acquiesced, they did so with this air of self-satisfaction, as if a mere court ruling could never touch their deepest self-confidence, or the rightness of their cause. They remained positive of their ability to do good and be just, regardless of how any individual case itself was resolved. Yes, that’s it—that’s what really bothered me. Their assumption that it was possible to be good and just.”

  “You don’t think it was?”

  “No, I don’t think it ever is. I suppose that’s what I’ve been mulling over these days. Trying to align that disturbing and disorienting skepticism of mine with my legal rulings—not a possible task, of course, and really not the point either, I should add, when you assume any position of strict fidelity to the—”

  “Don’t get sidetracked, Dad. Stay on topic.”

  Rodney smiled, pointed his fork at Samuel. His son responded with fresh laughter, and suddenly their meal felt less tense and somber.

  “I think there’s an assumption, Samuel, we make in law that an individual or a group—whatever unit is named in the suit—is somehow capable of being good and just, and that it has full control over its decisions. It’s a position that comes from the Enlightenment, but it is, in fact, a form of faith. Faith in the reasoning abilities and moral integrity of an individual self. But I don’t think that is an accurate understanding of reality. How can the University of Oregon Law School, for example, ever decide upon an entirely moral or just set of admissions criteria when there are so many conflicting demands upon it? All those young and eager applicants imploring them: let me in, let me in, I am demanding that you look at me, I beg you to answer my call. There are only so many spaces. A limited number of bodies can fill their seats. So the University of Oregon Law School is really no more able to be just and right and moral, in pure terms, than it is able to admit every resident of Beijing into their first-year class. Agreed?”

  “Yeah, but law and morality are separate things. You always say that. The legal question is what’s allowed, not what’s right.”

  “Yes, of course, I think that, but what disturbs me is that the law itself poses its questions in such a way that it assumes the possibility of morality, of goodness. Just think of the questions here: Who should be accepted into the school? What criteria should be used to determine admission? These questions both assume that a right answer is possible. But it’s not. The only truly ethical answer cannot exist in our compromised world. Everyone who wants to be admitted to the law school should be admitted, without exception, without consideration of his or her grades or ability. Anyone who wants to receive a legal education should be allowed to study at any law school they want at any time. It is an ethical requirement that those in power of the school’s admissions accept each and every applicant.”

  Samuel whistled. “Damn. You are hard core.”

  “Of course you see the practical absurdity with that. There aren’t enough teachers, buildings, money. There won’t be enough jobs in the profession to support the graduates. It does not make any sense to accept everyone. On the contrary, accepting them all would only lead to heartbreak and disappointment. So then what could the school do to be more fair? I have considered that in depth. Perhaps they might install an open admissions policy, accept every applicant for the first year, and then cut the huge number who do not achieve at the required level. Let the candidates earn their places through present work. Sounds better, yes? However, I would argue, it only delays the injustice. It’s a fraction less cruel, at best. The students who have requested a legal education would still be denied their fair appeal, and only for callous external reasons like available jobs, money, number of chairs in the room, number of teachers to grade them.”

>   “Right,” said Samuel.

  The waitress approached cautiously, a full plate in either hand, and laid two steaming meals before them. “Here you go.” She topped off their glasses with wine.

  Rodney unfolded his napkin and laid it on his lap. “Perfect. Thank you.” He carefully sliced a bite of his chicken, placed it in his mouth and chewed.

  “I’m waiting, Dad.” Samuel was smiling at him, but not yet eating his eggplant.

  Rodney finished his bite. “Yes. Most people want to ask: what is the moral and just way to admit students into law school? But I have decided that question has a dangerous and false assumption. The real question should be: what is the least unjust way of admitting them? What is the best way of minimizing harm rather than maximizing good? You see, Samuel, the proper question is never about the right thing to do, only the least wrong thing to do.”

  “So you assume a negative starting point instead of a positive one.”

  “Precisely. Or, more accurately, we should make the assumption that a flawed institution is behind every decision rather a perfect one. An institution that can never really have any right answer.”

  “I love it.” Samuel slid forward on the bench, and pinched off a large chunk of eggplant parmesan with his fork. He put it into his mouth, but then grunted in pain and opened his lips. His mouth emitted a faint wisp of steam. “Hot,” he murmured.

  “Perhaps you shouldn’t eat so fast.”

  Samuel, ignoring his father, swallowed the troublesome bite. “What’s the effect on your decision, then? If you start from the negative like that, how does your result differ?”

