Al-Tounsi

by Anton Piatigorsky

  An email landed in Killian’s inbox, his computer chiming. It was from Katherine Kirsch. Not once had she tried to contact him by phone, email or letter in their entire relationship. Call me, it read.

  He looked around chambers, as if there could be someone here to spy on him, and then he deleted Katherine’s email. The Court’s central server, although famously private, would have a record of the transmission. A hacker could someday locate and publish it. But the email wasn’t incriminating, was it? It only proved that a relationship of some kind existed between them. Killian locked the door and sat in an armchair. He called Katherine from his cell phone, greeting her coldly.

  “I got a message today at work from Samuel Sykes. He wants to talk to me.”

  “Well, what did you tell him?” Killian’s stomach felt both empty and full at once.

  “I haven’t returned his call.”

  “You must have expected this, Katherine.” He tried to strip his voice of anger.

  “I didn’t expect anything. I told him my name without thinking.”

  Killian restrained his urge to say I don’t believe that for a second, to berate her, and to fight.

  “I know I owe you an apology.”

  “What you did was cruel.”

  “I know it was, Killian. I think I did it to be cruel. Although not entirely consciously. You were being so outrageously patronizing to me.”

  “That is no excuse.”

  “It is an excuse. You do not patronize me. Ever. It demeans me. I never told you to lose weight. I didn’t tell you that all my rich life experience has taught me it’s really not so smart to sleep with a much younger woman behind your wife’s back, and that you might in the future reconsider that decision, did I? So please pay me the same courtesy, and treat me with some respect.”

  True, Katherine had never intruded into his decisions, never judged him at all. She didn’t presume to know how he should live his life, so why should he think he had that right with her? Killian’s anger, his constant companion for days running, faded into a duller frustration, something remote, and foreign.

  “Are you listening to me?”

  “I am. You’re right.”

  “I know I’m right. You don’t need to tell me that.”

  “Well, then, I’m sorry. I can still say sorry, can’t I?”

  “Yes. I accept your apology.” Katherine sighed, paused. “Oh, God, he wants to talk to me, and he’s going to ask everything.”

  “He’ll never write about us. Not after seeing his own father and sister suffer in that stupid Arroyo scandal.”

  “I think he will.”

  “He’s not a gossip columnist.”

  “Either way, I have to call him back.”

  Killian’s elk, mounted to the wall, was watching him impassively. Who the heck was Killian kidding? Why wouldn’t young Sykes write a story about his affair? It was a scoop for a liberal journalist. And what did he know about Samuel’s intentions or his ethical limits?

  “I lied to his father.” Killian stood up and paced as he talked. “I told Rodney I saw Sam on C Street, that I was there because I was being interviewed by a friend of my daughter’s in our hotel, that she had rented a boardroom there because she knew the owner and could get it for free.”

  “Wow, you said that?”

  “What’s wrong with it?”

  “You’re a bad liar.”

  “He didn’t suspect anything.”

  “Why the hell would this mystery woman interview you in a board room?”

  “Because this fictional woman lives around the corner from the Capitol Hill Hotel, that’s why.”

  “But I don’t live around the corner from the Capitol Hill Hotel, and that fictional woman is me. And why would the curator of manuscripts from the Folger Library want to interview you in the first place?”

  “I don’t bloody well know why she would want to do that. That’s this fictional woman’s problem, not mine, isn’t it?”

  “Come on, Killian.”

  “You interviewed me because my massive knowledge of Shakespeare is public information, and of interest to members of the library.”

  “Then why didn’t I interview you in the Folger? It’s right around the corner from the Court and it’s not like a quiet room there would be any problem.”

  “I don’t know why!”

  “I don’t know if I can say that, Killian.”

  “I’m not asking you to say that, am I?”

