While Justice Sleeps

by Stacey Abrams

  Bringman went silent, and Justice Lindenbaum interjected, “Are you certain this is a question subject to judicial review?”

  Before Avery could respond, Bringman recovered. “More importantly, is a resignation a question subject to this Court’s review? Why shouldn’t this matter be in front of a probate judge?”

  The barrage of questions from Bringman met with appreciative nods from two others on the bench. Two more votes she wouldn’t get. The shiver of apprehension morphed into a cloaked shudder. “The probate courts are ill-equipped to address the complexity of this issue, Justice Bringman. The lower courts agreed and promptly transmitted the complaint to this body.”

  “Maybe they sped it through because they understood the weakness of your contention. And the paucity of your evidence.” He thumbed through a ream of pages. “Special Agent Robert Lee of the Federal Bureau of Investigation states that your mother was held hostage and rescued on Monday.”

  “Correct.”

  “This is your proof of coercion?”

  “Yes, Justice Bringman.”

  “Do you have evidence that President Stokes somehow participated in the abduction of your mother or in her incarceration?”

  Of course she didn’t, but she couldn’t say that so plainly. “The appropriate standard is not who coerced me, but whether I was indeed coerced. Agent Lee’s affidavit clearly states that the man holding my mother hostage was an employee of Major Will Vance, liaison to the president.”

  “Which proves,” chimed in Justice Newell, “only that Major Vance should improve his hiring practices. Can you demonstrate active involvement by President Stokes? Yes or no?”

  Avery hesitated, but found no alternative. “No. I cannot demonstrate active involvement by President Stokes. However—”

  “I fail to see why his acceptance of the resignation should be voided. He did not act against the public’s interest or Justice Wynn’s interest. You did.”

  “I had no choice.”

  “Did I understand you to say you had direct communications with an agent of the FBI?” The query shot out from Justice Hodgson, whose stern demeanor spoke volumes. “If he knew where to find your mother, I fail to comprehend why you couldn’t simply delay tendering the resignation. An element of coercion is the well-founded belief that your actions are required to avoid the threatened consequence.”

  “I believed my mother was in danger. I believed I had to attend that press conference.” Avery met the justice’s dubious gaze. Anxiously, she clutched at the lectern, wondering if she’d made the wrong call. “Agent Lee promised to do his best. I did mine.”

  Apparently mollified, Justice Hodgson subsided, and Justice Gardner moved in to grill her: “Let’s set aside the coercion for a moment. I am more interested in your assertion that the submission of resignation winds its way to a constitutional question. Assuming, arguendo, that this Court has original jurisdiction to act.”

  Several rounds of arguments with Noah had prepared her for this one. Her thudding pulse slowed, and Avery answered, “The question at hand is the constitutionality of removing a Supreme Court justice absent his consent. Jurisdiction for all cases in law and equity arise under the Constitution.”

  Warming up, she said, “Moreover, the Twenty-Fifth Amendment addresses the issue of how to handle succession in office in the event of incapacitation of a president. However, the Constitution remains silent on the incapacitation of any other constitutional officer, including those who hold lifetime appointments. The Constitution does not contemplate the ability of a third party to unilaterally decide the issue of removing a Supreme Court justice from his seat. To the contrary, the country chose to have the Constitution remain mute on the issue.”

  “But the Framers could not have anticipated the medical machinery of the twenty-first century in 1787,” Justice Gardner retorted.

  “The voters in 1967 could have. The Twenty-Fifth Amendment goes into great detail to identify how to treat the incapacity of the president. Not his or her death, but simply the long-term inability to perform the duties of the job that lasts only four years at a time, let alone a lifetime appointment.”

  “So you’re asserting that even absent coercion, your resignation is invalid.”

  “Yes, Justice Gardner. I am.” Her argument was exactly the opposite of the one she’d have made a week ago, but that was before she discovered the president was a terrorist. “I lack the ability to arbitrarily participate in the removal of a Supreme Court justice from his seat. The president’s action merely continues my unconstitutional act and, therefore, should be nullified. If I never could resign him without his consent, then there cannot be an open seat to fill.”

