Al-Tounsi

by Anton Piatigorsky

  Gideon read part three of Rodney’s concurrence. He finished the section and read it again, and then a third time. It was just a short few paragraphs, pure dicta, led by a succinct quote from Henry David Thoreau, but it was also the kind of soaring, elegant writing of undeniable moral force that countless Americans would quote for centuries. The other branches of government have not fulfilled their sworn responsibilities, Rodney wrote. That does not mean I must ignore mine.

  Gideon’s neck was peppered with sweat when he finished reading the concurrence. His stomach contracted once, tightening into a hard and painful ball. He put it down and stared at his painting of racing yachts. He picked it up and read it through once again. The worst part about Rodney’s majestic and suicidal work was its brilliance. He spoke about responsibility in terms that Gideon had never before seen in a legal opinion. He spoke about the individual responsibility of a justice as a person, a living breathing human who just so happened to be on the bench, a man or woman who was burdened with the unique responsibility of hearing the call of a suffering petitioner. A justice, in Rodney’s opinion, was more than a representative of the law. But even with this defiant claim, this slap in the face of legal tradition, Rodney supported his argument with traditional technique and precedent. The wider implications were immediately clear to Gideon. It was a proposal that extended well beyond this one particular instance of habeas rights granted to a small group of suffering people stashed away in Subic Bay. It pertained to any abuse of the law by the political branches of the federal government, and could easily be extended to any individual state. The doctrine of subversion would, in theory, be just as valid a tool in an abuse of tax law, family law, tort or criminal procedure. It knew no boundaries. It dared to attack, head-on, the biggest moral problem that arose for judges, time and time again, within the wider justice system, namely: What must we do when the law is unjust, and no elected officials dare to correct it? Rodney answered that question directly, responsibly, productively. It was not an answer that would stick with the others on the Court—that was certain—but if it was ever invoked or used, even hinted at by any other justice in the future, in any circumstance, it could offer a radical redefinition of the correct reach of the law, its justification, its validity, and an insertion of ethical thinking into the American system in a way that Gideon had never before imagined possible. It was beyond brilliant. It was revolutionary.

  No other justice would dare sign onto such a loony-tune concurrence. It was worse than lunacy. Rodney would be raked over the coals by liberals and conservatives alike. He would be met with complete derision by everybody except the most out-there legal professors in radical schools, accused of not fulfilling his oath, not doing his job. Who knew what kind of trouble he was setting up for himself? It was career suicide. But wait, wait—was Rodney right? Was he just in the true meaning of that word?

  Oh, God, thought Gideon. Yes, he was.

  Rodney’s concurrence was more right and fair than anything Gideon had read in years. But what did that mean? What should he do about it? Could Gideon dare sign onto that concurrence? Could he give it the power of two justices’ signatures, a far more potent and weighty force than Rodney’s single voice? Would Gideon be willing to put himself on the line along with Justice Sykes, to stand behind Rodney’s insane and risky proposal?

  Again, Gideon’s stomach knotted, the pain doubling him over now, chest to knees, the sweat flowing from his pores. When it eased, he moved to the couch and lay down. He kicked his shoes off and fussed with the pillow. Another contraction compressed a small, hard ball inside him. Gideon groaned. If only he had stashed a heating pad in his desk drawer, or better yet, a hot water bottle.

  Anyone who signed onto Rodney’s concurrence ran the risk of going down in history as one of the greatest crackpots to ever sit on the Court, second only to the author himself. Rodney’s concurrence wasn’t legal thinking, in the terms they had accepted and had all sworn to uphold. No, Gideon couldn’t sign it. But then, Gideon realized, like any risk taken, the potential reward was so huge it was beyond imagining. If, in time, others bought into Rodney’s bold logic, if his doctrine of subversion was adopted and used by other judges on any level, its importance couldn’t be overestimated. Of course, the odds of that happening were beyond slim; they were minuscule. If Rodney submitted this thing, he was most likely dead. But no risk, no reward.

