Deadlock (22 page)

“How so?”

“In the last paragraph, Jefferson says America is appealing its cause to the Supreme Judge of the world. Capital S, capital J. And he asserts in the last line that the country is relying on the protection of Divine Providence. Capital D, capital P. No one then, absolutely no one, could have doubted that this was the God of the Bible. Now fast forward to 1980, and the Court holds that public schools cannot post the Ten Commandments. Does that make sense?”

“The development of Establishment Clause jurisprudence, as you know — ”

“Forget the legal jargon. Does it
make sense
?”

“With all due respect, First Amendment law is not jargon. And how can you possibly know if God is weaving anything?”

“I can’t know for certain,” Holden said. “But I’m willing to make you bet.”

“Bet?”

“Friendly, of course. Are you game?”

The hum of the car filled the silence between them. Millie said, “What’s the bet?”

“That God is not going to let you off the hook.”

Millie felt a jab to her insides, as if the car had hit a bump. But it hadn’t. “I don’t want to be on anybody’s hook, thank you. Nor do I wish to be a thread in some cosmic pattern. I just want to . . .”

Silence. What
did
she want? If nothing else, to get back to work. This desert communion was starting to unnerve her.

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1

Millie jerked to consciousness and for a moment did not know where she was. Or the time.

The phone. It rang again.

Her mother’s house, of course. Her head throbbing, Millie scrambled off the sofa — now she remembered falling asleep there last night — and made it to the kitchen by the fourth ring.

“Justice Hollander?”

“Yes?”

“Hold for the president.”

President?

“Hello, Justice Hollander?” She heard the familiar Bostonian accent of the leader of the free world.

“Yes, sir.”

“John Francis.”

She knew that! “Yes, sir.”

“How you doing out there in the Golden State?”

He couldn’t know the half of it. “Fine.”

“Feeling better, are you?”

“Almost as good as new.”

“Great to hear it.”

She sat down to steady her nerves. She knew what was coming next, and felt oddly ambivalent about it. What a time to feel that way!

“I’m going to send you up as my pick for chief justice,” Francis said. “I don’t think that’s a shock to you.”

It wasn’t, but it felt the same. “I am . . . honored, Mr. President.”

“Well, you deserve it. You’ve been rock solid on the Court for ten years, and it’s about time we had a woman in charge of things over there. When will you be coming back to Washington?”

“I don’t really know.”

“All right. We’ll do some prep with you for the hearings, but those will just be going through the motions. You’ll have the usual conservative outrage, but we have the majority on the committee and in the Senate.
No problemo
, as they say down in Mexico.”

Millie closed her eyes. She was talking to the president of the United States. He was telling her she was going to be the chief justice. It was a waking dream.

“You do want the job, don’t you?” Francis added.

God is not going to let you off the hook.

Holden’s words bounced off the walls of her mind. She gritted her teeth against them. “Oh, yes, sir. Of course I do.” That had not changed. This opportunity was the culmination of everything she had worked for. What was changing, though she didn’t yet know how, was
her.
Surely getting back to Washington, back into the swing of things, would settle her down.

“Excellent,” Francis said. “Everything is falling into place nicely. The most important thing is that we keep our slim majority on the Court.”

“Sir, I — ”

“I know, I know. Ethics and all that. That’s why you’re the right person for the job. Now I have to go do a little soft shoe for the Sultan of Brunei. Nice talking to you, Chief. Congratulations.”

He hung up before she could say thank you.

She sat in amazed silence until the phone signal angrily told her to hang up. It had finally happened. The big dream she had dared to dream back in law school.
Chief Justice Millicent Mannings Hollander.

Her body suddenly felt renewed. No miracle healing here, just a heightened sense of physical well-being.

She made coffee. It was nearly nine, and Jack Holden would be coming over soon to drive her to the hospital.

She had just stirred some cream into her coffee when the phone rang again. The president calling her back?

“Justice Hollander?”

“Yes?”

“Dr. Weinstein.” His voice was low, and Millie’s entire body tensed. “Are you coming up here?”

“Yes, what is it?”

“I’m so sorry,” he said.

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2

As she passed through the rail at the front of the courtroom, Charlene saw Beau Winsor talking to someone who hadn’t been in the courtroom before. At first she thought he must be an associate from Winsor & Grimes, but then the face suddenly became familiar. It wasn’t quite the same as it looked on TV.

Winsor saw Charlene and motioned her over. “Charlene, do you know Larry Graebner?”

Graebner smiled and stuck out his hand. Charlene shook it.

Lawrence I. Graebner. Here. She knew he had been advising on this case. But she never thought he would make an appearance. Why would he? He wasn’t a trial lawyer. He was the brain. And if Charlene prevailed, he would be the counsel on appeal.

Why was he here today?

“I hear you’ve been giving Beau all he can handle,” Graebner said with the ribbing lawyers sometimes threw at their opponents.

“I hope so,” Charlene said.

Winsor said nothing. Charlene could almost smell the power, mixed with a generous dose of testosterone. They were two of the keenest legal minds in the country. And they were against her.

