Supreme Ambitions (22 page)

My plan worked perfectly. On Wednesday afternoon, Judge Deleuze's draft dissent sailed into the chambers email account. Minutes after it arrived, before I even had a chance to read it, Judge Stinson called me into her office.

“Audrey, I presume the prompt appearance of Judge Deleuze's dissent is your handiwork.”

“I might have had something to do with it,” I said with a smile.

“I don't know what magic you worked, but whatever you did, thank you. Now we just need to finalize the opinion. In a normal case I'd want to revise our majority opinion to respond to the dissent's best points, but right now time is of the essence. So let's keep substantive revisions to a minimum, especially if the arguments in the dissent are already implicitly addressed in the majority. Your main focus should be reviewing our opinion and proofreading and double-checking everything—the case law, the citations to the record, the grammar and spelling—everything. We have the original trial record in chambers, correct?”

“Yes, Judge. It's that tower of boxes in my office.”

“Check the record citations against the original record. Don't rely upon photocopies or scanned documents. Everything having to do with this case needs to be perfect. And it needs to be done by tomorrow.”

I returned to my office, closed my door, and plunged into what I knew would amount to hours of work. I began by reading the dissent. It was powerful, persuasive, and passionate, as to be expected from Judge De
leuze. But after reading it multiple times, I concluded that there was nothing in it that absolutely required any changes to the majority opinion. Cases like
Geidner
, about politically charged issues implicating fundamental principles of constitutional law, were like that. They weren't going to be solved by legal legerdemain—the artful parsing of precedent, the stitching together of dicta, or the discovery of a dispositive, previously overlooked subsection in a statute. The relevant cases and concepts were limited and known to all. Deciding a case like
Geidner
was simply a matter of framing the issues and weighing the values; those processes, resting on disagreement over basic assumptions, did not lend themselves to endless back and forth and dueling in the footnotes. Judge Stinson would speak her piece, Judge Deleuze would speak her piece, and that was that.

I then turned to reviewing our majority opinion, closely and carefully. At this point in the process, the substance of the opinion was fairly set; I was mainly looking for errors to correct, knowing that this opinion would be the most widely read of Judge Stinson's entire career. I caught two typographical errors and tightened a few case parentheticals, but nothing more.

Finally, around midnight, I turned to double-checking the factual record. I fixed a handful of citations to the trial transcript but otherwise found little requiring amendment. I was about to close the document and head home for the night when I remembered: I should also check the timeliness of the notice of appeal once more. I had checked it when I originally drafted the opinion, and the clerk's office always checked the timeliness of the notice of appeal during the intake process. But the judge had instructed me to check everything again, against the original documents, and I intended to follow her instructions.

Judge Nathanson's order denying the defendants' motion for a new trial was filed on July 11. The defendants had thirty days from that date in which to file their notice of appeal, meaning that their deadline to file was August 10. I dug around the files, found the notice of appeal, and checked the date.

The piece of paper was slightly crumpled, as if it had been chewed up somewhat by a machine, and not easy to read. The notice of appeal had been filed via fax—who knew that people still used fax machines?—and that didn't help legibility.

But I could still read the date in the motion itself and in the fax transmittal line well enough: August 11. The document had been file-stamped at the top with an August 10 date—perhaps because the person in the clerk's office who had received it had forgotten to advance the date on the stamp—but the notice had clearly been filed on the 11th. August 11 was the date in the body of the document, and the fax transmittal line showed it went through at 2:25 p.m. on the 11th.

Was I certain about the deadline for filing the notice being August 10? I counted the days again. And again. And again, out loud, like a child. I wasn't great at math—how else did I wind up in law school?—but I was now certain. The notice of appeal in
Geidner
was not filed until
31
days after entry of the order denying the defendants' motion for a new trial. The notice was late, meaning the Ninth Circuit had no jurisdiction over the case, meaning that the appeal in
Geidner
must be dismissed—before the judge could issue her blockbuster opinion.

