Brooks-Lotello Collection

by Ronald S. Barak

  Nishimura grimaced. “Not sure I’m liking this, but I’d love to hire you to paint my home for $100. More to the point, what kind of benefit would the court have to award me for these injuries?”

  “In the first case, the court could order me to pay you the amount of money it would cost to repaint your home. In the second case, the court could order me to pay your medical expenses, and perhaps a bonus for your pain and suffering. In the third case, the court could order me to stop calling you a crook, and to pay you some amount of money for the injury to your reputation.”

  “Assuming I have a reputation to be injured,” Nishimura smiled. “But what kind of injury has Congress suffered in this case? And what kind of relief could a court grant to compensate it for that injury?”

  “The law requires Congress to show a particular kind of injury—loss or reduction of the right to vote on some matter on which it normally does vote. The lower court ruled that the 28th Amendment eliminated Congress’s right to vote on a number of such matters, including the salaries and other benefits of members of Congress. The relief Congress is seeking is a declaration that the 28th Amendment is unconstitutional and therefore invalid.”

  Clear as mud, Nishimura thought. “Perfect, Chris. We could talk about this all day, but I see that Klein’s about to begin her argument to the Court.”

  * * *

  Cassie gasped, fighting to catch her breath, her heart pounding. The note she’d just read was terrifying.

  She noticed her backpack lying on the floor next to the table. She put it up on the table and opened it. She exhaled in relief, but the relief was short-lived.

  Her diabetic supplies and equipment were there, but it included only one nearly empty vial of insulin. Barely enough to last her a single day. Maybe a bit longer if she stretched it.

  And her pump. There it was. Thank God. But why had someone removed it from my body? And placed it in my backpack? She lifted her top and looked at the red welt on her stomach where the pump’s mini subcutaneous infusion line had been torn away.

  She cleaned the tiny opening in her stomach with an alcohol swab. It was not the small wound that was dangerous. But not knowing her situation, she had to minimize the chance of infection. Her doctors were always reminding her that infections could be very serious, especially for diabetics.

  Cassie replaced the damaged infusion set with a fresh one—the last one she had—and reattached it to her body. Problem solved. For now.

  CHAPTER 15

  Tuesday, May 6, 10:38 am

  BROOKS’S EYES followed Klein to the podium. She looked sure of herself. He hoped she genuinely understood the role she was about to play.

  His mind drifted back to their prep session two weeks ago.

  “Tell me, Ms. Klein”—she was Leah off the clock, but never on it—“why are we appealing the lower court’s decision that Congress has standing?”

  “Because if Congress doesn’t have standing, the case is over. We win.”

  Brooks did not look pleased.

  “Am I missing something, Your Honor?”

  “Have you not been listening to me? Do you think I’m a potted plant, Ms. Klein, unworthy of your full attention? I’ll ask you again. Please listen this time. Why are we appealing the standing decision when the overall ruling of the court below was in our favor?” He held her eyes with his.

  She stood her ground. He gave her that. “Same answer, Judge. I don’t get it. Sorry.”

  “You just told me why you are appealing standing. I didn’t ask you about that. Do you not get it, Ms. Klein? You are the sacrificial lamb here.”

  She said nothing. Her eyes dropped.

  He hated to be so tough.

  He tried again. “Does Congress have standing here, Ms. Klein?”

  There were two conflicting lines of applicable cases. “Doesn’t it ultimately depend, Your Honor, on which line of the relevant cases a majority of the Justices choose to follow?”

  “It does not, Ms. Klein. Indeed, a majority of the Justices will choose whichever line of cases suits their purpose.” He had her attention now, but then he thought he’d had it before. He continued. “Whether Congress will be found to have standing will depend solely on whether five or more Justices want this to be the time and place when the Supreme Court of the United States will determine the meaning of Article V of the U. S. Constitution. You will be the vehicle, Ms. Klein, through which they will signal their desire. We will need to listen very carefully. But it will depend little on what you actually say to them.”