  The pain in Gideon’s belly rolled through him in waves. A hot water bottle would offer him more than heat; it would have heft and force, the equal distribution of soft plastic against his skin. If only Gideon could fast-forward 50 years into the future and see with certainty what would be made of Rodney’s concurrence, whether justices and lawyers would write it off as a crackpot aberration or root it firmly as the seed of a new jurisprudence—if only! Gideon curled, semi-fetal, and moaned in pain, and then suddenly realized that he was doing the opposite of fast-forwarding into the future; he was receding 65 years into the past, back to the summer of 1942, back to the bungalow in Chicago, with a darkened bedroom substituted for his Supreme Court chambers, and with Rodney’s concurrence replaced by Shostakovitch’s Seventh Symphony. Gideon was Dr. Seymour Rosen reincarnated, he realized with horror.

  He bolted upright. He winced through another contraction and slipped his shoes back on.

  What did it matter if Gideon signed Rodney’s concurrence or not? It was Justice Sykes’s brilliance either way; it would never be his. By signing onto that concurrence, Gideon would expose himself to almost inevitable derision but receive none of the potential acclaim. For Gideon, it would be all risk and no reward.

  Gideon suffered through another painful contraction. So he would do nothing. He would file his own opinion as is, and let Rodney concur with this crazy document. That decision would let the detainees receive their treasured habeas, albeit on grounds that could never be extended to any other case, a ruling that would have no power over other circumstances, because Gideon’s opinion would be a plurality, not a majority. But still, Gideon would win his precious case; the right side would win. The detainees would get habeas. And Gideon would be cheered on by those progressives who lacked an ability to see the extent of Rodney’s revolution. He would be celebrated for a brief period of time, but then forgotten. Life would go on.

  He stood from the couch and went to his window. He had been waiting years for this victory, and now it felt hollow. His opinion suddenly meant so little to him, and would mean so little to the world. What he had thought was bold thinking was not so bold at all. Out the window, five o’clock, the sun was high in the sky. The glory of spring was rising. A bright-red cardinal landed on his ledge, chirped once at him and flew away.

  Victoria, last December, at her going-away party, stood before her weepy co-workers and thanked everyone in her office for their support. She kissed Angie, hugged staff, carried a box filled with photographs and papers from her office into the car. Victoria was home right now, reading a novel, or gardening. Waiting for him to retire. And so deeply disappointed.

  Justice Gideon Daniel Rosen of Chicago, Illinois: that was who he was. A good man, and he had a decent career. For 15 years running, Gideon had served as an associate justice of the United States Supreme Court. And so if a Democrat was elected President in November, he would serve another term, and then in June—a year and a month away from now—at the time of greatest convenience, he would hand in his resignation.

  9

  INTERMISSION

  Justice Kolmann lingered on the Kennedy Center’s balcony as blinking lights and harmonic chimes announced the end of intermission. She sipped her ice water, the glass trembling as it touched her lips. The night was warm and clear, and the sweet perfume of late-blooming azaleas scented the mild breeze. Sarah felt such relief to be out on this terrace overlooking the dark water of the Potomac River.

  “I can’t go back for another act.”

  Rodney nodded grimly, as if he had expected as much. He was disappointed surely, and for good reason, a
s Mussorgsky’s Boris Godunov was a rare and challenging treat, and no one could possibly sing the part better than the Russian bass whom Washington Opera had flown in from the Kirov. Rodney was grinning with childlike joy when he left the auditorium after the first act, and he raved about the production during intermission.

  “You should go and watch the rest without me. It’s terrific, Rodney, and I can get home fine.”

  “I wouldn’t dream of it.” He sipped his wine.