How had this escaped everyone's notice? The erroneous file stamp probably bore much of the blame. Out of curiosity, I went online and pulled up the electronic, scanned version of the notice of appeal. In the electronic version, where the blurriness of the fax transmittal was further blurred by an imperfect scan, the mentions of “August 11” looked a lot like “August 10,” due to a fuzzy “1” morphing into a “0.” I could now understand how this jurisdictional defect had been overlooked—but that didn't change the fact that it
was
a defect, and that the case had to be dismissed.

Judge Stinson had been wise to instruct me to double-check everything against the original documents. But I wasn't sure how she'd receive the news that
Geidner v. Gallagher
, her vehicle to the Supreme Court, had broken down.

I approached the doorway to Judge Stinson's office with trepidation, my arms heavy with the
Geidner
bench book and all the documents I needed to prove my case, including the original notice of appeal, a copy of the scanned version with the blurry dates, and printouts of the monthly calendars at issue for counting the days. But why was I so nervous? There was really only one possible option: the court had to dismiss
Geidner
for lack of jurisdiction. And if anyone would understand the need to dismiss for lack of jurisdiction, it would be Judge Stinson. I remembered her law review article about jurisdiction as an important limit on judicial power, how she eloquently discussed the importance of jurisdiction during my clerkship interview, and how Janet Lee had warned me in the chambers orientation about how Judge Stinson was a stickler for jurisdiction—a “juristickler,” as the judge had memorably put it during the
Geidner
oral arguments.

Seeing me in the doorway, burdened with my small tower of documents, Judge Stinson waved me into her office. She seemed to be in good spirits.

“You certainly have a lot of paper on your hands,” she said. “Let's sit at the conference table.”

I placed the stack of documents on the table, consciously trying to underscore its heft as I did so, before seating myself in front of it. I waited for Judge Stinson to sit down before beginning.

“Judge, I have some rather significant news about
Geidner
. It appears
the court lacks jurisdiction over the case.”

The judge pulled her head back and puckered her lips, as if she had just eaten a lemon.

“Come again?”

I walked the judge through my calculation of the days, showed her the original notice of appeal with the erroneous file stamp, and showed her the printout of the scanned version with the smudged dates. After my explanation, she sat in silence for a few moments.

“This can't be correct,” she said. “How could the appellants have failed to file a timely notice of appeal in a case this major?”

“Well, they missed the deadline by just a day …”

“Missing by a day is the same as missing by a week or a month. What I don't understand is how the multiple law firms representing the appellants blew this deadline.”

“I'm guessing the involvement of multiple firms was part of the problem. With Sawyer & Spock, the Marriage Defense Fund, and local counsel here in California all on the case, I suspect that everyone thought that somebody else was going to file the notice of appeal—which is, after all, a rather ministerial task.”

“A ministerial task, indeed. Something that could have been done by those trained monkeys we call paralegals. But Sawyer & Spock, one of the best litigation boutiques in the country, somehow managed to screw it up?”

Judge Stinson fell silent, but I could tell she was very displeased.

“Judge, how should we proceed?”

“I need to think about this. Follow me, Audrey.”

I trailed behind Judge Stinson as she stood up, grabbed her handbag, and walked out of her office. After telling Brenda that we'd return shortly, she exited chambers. We then started climbing the grand staircase that I remembered ascending way back when I interviewed for my clerkship. When we reached the top floor, we walked down a short hallway and passed through a doorway into another stairwell—a utility stairwell, with gray concrete replacing the colorful Mission-style tiles. We climbed
one more flight to a locked metal door. Judge Stinson dug around in her purse, found a set of keys, and unlocked the door.

We were on the rooftop of the courthouse, and it was nothing short of magnificent. The pink-orange bell tower cast a shadow over part of the space, but otherwise it was all light—California sunlight, drenching everything. The wall of terra cotta tiles was frighteningly low, no higher than our knees, so we could see for miles.

“This is my favorite place in the entire courthouse,” the judge said. “We're not supposed to be up here—look how low this wall is, it would be so easy to fall off—but the building manager had a crush on me and gave me a key. Take a walk around and check out the views. I'm going to sit down for a moment.”