  Her assertion opened the floodgates, and the inquisition took on a new fervor. Except from the Chief. She sat quietly, her silence uncustomary and noted by the regular Supreme Court reporters. No inquiries about political questions or standing or coercion or guardianship rights. Not a word until Avery wound down a riposte to Justice Lawrence-Hardy.

  Then the Chief spoke.

  “So, Ms. Keene, under no circumstances, in your view of the world, could a legal guardian resign on behalf of a person holding a lifetime appointment? We’ll simply have to expand the Court each time one of my colleagues falls ill without signing a resignation letter first?”

  Avery had waited for the pitch, and she took a mental step back. And swung. “I wrote that letter of resignation. My argument is that for the resignation to be valid, it would have to be consistent with wishes expressed by the holder of office before the illness.” She locked eyes with the Chief. “Otherwise, the resignation is meaningless if it is not affirmatively in the person’s best interest. I think I should reserve the balance of my time for rebuttal.”

  “Thank you, Ms. Keene.” Avery shifted away from the lectern as the Chief said, “Mr. Ralston, we’ll hear from you.”

  He thanked the Court and launched his first salvo: “I’d like to begin by addressing Justice Bringman’s initial query. There is no jurisdiction here. Try as Ms. Keene might to link her motion to the Twenty-Fifth Amendment, the chain is too short. As Ms. Keene’s attorney argued so eloquently in his brief before the probate court of the District of Columbia, she alone is charged with acting in Justice Wynn’s best interest. While that case is still pending, the immediate actions taken by Ms. Keene are consistent with his assertion. It is her responsibility to assess whether Justice Wynn’s wishes are served by hamstringing the activities of this Court by leaving him inert to its operations but occupying its ninth seat.”

  As he intended, all eyes swung to the empty chair. “It seems to us that the remedy available to Ms. Keene is that of acceptance. She made a choice, horrible as it was, and it achieved her purposes. Mrs. Keene is safe. Justice Wynn is safe. The Supreme Court is now free to accept a functioning member of the body, and President Stokes stands at the ready to act.”

  He fixed the bench with a steely gaze. “In less legal terms, what’s done is done.”

  FIFTY-TWO

  For the next fifteen minutes, the solicitor general earned his place in history. He thrust and parried with four justices certain that their own seats might be next. With careful, precise answers, he eviscerated Avery’s constitutional argument, laying bare the glaring problem of her petition.

  “The law is made by the Congress, acting for the people. Ms. Keene failed to highlight any statute or operation of law that accords her the right to come to this body for remedy. She acted in concert with her assessment of Justice Wynn’s best interest, and she now seeks to repent that act. This is not the proper forum. A house of worship is.”

  The Chief leaned in a degree. “Is that a point of law, Mr. Ralston?”

  The solicitor general cleared his throat. “Hyperbole, Madam Chief Justice. What I am saying is that this is not a federal matter. It is not a question for this Court or for any other. The right of a
guardian to act on behalf of a ward is settled law. The prerogative of the president to accept resignations is also settled law, opined upon by the subject of this proceeding, Justice Howard Wynn. This unusual circumstance does not pose a nexus where the Court should intervene.” The red light flickered, precisely on time.

  The Chief spoke: “Thank you, Mr. Ralston. Ms. Keene, you have five minutes remaining.”

  “Thank you, Madam Chief Justice.” She paused, vibrantly aware of the passage of time, and the rules she was about to break. The empty seat studied her in turn, demanding that she act. For him.

  “With his incapacity imminent, Justice Wynn searched for a cure that would preserve the life of his estranged son, who had inherited Boursin’s syndrome from his father. Then Justice Wynn took great pains to express his wishes to me. He entrusted his conferring of his power of attorney to Chief Justice Roseborough. He hid away his living will beneath the childhood bed of that estranged son, an estrangement he broke to ensure that I would find his testament. He updated his final will and testament with codicils anticipating what might occur should he not be available to explain what he had learned.

