Al-Tounsi

by Anton Piatigorsky

  “Of course you will. I know that about you, Rodney.”

  “Because I agree that Ms. Pinkleman was treated unjustly. I can see that. And the new law will be better. It will close loopholes like the one Ms. Pinkleman slipped through.”

  “Indeed it will.”

  “But Sarah, do you really believe Title VII, as it stands today, and as it did last year—the particular wording of that statute—includes protection for Ms. Pinkleman? That it includes the exact protection you claim it does?”

  “Of course I do, Rodney! That’s why I wrote my dissent!”

  “And yet you still think Congress should pass a new law? One that will make that already evident protection more overt?”

  “Only because the Court ruled against me. As a practical matter, yes. Because my reading wasn’t accepted and adopted into law.”

  Rodney shook his head. “So there’s my problem with your Pinkleman dissent. It’s the same problem I have with Gideon’s opinion in Al-Tounsi, with all its talk of “functional tests” and redefining sovereignty. I just do not understand that willful flexibility with the written law. The way both you and Gideon have toyed with the wording of statutes, and with the Constitution itself.”

  “You don’t understand it? Really? You’re that naïve about law at this point in your career?”

  “I understand the difference between a purposive view of statutory interpretation and an absolute, textualist one. I understand the subtle philosophical differences between those positions. But what I don’t understand, Sarah, is how you, or Gideon, or anyone else, could actively search for ways to stretch the law so as to make it include the readings you prefer. That you could so boldly hunt for outlying precedents, exceptions, bends in the rule, when the primary reading is so clear. The MCA declared, in plain language, that Subic Bay exists under Philippine sovereignty and therefore habeas rights cannot extend to the detainees. That is the written law. A sixth-grader could understand the meaning of those words, just as a sixth-grader could understand that the proper reading of Title VII stands against you in Pinkleman. I think both points are obvious from the text of the statutes. They are absurdly obvious. And I think both you and Gideon know that, too.”

  Sarah stepped away from Rodney and faced him, angrily.

  “Are you accusing me of deceit, Rodney? Are you saying that I am willing to break the law to get the answer I prefer?”

  “Unfortunately, I am.”

  “Well, that offends me deeply. I am not deceiving anybody. I really do believe that good jurisprudence includes reading outlying precedents, and adapting any law to make it fit with exceptional situations. And that is exactly what I did to justify my interpretation of Title VII.”

  “In other words, looking for loopholes. Ways out. Cracks in the wording.”

  “That is what every single lawyer or judge has ever done in the history of law. That’s what it means to advocate for a position. To stake out an opinion.”

  “And I think all of that is abuse. Every act of stretching or manipulating the clearly written law, of finding a way out, is abuse.”

  Sarah groaned in disgust, and then stood beside Rodney in awkward silence.

  “Forgive me,” Rodney said. “I have gone too far. I have no business accusing—”

  “No, it’s my fault.” Sarah touched Rodney’s arm, and let her anger pass. “I asked you about your Al-Tounsi concurrence. You’re only defending yourself, which is fair enough. Even though you’re goading me on, you evil man.”

  Rodney chuckled. That was better. “You are right to question me, Sarah. You see, in Al-Tounsi, I found myself at a terrible impasse. I agreed with Killian’s interpretation of what the law says, and yet I simply could not sign onto his opinion, which denied those detainees their last chance at habeas corpus. I was stuck. That is why I wrote my ‘strong statement,’ as you say. I have never been in this position before.”

  “Well, that’s my real question, Rodney. Why were you suddenly stuck in this case and not others? Why now?”

  “Too many reasons. I can’t explain. I’m not sure I really understand why myself.”

  “Maybe you can try.”

  Rodney took a moment to consider. “I believe something radical shifted inside me, Sarah. I see signs of it everywhere in my life.”

  “I see it, too. I see it in the way you’re behaving tonight.”

  “I feel it all the time. For a year or so, it’s been mounting. Here’s a good example. This term I have a clerk in my chambers, Jessica Klein—”

  “Oh, yes, the brilliant one. I tried to get her, too.”

  “She’s a remarkable woman. But in past years, I would never have hired her. I would have thought her too brash and opinionated, too brilliant. I would have encouraged her to go to your chambers. She does not have enough respect for the written law for my taste. I saw all of this in my first interview with her.”