  He retook his seat in the armchair. If he wasn’t asking her to lie, then what the heck was he doing repeating all that crap he told Justice Sykes? Merely encouraging her along with a passive-aggressive nudge? He should cut the bullshit. Killian wanted Katherine to cover for him; he wanted her to lie, and lie some more, and lie again! To repeat the same lie, over and over, only better. Work on it, make it real. Killian had rarely wanted anything more than this, yet he couldn’t just ask Katherine to do it outright, not after what she had just said.

  His thoughts turned to Wallace. Justice Kolmann had written a second dissent to accompany Davidson’s, which approached the problem of gun control from another angle entirely. She cited statistics, sociological research, murder rates and accidents. She referenced abundant studies that proved, without a doubt, that handguns killed Americans at an extraordinary rate and thus needed to be regulated on pragmatic grounds. She did not address the wording of the Second Amendment as Davidson had, and refused to engage in the basic textual problem at the root of Wallace. Justice Kolmann argued for the purpose of gun control laws. She wanted a certain result, thought her solution was right and good, and so argued for it. Killian had read her dissent with some sympathy. It was not nice at all that guns killed so many people, but even if her statistics were correct—and he highly doubted that—that didn’t touch the fundamental problem of her approach—namely, when it came to interpreting the law, it did not matter what she wanted. If the law enumerates an individual right, a justice is required to respect that right, even if he or she fundamentally disagrees with it. The Constitution declares Americans have the right to keep and bear arms, but it does not say you have to like it, or agree with it. It only says you can’t touch it, no matter how noble your purpose might be.

  “Killian? Hello?”

  Didn’t Katherine have an equal right to their story? She could tell anyone she wanted about their affair, or she could deny it, that was her right—even though her choice, right now, felt like a loaded gun pointed at his head. Killian was not Justice Davidson or Rosen or Kolmann. He would not resort to fancy wordplay or his personal desire to weasel out of a legal ruling that he didn’t like. He believed in the principle of the individual’s rights, and so he was going to stick by the ruling. You, too, Katherine, have the right to keep and bear arms.

  “You know I’m very worried about the effect of our affair on my work. I don’t want to be publicly embarrassed either. I’m terrified my wife will find out about us. But still, I’m aware, Katherine, this is your decision to make. You were, and are, my equal in our relationship. I hear you on that. And so I really do think it’s up to you to handle Samuel Sykes however you wish. Repeat my bald-faced lie, if you want. Make it better, if you can, or tell him the truth—that you were screwing me in a hotel room, and that it’s something we did every two weeks, and that I loved every second of it, which I did. And if I’m asked in turn by Sam Sykes or anyone else about what you said, well … I guess I’ll first say no comment, as I always do to reporters, but then if I’m forced to speak by subpoena or whatever, I’ll confirm whatever it is you’ve chosen to say. Your exact words, even if that damns me forever.”

  “Really?”

  “Yes. Although I don’t know why I’d be subpoenaed, as there’s no law against adultery. But we’ve been over that, haven’t we?”

  “I don’t want to talk about the law.”

  He crossed his feet on the coffee table. Take that, Pride. It felt good to submit to a correct principle, to allow himself the strength of
what he believed. Lord, he wanted to slip out of this mess unscathed, but if he didn’t, if Katherine couldn’t bring herself to say anything but the truth, or if young Sykes proved a worthy journalist, skillfully interviewing the hotel manager and extracting some damning information about biweekly rentals in the name of Katherine Kirsch, or skipping over to the Folger and chatting with Dr. Frezel, then at least Killian would take solace that he did not go down patronizing or manipulating a woman who deserved his full respect.

  Killian sighed. “So what are you going to tell him?”

  “I don’t know. I guess we’ll just have to wait and see.”