  “In the process of preparing for his own demise, Justice Wynn discovered a secret. A dire, epic secret: that our government had committed atrocities in the name of national security. He found allies who had proof of our nation’s complicity in grisly experiments an ocean away. When he realized that his life was in jeopardy, he attempted to pass me a message, through his nurse, Mrs. Jamie Lewis. Within hours of delivering this message, Nurse Lewis was shot to death in her home.”

  Avery paused.

  “After I received guardianship, I was physically attacked, beaten, and shot at, first at Justice Wynn’s home and then near his cabin in Georgia. An employee of the Department of Homeland Security, Dr. Betty Papaleo of the Science and Technology Directorate, who uncovered proof of covert financial transactions between DHS and the laboratory they hired, attempted to meet with me, and yet she went missing, along with her husband. As did the lead scientist on what became known as the Tigris Project. Marcus Phillips, the man who kidnapped my mother, died trying to destroy evidence of this secret.

  “The common link between these acts is information I could not submit in probate court. Information that ties Major Will Vance, who sits in this courtroom now, to U.S. government funds used to support illegal research into biogenetic weapons that will target and kill Muslims, including a video recording of his witness to these experiments.”

  Avery paused again, making eye contact with each of the eight justices. It was now or never. “Major Vance received his orders directly from the president of the United States.”

  The ripple of gasps crashed around her, but Avery refused to stop. The white light switched abruptly to red, and the microphone lost power. So she pitched her voice louder to reach every section of the room: “I have memos and financial records proving the United States conspired to conduct research not allowed by American law. I also have sworn affidavits attesting to the authenticity of these documents from Dr. Indira Srinivasan and Mr. Nigel Cooper. Lastly, I have documentary evidence of the experiments performed.”

  The acoustics carried her accusations to the rafters of the vaulted ceiling. The clerk and a dozen reporters would record every word, even the ones later stricken. Above demands from the solicitor general and furious threats from Justice Estrada, she persevered. “This president should not be allowed to threaten any citizen into action to hide his crimes. If he can pervert his power to threaten Justice Wynn, what is to stop him from doing the same to you?”

  For the first time since leaving the district court, Chief Roseborough reached for the ceremonial gavel at her elbow. “Order!”

  Avery’s red light blinked furiously, and members of the Secret Service began moving toward the lectern. At the Chief’s signal, a U.S. marshal blocked their passage. The thud of the gavel finally penetrated the din.

  The Chief gave Avery a long, narrow look, one captured for posterity by a sketch artist employed by the Post. Later, a close observer would note the distant glimmer of pride. “Ms. Keene, you are out of order. Your time has elapsed. Please be seated.” She turned to the clerk. “The case is submitted. President Stokes, Mr. Ralston, Ms. Keene, I will see you in my chambers. Dr. Srinivasan and Mr. Cooper, you come along as well. Marshal, I no longer see Major Vance in the Court. Please locate him immediately.”

  * * *

  —

  “This hearing is a farce,” President Stokes exploded as soon as the door shut behind them. He’d been summoned to the principal’s office—a president of the United States. This would not stand. But even as he sputtered, enraged, he understood the gravity of Ms. Keene’s play. Whether the accusations were believed or not, his dreams of reelection had been shattered. Lasker-Bauer, indeed. The canny devil Wynn had tricked him. Wynn was one of the bishops that would die.

  But he would not be denied his revenge. “I call your judgment into question, Roseborough. Permitting this tripe in the U.S. Supreme Court. The Senate will certainly be investigating your fitness to serve.”

  “That is your prerogative, Mr. President,” she responded disinterestedly. “Are you denying Ms. Keene’s accusations?”

  “I won’t dignify them with a response.” He inclined his head imperiously. The training from too many lawyers had taught him the drill.