  “You have always preferred more modest clerks.”

  “Do you remember Cindy Chin?”

  “No.”

  “No matter. I was fond of her. She was my more typical choice: modest and hardworking and intelligent. I’m attending her wedding this summer.”

  “Lovely.”

  “When I compare Ms. Chin to Ms. Klein, I stand in wonder at the difference. I am still not certain that Ms. Klein is the better clerk—although she will certainly have the more illustrious career—but I am certain that hiring someone like her, with all her talents, is an example of this shift you see in me. It is a sign of what has changed.”

  “That’s a good thing, Rodney.”

  “Is it? I fear the change puts me on a crash course with the law. It’s likely that I am heading for disaster with my Al-Tounsi concurrence. I suspect a man like me isn’t supposed to be so bold.”

  “I still don’t understand why now. Why didn’t you write a concurrence like that for Pinkleman if you thought the ruling was unjust?”

  “The circumstances of the two cases are not at all the same.”

  Sarah growled with impatience. “What happened to you, Rodney?”

  “I was called.” Rodney made a fist and pounded it lightly on the Kennedy Center’s railing. “I had no choice. I had evaded the call for too long, and I couldn’t do it anymore. I thought I made all this clear in my Al-Tounsi concurrence—called by particular circumstances, having no choice but to respond. What I felt happen to me when I wrote Al-Tounsi was exactly what happened to me when I received Cassandra’s phone call to come to the hospital, just like that. I was called and asked to be present, to take responsibility for what was happening in front of me. I could not ignore it. Doesn’t that make sense?”

  “I think so.”

  “When Cassandra was in labor, there wasn’t much for me to do in the delivery room but watch. I could only stand there and be present, holding her hand, making sure she wasn’t alone. At first I was rather uncomfortable with my limited duties, but as the hours clicked on, I started to think maybe my presence was the point. It was my entire task—to be present as a human being. I am Cassandra’s closest kin, her father—and there is a bond between us, whether she likes it or not, whether I like it or not. There are certain obligations that come with my position. I felt certain I was fulfilling my side of that human bond—finally, after years of being so negligent—just by being there. So that is the answer to your question. My role in Al-Tounsi required more activity than simply my presence, of course—that comes with being a justice of the Supreme Court—but in principle it was the same response.”

  Rodney stretched his arms wide and laid his hands on the railing. He was a diminutive man, and he usually stood with his hands behind his back or modestly clasped in front of him, but not now. This posture made him look more like a president than an unassuming justice. He looked commanding and strong.

  “I had a strange thought in the delivery room with Cassandra. I imagined myself being sculpted into a man. It was as if I were comprised of clay or stone, and circumstance was chipping away a
ll the bits around me, removing everything that was not-Rodney, or perhaps building me up from scratch. That process made me distinct and alive. I felt remade as Cassandra’s father, as this new little boy’s grandfather. It was as if I were being born again. My daughter’s call sculpted me into Rodney Sykes. Merely because I stood still in the right place at the right time for as long as it took!”

  Sarah erupted in tears. She leaned over the balcony with her elbows on the railing, heaving and crying, and Rodney wrapped his arm around her shoulder. “He’s going to die.” Sarah removed her glasses, wiped her eyes, and returned them to her face. She gradually caught her breath. “I understand you, Rodney, and I think that’s very eloquently put, but I disagree with you. I profoundly disagree. You weren’t called. That’s not what happened to you. You read the situation, you changed your mind, and then you acted on your decision. You did the same thing I did when I wrote my Pinkleman dissent, or when I signed onto Gideon’s opinion in Al-Tounsi. You decided that the law wasn’t correct by some criteria of your own, and then you were active with its boundaries.”

  Rodney released her shoulder from his grasp.