  How stupid, stupid, stupid of Sarah to have come to the opera tonight! Why had she let Cathy and Jonathan convince her to use her tickets, and then to invite Rodney in place of her husband? It should have been obvious that this experience would be crushing. We’ll be fine, Jonathan had said. Go and enjoy. Yes, they were fine back home, but what about her? Cathy was probably knitting her sweater on the sofa, or bringing Jonathan his blanket, or aiding him in the washroom—and Sarah needed to do those things. She had no desire whatsoever to sit quietly in a stiff velvet chair in the Kennedy Center’s Opera House, lost in the musical trials and tribulations of some 17th-century tsar, when she could be useful at home.

  In the lobby, the last stragglers threw melting ice cream bars in the garbage, abandoned half-empty glasses on counters, and hurried into the auditorium before the ushers closed the doors.

  “Last chance, Rodney.”

  He stayed beside her. Sarah leaned on the railing, and heard beneath her the roar of cars zipping along on Rock Creek Parkway. The balcony was suspended above the busy road, bordering the Potomac. Even standing this close to the water, she could only see hints of the river, as the Kennedy Center’s lights shined brightly behind her.

  Rodney leaned his elbows on the railing next to her. “Do you want to go home now?”

  “Soon. Not yet.”

  “All right. We can stay here as long as you like.”

  “I don’t like leaving Jonathan alone when he’s so sick.”

  “I understand. But Cathy is happy to help you, yes? That is, after all, why she came into town.”

  “I know it’s fine. I’m talking about me, not them.”

  “She probably wants some time alone with her father.”

  “I know, I know, you’re right, and Jonathan wants it, too.” Sarah sighed and closed her eyes and felt the soft warm breeze against her cheeks. How many times had she stood on this terrace with Jonathan, either between acts of an opera—hundreds of them—or at fundraising events? Jonathan moved seamlessly between prestigious British theatre directors, bank executives and senators, charming them with anecdotes about his friendships with Edward Albee or George Soros—but never dropping names for the sake of his ego, never showing off. He would stand out here on the terrace, gazing north toward the infamous Watergate building, and tell stories that would make everyone laugh. Jonathan always put those people at ease, whereas Sarah made them freeze in terror and—frankly—in awe. They were reticent and formal around her, nervous to be near a Supreme Court justice, and eager to slip away. How could Sarah be social without Jonathan by her side?

  “You’re awfully quiet,” said Rodney.

  “The only thing Jonathan eats these days is soup.”

  He sipped his wine, but said nothing.

  “I’ve been making him chicken broth with macaroni, and sometimes a watered-down miso. I make beef stock for him too, but I think that’s too rich. Jonathan doesn’t like it. And he can’t eat anything solid or meaty, nothing you have to chew. His teeth hurt, and they bleed. His jaw muscles are losing strength.”

  “I’m sorry to hear that.”

  “Of course I don’t make him any soups from scratch. They’re all broths that he’s made himself and put in the freezer, or something I’ve bought. He would never eat my awful soup. The man still has his standards.”

  Rodney chuckled, and balanced his wine on the railing. Sarah imagined pushing it over the side with her pinkie, listening to the glass shatter on the curb of Rock Creek Parkway beneath them.

  “It doesn’t matter how much Jonathan eats, he continues to lose weight.” Across the river, on Theodore Roosevelt Island, an owl hooted softly and ominously. The sound faded as it flew away. “Let’s talk about something else. Tell me about your grandson.”

  Rodney smiled. “He’s beautiful.”

  “Gideon told me that your daughter invited you into the delivery room?”

  “She did indeed. I suppose he also told you about the surprise phone call I received in chambers? I was quite shocked when Cassandra asked me. Certainly if Rebecca had been alive it would never have happened like that.”

  “Small blessings, then.”

  “Yes, indeed.” Rodney was still smiling at the memory, staring out into the night. He looked content, running his fingertip along the edge of his wine glass. Sarah couldn’t remember the last time she had seen Rodney look so relaxed and at peace. It had been years, certainly. “To be honest, I think Cassandra panicked. I think she asked me to come help her on the spur of the moment, and perhaps regretted it as soon as she hung up the phone. But once I was there in the delivery room with her, I provided some comfort. I do think I did that.”