  The solicitor general stepped forward, astonishment shifting into damage control. Whatever the son of a bitch had done, exposing his crimes in open court had to break some law, even if he could not name it offhand. “If I may, Madam Chief, we should have the Secret Service and the FBI in here now. Ms. Keene should be detained until we have reviewed this information. And I recommend an investigation into her reckless conduct. If she has participated in obstruction of justice, action should be taken.”

  “I agree.” Chief Roseborough depressed the button that summoned the Court police, ignoring Avery’s intake of breath.

  Avery brandished the authenticated documents and the drive. “Chief, I have proof.”

  “Which you should have turned over to the proper authorities.” Chief Roseborough gave her a steady look. “If what you say is true, you should know better, Avery. The Court isn’t a playground.”

  Before Avery could protest, the door opened behind her. The occupants of the chamber turned as five burly men entered, gunmetal glinting dully at their hips. Agent Lee waited behind them with more agents at the ready.

  The Speaker and the majority leader had squeezed behind them, nearly out of sight. On his phone, the majority leader hastily typed out a message to his chief of staff. Senate hearings into the Tigris Project and the possible impeachment of President Brandon Stokes would commence tomorrow. Subpoenas would be drafted and start circulating within hours.

  His press conference announcing the extraordinary event would convene on the steps of Capitol Hill in forty-five minutes, which would allow sound trucks time to set up and secure satellite feeds. A camera would be positioned behind him, showing his vantage point of a fallen White House. Thoughts of a late entry into the race for president fleetingly crossed his mind until he realized that a scandal this salacious would earn him a supermajority and nearly unfettered power. LBJ’s legacy as master of the Senate would become a footnote if he played his cards right.

  His companion, the Speaker of the House, not to be outdone, had already convened the Democratic members of the House Committee on Intelligence for a meeting in his office in thirty minutes. Congressional aides had been instructed to locate their members and have them in a caucus meeting in an hour and a half. By the close of business, his members would be scattered across the major networks and hurried into recording studios to tape the commercials that would simultaneously scare the bejesus out of every American citizen and secure the millions to fill the DCCC coffers for the coming elections.

  Because he understood
the vagaries of the human condition, he also scheduled a clandestine meeting with the investigator he’d hired to do opposition research on the minority leader of the House. The likely surrogate for a fallen Stokes, the telegenic young woman who had breached her party’s power structure and taken on the mantle, would be a formidable opponent in the autumn elections. Representative Carolyn Hall had been a pilot in the Air Force and had faced court-martial for revealing misconduct in her squadron. She’d emerged a folk hero, and if she played her cards right, she could parlay this moment into her political triumph and challenge Stokes for the presidency.

  Filling the sudden silence, President Stokes pointed at an FBI agent and ordered, “Place Ms. Keene under arrest.”

  One of the armed men asked, “Sir?”

  “I am the commander in chief. Arrest her!” He pointed at Avery and wished, for the first time, that he had gone to law school.

  Agent Lee shouldered his way forward to the chief justice’s desk. “Chief Roseborough, I’ve just spoken with the director. We’ve been instructed to detain Ms. Keene. And President Stokes, I also have a warrant for your arrest.”

  “On what grounds?” Stokes growled.

  “We received evidence that you attempted to kill Justice Wynn. A pill bottle containing trace amounts of an unknown chemical was turned over to my office. This chemical was matched to the only other sample we’ve seen in this country—Justice Wynn’s blood tests. On my orders, the FBI crime lab ran the prints on the bottle, and there are two sets. His and yours. I don’t know how you managed it, but right now, you are under arrest for attempted murder.”

  “I did not touch him or any pill bottle!” In a flash, the strange moment with Howard Wynn at the graduation replayed in Stokes’s mind. Wynn had shaken his hand awkwardly and grinned, then leaned toward him and whispered, “Checkmate, Stokes.” Goddamn it.