  Brooks wondered if Klein fully appreciated the gravity of what was about to hit her.

  * * *

  “B.C.” Before . . . Cassie, Hirschfeld thought. He had just given new meaning to those letters. What my mind has been reduced to, playing anagrams, talking to myself. Cassie was both the reason he couldn’t concentrate, and the reason why he had to.

  Before Cassie, Hirschfeld had every intention of voting to uphold the amendment. “Checks and balances,” one of the fundamental principles of the Constitution. Hirschfeld had no doubt the country’s executive and legislative branches were impaired. If the governed feel the same, then the government must be “checked,” meaning stopped. And “balanced,” meaning corrected.

  He refused to believe that the framers of the Constitution intended to give the government a veto over the right of the governed to direct their representatives. The only question is who speaks for the governed in a country whose numbers have swelled to more than 300 million?

  If not 50,000 representative delegates spanning the country with no ax to grind other than improving the political system, then how many? 51,000? 151,000? 151 million? Certainly not all 300 million.

  How could a constitutional convention of millions possibly be convened? The key had to be some form of fair and reasonable representation.

  Hirschfeld felt that the members of Congress had to be constrained. Their job was to uphold the will of the people by proposing and enacting legislation to improve the country, not by filing lawsuits to serve their own personal interests.

  But Cassie’s circumstances complicated matters—although he refused to trivialize his own flesh and blood as a complication. On the one hand, how could he possibly place anything or anyone ahead of Cassie? On the other hand, how could he genuinely bring himself to abandon his true judicial beliefs to vote against the amendment for personal reasons—to save Cassie—as the kidnappers were insisting that he do?

  He prayed for his baby girl, who had done nothing to deserve any of this. And for himself. And for the country. And for the noon recess.

  * * *

  Cassie recalled her mom often saying to her “Be careful what you wish for.” Until now, Cassie hadn’t been sure what that meant. Now she understood. She’d worked so hard to convince her parents to let her walk on her own between the driving range and school. And to become a great golfer. And to show the world—and herself—that her diabetes didn’t mean she couldn’t still be great. And normal. Now some creep had come along and spoiled it.

  I’m gonna be grounded for the next ten years. If I ever get out of here.

  As frightened as she was, she was also frustrated.

  And angry.

  Very angry.

  Sometimes she played her best golf when she was . . . angry. Whoever did this to me better watch out.

  CHAPTER 16

  Tuesday, May 6, 10:20 am

  BROOKS THOUGHT DEEPLY about these things. Even if others did not. At least not many others. His mind wandered back to his first discussion with Klein about Congress’s suit against NoPoli.

  “Ms. Klein, you understand, of course, that suing someone is not an automatic. It requires ‘standing,’ the right to sue because of damage suffered. But isn’t standing generally pretty easy to establish? What makes you think, then, that the Supreme Court will conclude that Congress lacks standing to sue NoPoli?”

  “You know the answer to that as well as I do, Your Honor. Congress’s job is to m
ake laws that serve our country, not to run around suing people. The law only permits Congress to sue someone that impairs or ‘nullifies’ its ability to do its job, to make some particular law.”

  Brooks had put Klein through her paces. She knew the black- letter written law, but would that be enough?

  As Brooks had feared, however, any hope that Klein would be permitted to get through her presentation unscathed was quickly dashed. Associate Justice Jane Taser was the first to strike.

  “If Smith physically breaks Jones’s jaw, Jones is injured. If Smith burgles Jones’s home and steals his art collection, Jones is injured. If Smith falsely and publicly accuses Jones of some reprehensible act, Jones’s reputation is injured. In each of these instances, an award of money damages by a court of law will compensate Jones for his injury.

  “But what injury, pray tell us, Ms. Klein, does the 28th Amendment visit upon Congress’s responsibility to do its job? To pass laws that drive our nation?”