  “Jonathan is dying. That circumstance didn’t call me. It didn’t choose me. It’s just what’s happening. What defines me is what I choose to do inside that circumstance. I have chosen to take care of him. Every time I bring him water, or help him roll over, or make him soup, I am making that choice again, and each time what I’m really choosing is to love my husband. I have not been sculpted into myself by some force outside of me; I am choosing to be myself, to be Jonathan’s partner and wife and dear friend, just like I choose every day, when I go into work, to be Sarah Kolmann, the Supreme Court Justice. I know I could hire someone to help me with Jonathan’s illness, and I would still be his partner and wife, but I also know that if I did that, I would be a different kind of partner and wife than the one I want to be. I would be a different person, profoundly. So not only do I get to choose my role, but also the particulars of that role. I choose the idiosyncrasies of myself. It seems I’m the kind of person that rolls the covers down a certain way, or warms up chicken broth badly. And I don’t want Cathy or anyone else to do that for me any differently than I would. It is my choice to be me. That’s what you did, Rodney, both by going to Cassandra when she called you and by writing your concurrence in Al-Tounsi. You made yourself. I don’t see that as some kind of negative space chipped away. You were the carver, Rodney. You.”

  Cathy insisted on washing the dishes, although she must have understood perfectly well that Sarah wanted to be alone with Jonathan. Cathy said there was just no way she could leave her father’s unwashed soup bowl, plus her own used teapot, cup and saucer in the sink. If Sarah wouldn’t let her sleep on the couch, then the least Cathy could do was leave the place spotless before hurrying off to her hotel. Sarah hovered beside her daughter at the sink, watching. It was simply out of the question to let Cathy stay the night. Sarah didn’t need help with Jonathan.

  “So was he coughing much?”

  “It was nothing serious, Mom. Although he did seem more tired than he did last time.”

  “Well, he is more tired, Cathy, that’s not unusual.”

  “Okay, I’m just saying.”

  “Nothing happened in particular? He ate all his soup?”

  Cathy had finished her last dish. She wiped down the wet counter with a dish towel, rinsed and wrung it out, and hung it up to dry.

  “We had a perfectly fine evening here. You should’ve stayed at the opera.”

  “It wasn’t a good production. There was a young bass who couldn’t sing Godunov at all.” Sarah grabbed a fresh dish towel from the side drawer, and dried the wet dishes her daughter had left in the rack. “I don’t see why I should bore myself just for the principle of going out.”

  “Fine.” Cathy shrugged. She jiggled her jaw from left to right, as she did when she was a kid, exasperated by her mother. “Do whatever you want,” Cathy added, over her shoulder, as she escaped into the front hall.

  Sarah smoldered in hot shame as she finished drying the dishes, and putting them back where they belonged. She was behaving terribly.

  “I’m going now!” Cathy called from the entrance. “I’ll come by for breakfast before I head back to Boston.”

  “Hang on.” Sarah couldn’t let her daughter leave like this.

  Cathy was wearing her light coat, clutching her purse and a plastic bag that held yarn and knitting needles. She stood in the threshold, tight-lipped and pale. Cathy had propped the door open with her foot, as if there were a fire in the apartment and she was ready for a quick escape. She did not look eager for a hug.

  “Thank you for your help.” Sarah embraced her anyway, reaching up to pat her taller daughter’s back. “I’m sorry I wasn’t able to enjoy my evening.”

  Cathy didn’t hug her back. “Dad’s sleeping well. I wouldn’t disturb him if I were you. I’ll come around eight, if that’s okay.”

  After she had gone, Sarah hurried into the bedroom to check on Jonathan. His bedside light was on, rotated toward the wall, casting the room in a faint yellow glow, and darkening Jonathan’s face in shadow. He was sleeping quietly, as Cathy had promised. He had kicked off most of his blanket, and only one leg was covered. Jonathan’s skeletal body all but swam in his favorite blue pajamas, now several sizes too big. His Adam’s apple bobbed with each slow inhalation. His cavernous eye sockets, the protruding cheeks, the blunt curve of his skull as it dipped into his temporal bone—all of this was visible through his skin. Jonathan lay very still, so that he reminded Sarah of a mummified body dug up in Pompeii, cemented into the fetal position—a terrible image. She pushed it from her mind, extracted the twisted blanket from under her husband’s leg and covered him up to his chin. He looked more comfortable now. He looked less exposed.