Judge Stinson seated herself on the tile wall, crossing her legs and looking west. I walked around the roof, enjoying the warmth of the sunlight on my arms and the delicate breeze through my hair. After a few minutes, I returned to the judge and sat down next to her. We sat quietly for a few minutes, until she broke the silence.

“We are not dismissing
Geidner
.”

“We're not?”

“No. It's too important a case. It must be decided now. It deserves to be decided now—for the sake of California and the country. We are not going to let the barely late performance of what you accurately described as a ministerial act get in the way of something this significant.”

“But Judge, because the notice of appeal was filed out of time, the court doesn't have jurisdiction …”

“I am familiar with how jurisdiction works. I have been a federal judge for a fair number of years now, at both the trial and appellate levels.”

“As you yourself have written, jurisdiction is an important limit on judicial power. For a court to decide a case when it lacks jurisdiction is inconsistent with the law …”

“Don't lecture me about the law, Audrey. I have lived and breathed the law for decades now. You were still in diapers when I started my legal career. As I've said before, I am the decider. This is my call to make, and
I have made it.”

“Of course, Judge. I just want to advise you of all the risks. Because if it ever comes out …”

“And how would it ever come out? You owe me the law clerk's duty of confidentiality. What we've discussed this morning must remain between us.”

I didn't know what to say to that. Despite standing on a rooftop, open to the sun and the sky, I felt trapped.

“I should add, Audrey, that I would of course reward you for your dedication and discretion. If I manage to make it to the Supreme Court—which I believe to be a strong possibility, especially after my opinion in
Geidner
gets issued—I will hire you to clerk for me. You have my word. In a few months, you could be with me at One First Street.”

Another chance to achieve my dream, a dream so arbitrarily snatched from me by fate, and all I had to do was keep a confidence. Maybe the universe—or God, who I sometimes believed in and sometimes didn't—wasn't conspiring against me after all.

“Look around at all this,” Judge Stinson said, gesturing toward the mansions of Pasadena in the foreground, surrounded by palm trees and expensive landscaping, and the San Rafael Hills and San Gabriel Mountains in the background. “This is what the legal world looks like to someone who has clerked on the Supreme Court. All this can be yours, as long as you remain loyal to me. Remember: you are my clerk, and I am your judge.”

I nodded but otherwise said nothing. All I had to do was say nothing, and victory would be mine.

“Let's head back downstairs,” the judge said. “We have an opinion to issue. And a world to conquer.”

The
Geidner
opinion went public a few days later, when it was posted online late Tuesday morning. It probably could have been issued on Friday or Monday, but Judge Stinson wanted it to go out on Tuesday—a better day for catching the news cycle. Her calculation seemed to be correct; reactions came quickly. My office phone started ringing less than an hour after
Geidner
went live.

“Congratulations, Miss Audrey.”

“On what?”

“The opinion that you and your boss have produced in
Geidner
is good,” Jeremy said. “It doesn't
do
good—actually, it does
evil
—but it's a well-done opinion.”

“Uh … Thanks? You've read it already? It's about 80 pages, counting the dissent.”

“I'm a fast reader. And I knew what to expect. I can't say there were many surprises. But I don't know what it will do to your boss's SCOTUS hopes. It could cause problems for her.”

Of course Jeremy, an ultra-liberal gay man living in California, would hold that view. I had no intention of disabusing him of that notion—especially since he had been so useful in expediting Judge Deleuze's dissent by blabbing to his friends in her chambers about how Judge Stinson wanted to delay
Geidner
, when she in fact wanted the exact opposite.

“We'll see,” I said. “As you can see from the opinion, it takes no stand on the merits of gay marriage as a matter of policy. It simply argues that,
as a matter of law, the courts should let the people decide.”

“Way to stay on message. It sounds like you're ready for your own confirmation hearing. I just wonder if the opinion will stick.”

My pulse quickened.

“What are you talking about?” I asked.