  Brooks hoped his smile went unnoticed. Not one to tolerate any nonsense or bide her tongue, Taser was deadly serious. Her opinions were seldom in doubt. Or soft-spoken. Passionately anti-government, there was no question that Taser wanted to uphold the 28th Amendment.

  Brooks imagined that Taser believed the easiest and safest route to achieving that end would be to deny Congress’s standing to challenge the amendment. Exactly what NoPoli also wanted. Superficially appearing to challenge Klein, Taser was instead actually seeking to use NoPoli’s anti-government platform to advance her own similar platform.

  “My point precisely, Justice Taser,” Klein replied. “The amendment only prevents corruption and abuse by individual members of Congress. In no way does it impair Congress’s job to enact laws that serve the country. To the contrary, by reducing present-day political corruption and dysfunction, the amendment in point of fact helps Congress to do its job. Congress therefore lacks nullification standing to judicially challenge the amendment.”

  Justice Taser radiated a look of validation. Sitting next to her on the dais, Brooks could see that Associate Justice José Gaviota did not intend to let this softball exchange go unchallenged.

  * * *

  Looking at the clock on her insulin pump, Cassie realized it was a little over three hours since she had been drugged. Unless, of course, it was three hours plus a day. Or Two. She had no idea how long she had been unconscious. A little more clear-headed, Cassie began what her biology teacher would have referred to as a field survey of her environment.

  First, her pump. While the home screen in the pump displayed only the time, Cassie had a vague recollection that some other screen somewhere else in the pump also displayed the date. The device was nothing more than a very small computer. Cassie scrolled through its home screen. She had to drill down two levels, but, sure enough, one of the sub-menu features on the Utilities screen was labeled “Time/Date.”

  She’d never had any reason to go to that screen before, but there it was. The date. It was still today. The day I was kidnapped. So I haven’t been detached from my pump all that long. No lengthy sugar highs. Yet.

  Encouraged that she had not been unconscious for days on end, Cassie now turned her scrutiny to the room that imprisoned her. A chest of drawers stood against the wall near the bed where she now sat. A makeshift bathroom with a toilet and shower had been built in the corner. Across the room, a table and some shelving rested atop a small refrigerator. A microwave and some food items filled the shelves.

  She walked over and opened one of the chest drawers. And then the other two. In each she saw a bunch of clothes. She spread them on the bed. There was a packet of underwear, a few pairs of sweat socks, some T-shirts and sweat pants, and a hooded sweat jacket. She shuddered at the long-term implication of all this clothing and defiantly hurled them back in the drawers.

  She was thirsty. Had to pee. Badly. Both signs that her blood sugar was climbing. Probably the result of being stressed out. She unzipped her test kit. Inserted a fresh pin prick needle into the plunger. Placed a test strip into the meter. Jabbed one of her fingers with the plunger needle. Placed a drop of blood on the test strip. And waited.

  * * *

  Brooks thought about Taser and Gaviota, both conservatives, but from opposite ends of the spectrum. Taser’s anti-government views colored her against virtually every possible expansion of governmental power, in this instance claiming that the Constitution can’t be amended without Congress’s participation. In contrast, Gaviota’s disposition caused him to support all traditional schools of thought, including the conventional wisdom that Article V sets forth the only two ways the Constitution can be amended.

  Brooks was right. He didn’t have long to wait for Justice Gaviota to spring into action on the heels of the Taser-Klein exchange. “Ms. Klein,” asked Gaviota, “does not the adoption of the 28th Amendment without Congress’s participation constitute nullification injury?”

  Klein was quick to answer. “No Justice Gaviota, respectfully, it does not. Nullification injury requires impairment of Congress’s exclusive responsibility to run the legislative branch of our federal government. But here Congress is claiming that the 28th Amendment conflicts with Article V. The enactment of Article V was the sole province and affair of our Constitutional framers. Not Congress.

  “Even if, arguably, there is some inconsistency between the 28th Amendment and Article V, that occurs solely at the constitutional level. It does not in any way impede Congress in the performance of its lawmaking duties at the legislative level. There is no nullification injury triggered by the enactment of the 28th Amendment.”