  Rodney shrugged. “I don’t know if it differs at all. Perhaps the starting point changes nothing substantially. We must still weigh the same factors, and most likely will end with the same decision we would have, had we proceeded traditionally, trying to do what’s right. The real difference, I suspect, can be found in the arrogance that I objected to initially. It is a difference of tone and attitude rather than of substance. It’s about the color of one’s response. I suspect an administration that thinks of itself as doing the least amount of harm rather than the most amount of good will be more humane and understanding to the huge majority of applicants whom they have no choice but deny—the unaccepted multitude. Such an administration will understand fundamentally that every acceptance letter they offer forces them to send ten or more denials, and that the injustice of those denials far outweighs the justice of the acceptances. Everyone is equal before the law, yes—I believe that, and more. Everyone is equal, period. There can be no ethical criteria for accepting one person into school over another. None whatsoever. Neither race, nor intelligence, nor grades, nor test scores. Birth order is certainly not just, nor is wealth, nor class—one’s ability to pay. Admission policies of any sort are limiting acts of injustice committed on worthy people at a staggering and ferocious pace.” Rodney paused, and considered how he wanted to conclude his unexpected tirade. “Would the tone of acceptances and denials change, if the schools in question realized that each letter sent was an act of injustice? Would the relationships between accepted students alter if they understood that their success and happiness was predicated on an injustice committed to other people? Would those students treasure their good fortune in a different manner? Would they treat those less fortunate with more respect and understanding? Would they learn humility, and develop a more honest perspective of themselves? Would any of this alter the egoism, narcissism and arrogance of the accepted, and especially of those who made the decisions?”

  Those like Emmanuel Arroyo. But he didn’t say that. Rodney shrugged instead. What did he know? Maybe yes, maybe no. He couldn’t answer these questions. He was no expert on human behavior. And moreover, he was finished speaking. He plunged his fork into his chicken, and realized he was hungry.

  “I’ve got to say, I’m impressed. I like what you’re saying, Dad.” Samuel took another bite.

  “It’s what I’ve always believed, although I’ve never quite been able put it into so many words. It is a belief that has been at the root of my reticence, and my strict adherence to written law. I have never been one to think I know the answers, that I am so intelligent and wise as to pronounce the truth. I have always doubted my ability to make fair decisions. But, you see, it’s this anger, Samuel—and you are quite right to call me on it—this anger I feel, my present distraction, so overwhelming, and so furious …”

  “At what, though, Dad?”

  “At arrogance.”

  “Arroyo’s?”

  “More than his. I don’t know.”

  Rodney indicated to the passing waitress that he wanted to speak to her. He praised the cacciatore, as perfect as Ray always made it, and asked for a cup of coffee to accompany his meal. He watched as she topped up his glass of wine.

  Something else was bothering Rodney, sharper, as yet untouched, right at the root of his anger, churning inside him. He sipped his wine, the warmth spreading through his chest. He could not access it, but for the nagging guilt, the feeling of being accused.

  “He is Egyptian, isn’t he? This man, Majid Al-Tounsi.”

  “Yeah,” said Samuel. “His family has lived in Cairo for years. Generations, I think. Egyptian passports.”

  “Al-Tounsi, though, doesn’t that mean The Tunisian?”

  “I think it does, yes.”

  “I find that interesting.”

  “It makes sense, when you think about it. Why would someone be called The Tunisian if he lived in Tunisia? If everyone else around him was just as Tunisian as he was? You use a name like that only if you’re a foreigner, an outsider in the neighborhood. If you are a Tunisian surrounded in all directions by Egyptians.”

  Rodney did not sleep well. He rose from bed at 5:30 A.M. and wandered into the kitchen, feeling oppressed, as if he wanted to crawl out of his skin. Out his window, Connecticut Avenue was dark and empty but for the large plastic trash bins dotting the sidewalk at regular intervals. He went back into his bedroom and dressed in warm layers, long johns, a pair of 20-year-old, rarely worn jeans, and a heavy sweater. Wool hat and ski gloves. He rode the elevator to the lobby and stepped out into the cold and darkness. He took a deep breath. Such satisfying silence. A passing cab slowed, its driver flashing him an inquisitive look: Need a ride, buddy? Rodney shook his head, lowered his shoulders, and walked.