  “I’m sure you did, Rodney.”

  “Oh, Cassandra was a wonder! Strong and brave. It was like nothing I could have imagined. I didn’t get see my own children’s births, of course—you know how fathers were prohibited from the delivery room in those days, or discouraged.”

  “It sounds like this was an important experience for you.”

  “It was. It shook me. I stood beside Cassandra, holding her hand, through hours of labor. I don’t know quite what to say about it. I would like to say more, but I’m at a complete loss for words!”

  “Sometimes words don’t do the trick.”

  Rodney laughed. He put his arm around Sarah’s shoulders and squeezed. She stiffened under his pressure, raised her brow, and eyed him curiously. A gesture of connectedness, even with a close friend, was so unlike Rodney Sykes. When his laughter petered out, he released her from his grip and they leaned on the railing again.

  “You know, Rodney, I am rather surprised by your concurrence in Al-Tounsi.”

  He nodded. “You’re not alone.”

  “It’s quite a strong statement. You’re aware it’s going to cause a big storm when we release it?”

  Rodney polished off the final sip of his wine and smiled into his glass.

  “It would have been much easier and more prudent for you to sign Gideon’s opinion along with the rest of us who disagreed with Killian.”

  Rodney rubbed his face. “You know I could never do that, Sarah. Sign an opinion with which I fundamentally disagree? Impossible. Remember, I did not sign your dissent in Pinkleman, either.”

  Sarah nodded. She remembered it well, both the case and Rodney’s refusal to sign on with her. Pinkleman v. Watson Carburetor Company, was Justice Kolmann’s most prized dissent, probably the most impassioned case of Sarah’s career, written at the end of last term, and she had lost it by only one vote. Rodney’s vote. The Democrats presently running for president were outdoing each other on the campaign trail with promises of passing new legislation to amend Title VII of the Civil Rights Acts, so that it would force the law to comply with the logic Sarah had proposed in that dissent, against the Court’s niggardly ruling. That was her word, niggardly, which the candidates repeated ad nauseam on TV. If Congress really did that, and if a new president proposed and signed that law—why, it would be a monumental day for women in the workplace, and one of the proudest achievements of Sarah Kolmann’s life.

  “I didn’t sign your Pinkleman dissent because I believed the wording of Title VII is precise and clear,” said Rodney. “Gwen Pinkleman had 180 days to file her complaint to the EEOC regarding her employing company’s discrimination, and she did not do it. She failed to fulfill her obligations for an active suit.”

  Sarah sipped her water. “Except the Watson Carburetor Company engaged in a gradual and clandestine form of sex discrimination, which limi
ted Ms. Pinkleman’s promotions and reduced her pay raises over many years.”

  “I know that, Sarah. I am not questioning whether or not Ms. Pinkleman was mistreated.”

  “She was mistreated, absolutely, and her situation required a subtle reading of precedent and an adaptation of Title VII to the conditions at hand.”

  “That’s what you say.”

  “Yes, that’s what I say. One of the explicit purposes of Title VII is to prohibit discrimination on the basis of sex. I believed the conditions Ms. Pinkleman faced in her place of work were covered by Title VII protection, and that given the company’s clandestine dealings, her situation required a flexible reading of the statute.” Sarah was angry now; she couldn’t stop herself. “In particular I felt the courts needed to better define what constitutes an act of discrimination under Title VII; what precise acts should fit into the 180-day legal period for filing a claim with the EEOC. You disagreed with me then, and still do now. You think the wording of Title VII prevents that interpretation. Fine. A majority of justices agreed with you. I don’t see your larger point.”

  “Congress will probably change Title VII to embrace your claims.”

  “I hope they do. They should.”

  “They will, once this country is run by a new administration. And when they do that, I will support their new law wholeheartedly.”