  “An interesting thesis, Ms. Klein. But what about the fact that the 28th Amendment reduces the salary and benefits of the members of Congress previously enacted by Congress? Doesn’t that constitute nullification injury?”

  “Again, Justice Gaviota, I submit not. Under Coleman v. Miller and Raines v. Bird, two cases previously decided by this Supreme Court, the doctrine of nullification injury was established to prevent impairment of lawmaking undertaken to serve the country, not members of Congress. Reducing a Congressional benefit simply does not rise to the level of nullification injury.”

  “Perhaps so,” Gaviota persisted, “but the 28th Amendment contains a provision that prohibits future lawmaking inconsistent with the amendment? Doesn’t that limit what Congress might otherwise seek to enact somewhere down the road beyond the scope of salaries and benefits for members of Congress. And therefore constitute nullification injury for that reason? For example, what if Congress wishes to revisit what is being referred to as the anti-welfare provision of the amendment?”

  “In both the Coleman and Raines nullification injury cases, the Supreme Court required prior legislative action to find nullification injury. Until some Congressional action is actually undertaken by Congress, there can be no claim of nullification injury.

  “I would also point out that no welfare recipient who makes a good faith effort to find work consistent with his capabilities is denied any welfare coverage under the amendment. This provision is in substance directed solely at another Congressional perk, trading welfare entitlements for votes. My answer to your second question a moment ago applies to this question as well. Frankly, the entirety of the 28th Amendment is a rollback of Congressional perks that does not support nullification injury standing.”

  Gaviota seemed to be finished. Brooks was surprised that he let Klein off so easily. However, that did not mean he agreed with Klein. Or that other Justices would let her off as easily. Or as graciously.

  * * *

  Associate Justice Arnold Hirschfeld, Brooks’ classmate and longtime friend, cleared his throat, as if he were nervous. Brooks wondered why an old pro like Hirschfeld would be nervous. No matter, Hirschfeld was always mild-mannered and in favor of government accountability. Brooks expected no trouble from him.

  Hirschfeld seized the figurative baton from Gaviota. “Ms. Klein, are you intentionally ignoring the second part of Justic
e Gaviota’s original question?”

  Klein looked taken aback. Brooks couldn’t blame her. It wasn’t likely so much Hirschfeld’s question, but rather his aggressive tone. Brooks sensed a stirring in the gallery behind him. The spectators obviously had not missed the hostility either.

  “No sir,” Klein said, “not intentionally. Justice Hirschfeld, would you please be kind enough to repeat the second part of Justice Gaviota’s question for me?”

  “In this Court, Ms. Klein, lawyers don’t ask the questions. The right to ask questions here is generally reserved to the Justices. However, since I believe this is your first appearance in this Court, I will cut you some slack and restate Justice Gaviota’s question for you. The effect of the 28th Amendment is to reverse or reduce certain Congressional benefits previously enacted by Congress itself. For example, compensation levels and benefits Congress previously granted to its members. With the ratification of our President, I might add. Doesn’t the denial or reduction of those Congressionally enacted prior benefits constitute nullification injury? And if I may insert one question of my own, cannot this Court properly repair that injury by finding the 28th Amendment to violate Article V? Thus fortifying Congress’s standing to sue?”

  Brooks was no longer merely surprised. He was stunned. In all the years he had known Hirschfeld, he’d never seen him exhibit such rudeness.

  Without skipping a beat, however, Klein politely responded. “My apologies, Justice Hirschfeld. I meant no disrespect. As you know, the principle of nullification injury is intended to preclude impairment of voting action. Not benefits. I believe that distinction offers us some guidance in addressing the first of your questions. You are correct that Congress’s prior legislative grant of various perks to its members might seem to trigger nullification injury here. However, I respectfully submit that creating self-serving benefits merely for its members and not the country at large was never intended to—and does not—fall within the protective ambit of nullification injury. Moreover, I—”