  Thanks to years of gentrification, Washington, D.C., was no longer the murder capital of the nation, as when he had first arrived. Still, Rodney wondered if it was safe to wander the streets aimlessly before dawn. But it was fine, he told himself; he lived in the relative peace and harmony of an affluent Northwest neighborhood, and the air, his movement, the lack of a destination—it gave him more peace than he could find lying in his bed or sitting in chambers. He walked toward Chevy Chase, and twice rounded the circle, the border with Maryland, before veering southwest along Western Avenue, passing red brick homes with their front porches, columns, and white shutters. He reached Wisconsin Avenue.

  He picked up his pace now, focusing only on his steps, through the luxury of Friendships Heights and past Giordino’s, through Tenleytown, and beyond the Sidwell Friends School. He turned right into Maclean Gardens, where he could merge with the upper portions of Glover Archibald Park, which would be safe to walk through once the sun had risen. It was after seven now. A biker in a balaclava zipped passed him on the path. A handful of old Chinese ladies, in layers of mismatched sweatpants and sweatshirts, pinks and light blues and steely grays, with their hats pulled low on their foreheads, perched on the frozen grass, and practiced tai chi.

  By 8:30, after crossing Reservoir Road, the long and narrow park deposited Rodney at the Potomac River. He powered south through Georgetown, beneath the Whitehurst Freeway, staying as close to the water as possible, and avoiding the busier commercialism of M Street, up the hill. No one recognized him. He cut up to K Street when the bulk of Georgetown was behind him, crossed Rock Creek on the bridge, and merged with
a walking path that ran parallel to the Parkway. He did not slow his pace as he walked back down to the river. A handful of intrepid Canadian geese flew low toward the wilds of Theodore Roosevelt Island, perhaps regretting that they had not journeyed further south this cold winter. Rodney watched them disappear into the denuded trees of the memorial park.

  His feet ached. His fingers were frozen, as was the tip of his nose. Hunger churned his belly, thirst dried his mouth. He tried not to let any thoughts invade his motion, but for the occasional realization that he needed this walk, that it was an extension of the walk he had begun yesterday from the Court, for whatever that was worth. He approached the Lincoln Memorial, and cut away from the river, trotting up the long steps on its back side. He passed through the monument itself at mid-morning, with tourists taking pictures of the great, seated 16th President, and emerged on its eastern side, at the top of the iconic steps, overlooking the reflecting pool and the Washington Monument. Rodney breathed heavily. His lower back pulsed with a dull pain, and the ligaments on the inside of his knees ached and throbbed. His heart beat low and fast. No doubt he would have trouble walking tomorrow. In the far distance, on the other side of the mall, the Capital loomed, and behind it, invisible, the Supreme Court building. This was the opposite view of yesterday’s, he realized: the Great Mall from the west, rather than the east. Why had he returned?

  He was standing in approximately the same spot where Martin Luther King delivered his famous I have a dream speech, 45 years ago this summer. Rodney remembered that day well, 14 years old, watching on the old black-and-white screen wheeled into his high school classroom by Mrs. Kraft. He didn’t know what to feel about Dr. King and his radical civil disobedience back then, the Montgomery bus boycott, the marches and protests, the flagrant disregard for law. Some mixture of pride and shame at black people asserting themselves like that. He was young, and so no one asked him to take a stand either way. He had oscillated his whole life between an admiration for Dr. King’s moral certainty and a deep mistrust of it. Things are always more complicated than what the believers proclaim. As soon as a person disobeys the law, problems arise—always—and those problems will come back to bite that person in ways that he or she does not foresee or expect. That remains true even when the law is unjust, as it undoubtedly was in the Jim Crow South. Laws are the bones of society—without them, there is nothing capable of holding society up. Without law, anarchy ensues. No, there are better ways to force change than by breaking the law. The American political system has mechanisms embedded within it that allow for reformation. Hadn’t Thurgood Marshall proven that definitively? Thurgood Marshall never led marches or disobedience like Dr. King, but instead quietly challenged and rebuilt the law from within the system. He played by the rules and won. These days everyone celebrated Dr. King unthinkingly, but was that rash and often arrogant man really the person who caused the biggest change? In clear-eyed retrospect, wasn’t Thurgood Marshall the true hero of the Civil Rights movement? Wasn’t Sarah Kolmann the hero of gender equality as well, and not those well-meaning but ineffective women marching out in the streets? How could any person truly change law if he or she did not speak its language?