  Killian leaned against the marbled wall by the door of Justice Kolmann’s chambers, clutching a slender manila folder that held an edited version of his dissent in Al-Tounsi v. Shaw. His distilled section was still quite long, and might take a half hour to read from the bench. No matter. He was going to force every journalist and spectator in that room to listen to his vociferous objection to the Court’s granting habeas corpus to terrorists held in Subic Bay. This ruling was front-page news. With it, the United States would be seriously diminished in its ability to fight terror. Those Subic Bay detainees were sly fanatics and manipulators, working in concert with the best bleeding-heart lawyers in the country, hailing from institutes like the Constitutional Rights Center and top Washington law firms. With their newly granted habeas rights, a portion of those bad men would soon be released, and subsequently travel right back to the battlefields of Afghanistan and Iraq, planting roadside bombs, staging vicious assaults and suicide missions against U.S. forces. For all Killian knew, one of the detainees who was going to be released because of today’s grossly irresponsible ruling might eventually set the IED or fire the bullet that would kill his son. And if that was the risk this Court wanted to take, well, then they would darn well have to sit back and listen to Killian berate them from the bench for however long he deemed appropriate. Military families across this nation would certainly understand his resolve. They would appreciate it.

  Sarah Kolmann emerged from her chambers, stopping suddenly before Killian. Her smile wasn’t forced, but it wasn’t wide either. Her skin was pallid and ashen, and she seemed smaller than usual.

  “What are you doing here?”

  “Thought I’d check in. Grab a moment together on our walk over to the Court.”

  Sarah touched his shoulder kindly and walked on. Killian carefully matched his pace to hers.

  “How’s he doing, Sarah?”

  “Not well. I’ve never seen him like this. Did you know we moved him into palliative last night?”

  “Yes, I got your email. Gloria and I are very sorry to hear it.”

  “It’s easier to care for him there, but it’s not good for him mentally. It makes him want to give up. Can you blame him, really? And that look on his face when he rolled into the room.” Sarah shook her head. “Knowing he’s going to die there, that it was a place he’d never leave. He might be sleeping most of the time, and look like a skeleton, but he hasn’t lost his mind, Killian, and that’s just what makes it—”

  Sarah stopped speaking, quickened her pace and clasped her small hands together before her. “I don’t want to talk about this anymore.”

  “You don’t have to.”

  “I don’t know what I’m going to do next week, when our term’s done and I don’t have this place to distract me.”

  “I’ll come visit. Gloria and I aren’t going anywhere for a while.”

  “If it wasn’t for Cathy and Mark, who are both being heroic, I don’t know what I would do.”

  They reached the door of the Conference Room, but paused before entering.

  “I said I didn’t want to talk about it anymore.”

  “No, no.”

  “So stop making me!”

  “My apologies.” Killian frowned at the red carpet fixed to the marble floor. It was near impossible to imagine Jonathan—that lively, robust, playful man—on the verge of death.

  Killian followed Sarah into the Conference Room, and then through another doorway that led them into the Robing Room, a small, oak-paneled chamber with a row of nine adjacent closets and no windows. There was a brass plate on each locker, engraved with a different justice’s name in an antique font. The other seven justices were already there. Several had slipped on their plain black robes and now stood around the star emblazoned in the maroon carpet. Killian and Sarah greeted them quietly. Justice Kolmann opened her locker and removed her pressed robe. It was hard to be certain if she was in real emotional trouble, but he didn’t think so. Sarah’s expression was steady and sure as she fluffed her lengthy jabot, zipped up her robe. Yes, she was okay. She had that stalwart ability to bracket her personal problems and remain fierce at work. Neither the press nor the spectators in the Court Chamber would detect anything amiss.

  The others chatted, but Killian didn’t feel like joining their conversation. Feeling somber now, as he slipped on his robe, Killian thought of Jerusalem’s destroyed Temple, King Solomon’s proud work, with its chambers inside chambers, and the Holy of Holies at its core, accessible only to the highest priest once a year, on the day of atonement, under strenuous circumstances. The Bible described bowls of blood—goat’s and bull’s—to be sprinkled eight times in eight directions, the scattering of glowing coals and incense, all that Old Testament savagery. Sometimes, when Killian was plagued with a heavy mood, the Robing Room reminded him of that inner Holy of Holies, and made him feel like an ancient Judaic priest.

  “So, Rodney,”—Justice Katsakis was speaking—“are you going to read your concurrence from the bench?”