“You know what I'm talking about. A case like this is crying out for rehearing en banc. Or might go up to the Supreme Court. You may have won the battle, but you haven't won the war.”

Phew. He wasn't talking about the jurisdictional problem. And how would he even know about that? I was being paranoid.

“I gotta run,” Jeremy said. “I've been summoned by
le judge
. I'll talk to you later.”

A few minutes later, my cell phone rang.

“Hey girl.”

“Hi Harvetta. What's up?”

“So I see you guys issued your opinion in
Geidner
.”

“Yup. It just went online.”

“Congrats. It's a smart-ass opinion.”

“What do you mean by that? It's a serious and substantial opinion.”

“It sure is! I don't mean ‘smart-ass' as in ‘wise-ass,' I mean ‘smart-ass' as in ‘really fucking smart.' I ain't dissing you, Audrey!”

“Sorry, I misinterpreted you. Glad you like it.”

“The jurisdictional discussion is especially strong.”

Again my heart palpitated.

“The jurisdictional discussion?”

“Yeah, the jurisdictional discussion—the analysis of whether the proponents of the ballot initiative had standing. Elegant treatment of
Arizonans for Official English
. You did draft this opinion, didn't you?”

“Ha ha, yes, of course,” I said, feeling stupid but also relieved. “Sorry, I've been working like crazy lately and I'm totally sleep-deprived.”

“How do you think this will affect your boss's chances of making it to the big marble palace?”

“The judge's focus is on getting the law right. How this might affect
her own career isn't relevant.”

“Okay, you can dodge, but I'll give you my opinion. Upholding Prop 8 could seal the deal for her. It's a great way to shore up her support among the social conservatives without pissing off anyone else. No senator, not even a hard-core Democrat, is going to yell at a Supreme Court nominee on national television for
not
striking down a law.”

“I see your point.”

“That's just how this game is played. Even the biggest liberal activist in the country, when nominated to the Supreme Court, has to do the whole ‘judges are umpires' bullshit. It's Justice Keegan's legacy. We are all originalists now.”

“Harvetta, I thought you were conservative. You sound awfully cynical about judicial restraint.”

“Yeah, I'm conservative, and yeah, I believe in judicial restraint. But it's much more complicated than the sound bites suggest. What pisses me off is how we don't use confirmation hearings to explore these issues because the nominees are too busy puking up platitudes.”

“Fair enough.”

“Okay girl, talk to you later. Just tell your boss that when she's up there for her confirmation hearings, she should say some shit that's
real
, not this out-of-a-can crap about applying the law to the facts.”

After hanging up with Harvetta, I started scouring the web for news coverage of
Geidner
. Most of the mainstream media sites had little more than headlines—not surprising, given the length of the opinion and how recently it had come down. I was about to turn to the blogs when Amit came into my office, sat down, and started talking at me.

“Why are you checking the newspaper websites? You know they won't have anything up on
Geidner
this quickly.”

“Well, I wanted to see what the ‘official' reactions to the opinion were. I was about to turn to the blogs.”

“Already there,” Amit said. “I've already looked at SCOTUSblog, How Appealing, Volokh Conspiracy, Concurring Opinions, PrawfsBlawg. Plus a lot of the conservative political websites, like the Weekly Stan
dard, Bench Memos, Confirm Them, Red State.”

“And what's the verdict?”

“The right
loves
this opinion. The social conservatives feel reassured about the judge. But even the libertarians who are down with gay marriage as a
policy
matter, the types of people who would vote for gay marriage at the ballot box, respect her
legal
conclusion that Prop 8 is constitutional. As for the liberals, they seem disappointed, but not angry at our boss. They're more focused on the Deleuze dissent and on whether the case might go the other way through en banc rehearing or at SCOTUS.”

“Any talk of how this might affect the judge's Supreme Court candidacy?”

“You bet. Tons of it. It's summarized by Ed Whelan's headline over at Bench Memos: ‘All Rise For Justice Christina Wong Stinson.'”

All I could do was laugh. Even though part of me wanted to cry.