When Judge Lewis entered the courtroom and called the case, he smiled faintly at Graebner. And then it hit her. Lewis and Graebner had been classmates at Yale.

“Is the defense ready to proceed?” Lewis asked.

“We are, Your Honor,” Winsor said. “May I state for the record the appearance of Lawrence I. Graebner, who will be arguing the motion this morning.”

Motion? Charlene had not received anything in writing.

“Very well,” Lewis said. “It’s a privilege to have you here, Professor Graebner.”

“I thank the court,” Graebner said.

Charlene watched the judge’s face closely, searching for bias.

“We are moving for a directed verdict,” Graebner said.

Was that all? Motions for directed verdict were
pro forma,
nothing else. The defense always made such motions at the close of the plaintiff’s case. They were hardly ever granted. The moving party would have to show that, taking the evidence and all reasonable inferences in the light most favorable to the opposing party, a reasonable jury could not reach a verdict favorable to the opponent.

In other words, looking at everything Charlene had presented in the best possible light, Judge Lewis would have to rule that the jury could not possibly rule in her favor. It was a virtually impossible burden to meet.

But then again, Larry Graebner was arguing. He wouldn’t have flown down here unless he had some reason to believe the motion would be granted.

“As we all know,” Graebner continued, “motions for directed verdict have a very heavy burden to overcome. And that well should be, for if it were easy the right to a trial by jury would be undermined.”

Pausing, Graebner slipped his thumbs into his vest pockets. It was the homey pose of the country lawyer, but Graebner, speaking without notes, did it naturally.

“On the other hand, Your Honor, the proper separation of powers is likewise undermined when a jury is charged to decide that which is not authorized by law. In this case, a law duly enacted by the legislature of this state. Such an occurrence would be the death knell of the little experiment we call democracy.”

He was the Yale law professor now, the classroom pundit. Judge Lewis appeared to be entranced by his classmate.

Classmate.
Charlene stood up. “Your Honor . . .”

Every head, it seemed, whipped her way, every eye throwing darts.

“Miss Moore,” Judge Lewis snapped, “you will have your chance.”

“Your Honor, I have a small point to make before we take up more of the court’s time.”

“I would like to finish,” Graebner said, his voiced tinged with professional impatience.

“Your Honor,” Charlene said, “would it not be proper to recuse yourself from this?”

Charlene thought she saw red blotches break out on Lewis’s face. “Recuse myself? What possible basis do you have for this objection?”

“With all due respect,” Charlene said, “Professor Graebner and you were classmates at Yale. Might there be the appearance of bias in this?”

“Your request is denied,” Lewis said. “I am able to weigh the merits of this argument in an objective fashion, and your attempt to influence the court is duly noted for the record.”

“I have the right to — ”

“Sit down, Miss Moore. You may address the court when Mr. Graebner is finished speaking.”

What have you done this time, Charlene? Alienated the judge before he has ruled on the motion. Great move.

Graebner made a grand motion of gratitude to the judge. “I thank the court. I’m sure Miss Moore meant no offense.”

By which, of course, he meant she did.

“As I was saying, our democratic form of government must never be undermined by the usurpation of power by any branch against another. What I fear happening here, Your Honor, is that very thing.

“If we take all of the evidence in the light most favorable to the plaintiff, what have we got? A young girl enters a family planning facility seeking an abortion. The clinic, which has been in operation many years, follows to the letter the informed consent law that has been promulgated by the legislature.”

“Isn’t that the issue here?” Lewis said. “Whether the clinic indeed followed the letter and the spirit of the law?”

“No indeed, Your Honor. The spirit of the law is not for you or a jury to decide. The legislature alone must define the law, within the text. It has done so, in quite specific terms. It provided a document to the plaintiff, which the plaintiff signed.”

“What about duress, or incompetence?” Lewis said.

“There is nothing in the statute about any such matters,” Graebner said. “Indeed, if one looks at the legislative history, the chief concern of the legislators was to keep those sorts of matters from ever becoming an issue. It made the text of the statute clear. Nor does the history say anything about mental health concerns. In short, Your Honor, this case never should have reached this stage. For a cause of action such as this, the legislature may amend the statute. But a trial court may not.”

Graebner waited for the court to ask him a question. Lewis seemed deep in thought. Then he said, “Thank you, Mr. Graebner. Miss Moore?”

“I hardly know where to begin,” Charlene said. “I believe we have presented enough evidence for the jury to consider this case. Professor Graebner talks about the right to a trial by jury, but in the next breath seeks to take that away from my client.”

“But your client,” said the judge, “must have a basis upon which to make this claim.”

Then why had the judge allowed her to get to this point? This matter should have been considered before trial. Or had Winsor and Graebner been waiting to sandbag her?

“The basis is the common sense application of the will of the legislature,” Charlene said. “It is clear they want all women who are about to make one of the most important decisions of their lives to have all the information they need. That would include, naturally, an inquiry into mental health history.”

Lewis shook his head. “But as Professor Graebner says, that is not in the statute. Does this court have the power to give the jury something that the legislature has decided, to this point at least, it should not consider?”