  Everyone turned to hear Rodney’s answer. Crazy or not, Justice Sykes’s concurrence in Al-Tounsi was the most significant work of his career, and would certainly remain so well after his retirement. But Rodney, dressed in his robe, standing quietly on the carpet, just shook his head no.

  “Why not? If I’d written something that bold, I’d sing it out, loud and clear.”

  “The idea speaks best for itself on the printed page.” Rodney spoke curtly, which immediately stopped Talos’s interrogation.

  Bernhard Davidson broke the awkward silence. “Come on, hands.” He was whispering to his fingers, while sitting in the Oxford chair, the room’s only piece of furniture. That chair had been brought into the small room because Davidson was too old to stand for too long. Bernhard struggled to steady his shaking hands and zip up his robe. “Comply, comply …”

  “Do you need any help?” asked Justice Arroyo, who was standing beside him.

  “Yes, please.” Bernhard reclined with a defeated sigh, and let Manny zip up the robe for him. “My fingers today are just not my own.” Bernhard’s voice cracked and rose, and he shook his head in disappointment. He glanced at the others. “I’m not even sure these legs of mine are willing to get me into Court!”

  “We’ll help you if you need it.”

  Joanna’s offer made Killian hang his head. Elyse was the one who had always taken responsibility for aiding Bernhard whenever they were all together as a group. Joanna Bryce and Manny Arroyo seemed poor substitutes. It was good that Justice Van Cleve’s unnecessarily political, legislative, and liberal vote was gone, but how he missed the presence of that fine woman. Maybe it was Jonathan’s impending death, or Sarah’s mood, but now he felt humbled and diminished by the still-fresh shock of Elyse’s sudden passing.

  “In the spirit of Al-Tounsi,” continued Davidson, “my legs are my captors and I’m their enemy combatant. My body is a Subic Bay all its own, and I find myself at this advanced age unable to issue a writ of habeas corpus to get these damn legs to release me.”

  Several justices laughed at Davidson’s bad joke. He pulled himself out of his chair, and grabbed his resting cane. “Well, look at that. I’m not dead yet!”

  “Time.” Charles Eberly tapped his watch.

  The justices gathered themselves on the carpet’s laurel emblem, Davidson refusing help from Joanna or Manny, an
d they shook hands with each other, one by one. After their 36 handshakes, the nine justices exited from the Robing Room through the long crimson curtains, entering the back of the Court Chamber.

  “Oyez! Oyez! Oyez!” The Court Marshal cried, as the justices ascended the mahogany bench before the packed room. Many of these guests had waited outside on First Street since early that morning. It was always a challenge to get seats to the Court in the last week of June, at the end of the term, when the big cases were announced. This was when justices would read portions of their opinions or dissents from the bench for added emphasis. Al-Tounsi v. Shaw was such an important case that some people had camped out overnight for seats.

  Eberly began proceedings, and the first of the day’s three cases was announced. Samuel Sykes was working in the press section, and Killian absorbed whatever information about him that he could garner from his peripheral vision. Young Sykes took notes, whispered something to Lyle Dennison, and scribbled in his little book.

  Every morning for days now Killian’s heart palpitated as he picked up The Washington Post from the 7-Eleven near his house and scoured its pages for any articles under Samuel Sykes’s byline, any mention of his name. So far, there was nothing. But it wasn’t even guaranteed that Samuel would pen his scandalous story for the Post, since he could probably get paid far more for a full exposé as a freelancer for Washingtonian or Vanity Fair. Lord knows Vanity Fair had proven itself willing to dive into Supreme Court gossip. With its liberal leanings, that magazine would no doubt be thrilled to publish a vicious article catching the dreaded Justice Quinn with his pants down, and spinning a couple thousand words on the hypocrisy of his rulings. Every day since his conversation with Katherine, Killian had been tempted to call or email her, asking if she had spoken to Samuel yet and, if so, what she had told him. But Katherine would tell him what she wanted and when. The only respectable thing to do was suffer and wait.