  She left the light on. Standing in the hallway, not knowing where to go or what to do, Sarah spun her wedding ring around her finger. Speaking with Rodney had somehow relaxed and irritated her simultaneously. She had articulated her motives for caring for Jonathan and connected them to her work on the Court: in both situations she made decisions, conscious choices, and declared herself through her actions. In those choices she decided what was right: actively caring for Jonathan was similar to actively interpreting Title VII in favor of Gwen Pinkleman. But Rodney Sykes did not sign onto her interpretations, literally or figuratively. He balked at her activist language, her so-called meddlesome approach to the law. That was unsettling. Rodney probably thought her approach to caring for Jonathan was meddlesome. Cathy seemed to think it was. And there was no doubt some truth to that claim. Tonight’s production of Boris Godunov was terrific; on any other occasion Sarah would have stayed and enjoyed it. She had only left the opera because she couldn’t bear to loosen control over Jonathan’s care. Sarah needed to be part of the solution; she needed to be caring for Jonathan right now. She had none of Rodney’s patience. Rodney wrote in his shocking Al-Tounsi concurrence that he waited until “every available state or federal court denied jurisdiction” before daring to interfere with the written statute and the Constitution. He was right about that. He did not insert himself too soon. He waited until he was called.

  Jonathan coughed a deep, phlegmy rattle. Sarah hurried into the bedroom and found him struggling to prop himself up in bed. She moved his pillow and rested it against the headboard so he could lean back comfortably. He coughed again, and it sounded terrible. She grabbed a tissue from the side table and forced it into his hand. Coughing still, he brought it to his lips, spat wads of phlegm into it from deep in his lungs. Sarah shrunk, wondering if his cancer had spread to his lungs, or if this was the beginning of an endgame bout of pneumonia. That prospect heated her face and set her heart pounding.

  She took the tissue from Jonathan’s hand as he caught his breath. He gave her a harsh glance. “What are you doing, here? Why aren’t you at the opera?”

  “I couldn’t.” She checked the tissue for blood. No
thing but a thick and milky mucus.

  “For Christ’s sakes, Sarah.” Jonathan tensed his body as he tried to roll onto his side. It was too much of a struggle, so he stopped.

  “What are you getting mad at me for?”

  “I don’t need your constant attention. You’re going to burn yourself out if you don’t give it a rest.”

  “If I want to stay here, that’s my choice,” Sarah said, sharply. “My choice, and I can make it.”

  Jonathan erupted in a second fit of coughing. His face reddened, his body shook—he didn’t have the strength for this! He needed to see a doctor right away!

  “Jonathan, sit up. I’m going to take you to the hospital.”

  “No!” He coughed and coughed. He spoke again when his fit had eased. “You’ll do no such thing. I was lying down and my lungs filled up a little. I’ll be fine in a moment.”

  “I don’t want you to get worse in the night.”

  “Back off, Sarah!”

  Jonathan heaved his weight and turned onto his side. His breathing eased, and he took a deep breath. Slowly, his body settled into the mattress. If his coughing got worse again she would take him to the hospital whether he liked it or not. Jonathan reached for his blanket, padding around for it behind him—and here Sarah resisted every impulse she had of directing his hand to the edge, and helping him pull it up. He found the blanket eventually, and drew it over his shoulder.

  “Could you turn off the light, please?”

  “Of course.”

  She left him alone, and then sat on the couch in the living room, stunned. Jonathan’s irritation was perfectly timed, a persuasive argument for Rodney and Cathy’s position that she meddled too much, that she inserted herself too early, and didn’t wait to be called. Was she doing the same thing with the law as she was with Jonathan’s care? Had she been too brash, too active in her opinions and dissents? Was Rodney’s attack valid? Had she meddled unnecessarily for her entire, distinguished career?

  Sarah closed her eyes and sighed. She recalled the night she had met Jonathan, back in 1955, attending a cocktail party for first-years at Harvard Law. Jonathan was standing at the bar with four other students, none of whom Sarah had met. She approached as they talked about their notoriously difficult 1L Contracts course, exchanging anecdotes they had heard about the professor. She joined their conversation and then several students—all men—insinuated that both Contracts and Civil Procedures would be far too difficult for Sarah or the other six women at Harvard to pass. Jonathan made a joke—something about women having had plenty of experience negotiating contracts with men—and soon after the others, who did not laugh at his joke, left the two of them alone.