Clay also wanted to get a sense of how difficult it would be to get a shot at President Jackson. A klansman’s work is never done, Senator Burton had told him during a recent telephone conversation.
A chill wind typically blew in the nation’s capital in mid-February, but this particular day was calm and pleasant. Clay and Cat seemed to enjoy the warmth of the sun as they made their way through the side streets of Washington toward 1600 Pennsylvania Avenue. They also seemed to enjoy one another’s company.
Cat said, “You never said why you’re in town.”
Clay said, “I’ve got a meeting tomorrow.” He did—with Senator Burton. But he didn’t tell Cat that. “What about you? What brings you to our nation’s capital?”
“I’m looking for a friend. Well, a boyfriend, actually.”
“I knew it. A woman as beautiful as you couldn’t be unattached… . Just my luck.”
Cat blushed.
Dozens of protestors were picketing in Lafayette Park, as they usually did. The war in Afghanistan, the state of the economy, the health care crisis, … even the president’s decision to enroll his teenage son in an exclusive private school rather than in one of D.C.’s sub-par public schools. Nothing was off-limits, and no affront appeared to go unnoticed.
A protestor who looked as if he hadn’t budged since the end of the Vietnam War said, “Now that’s what I call a hot cup of cocoa.” He was staring directly at Cat. His eyes traced the contours of her figure.
Clay said, “Shut up, old man.” He had no idea why he was defending Cat. He had said much worse—he had
done
much worse—to blacks in the past.
But Cat had captured his imagination. It didn’t matter that she was a few years older than he was. She didn’t act like it, and she certainly didn’t look like it.
She said, “Just ignore him, Clay. I’m much more interested in touring the White House than I am in letting some racist old fool spoil our day.”
Clay and Cat made their way to the public entrance of the White House. Unfortunately, it was closed on Tuesdays.
“Now what?” Clay said.
“Is there something else you’d like to see?” Cat said.
“How about the Supreme Court building? I’m told they let the public listen to the lawyers’ arguments. That might be interesting.”
“
Lawyers
…
arguments
… can’t we go to the dentist instead?”
“It’s not as bad as all that. The Court has got more power than most people realize. It would be fascinating to see how they do their jobs, and to see the building.”
Clay and Cat paused on the sidewalk in front of the Supreme Court building and admired the view.
“‘Equal Justice Under Law.’” Cat was reading the motto carved into the Vermont marble used to construct the building.
“They don’t mean it,” Clay said. “It’s all about money. If you’ve got money, you get all the justice you want. If you don’t, you’re shit out of luck.”
They began to make their way up the steps toward the public entrance when Clay suddenly stopped.
“What is it?” Cat asked. “You look like you’ve seen a ghost.”
But it wasn’t a ghost. It was Kelsi Shelton.
CHAPTER 76
Kelsi Shelton’s heart was beating a mile a minute. But it wasn’t because she had sprinted up a mountain of marble steps. She was nervous. She hadn’t told Professor McDonald—
Justice
McDonald—she was coming, and she didn’t know what she was going to say to him when—if—she saw him.
She struggled to open the enormous bronze doors that greeted all visitors to the highest court in the land.
“Everyone has trouble with them,” an elderly assistant U.S. marshal said when Kelsi finally managed to enter the building. “Each of the doors weighs a ton. I don’t know why the chief justice keeps refusing to allow public access through one of the side doors.”
Kelsi smiled. “Tradition, I imagine.”
“Are you here for a tour or to watch the arguments?”
Kelsi wanted to say, “Neither.” She wanted to say, “I’m here to see Justice McDonald. I’m here because I need his help.” Instead, she said, “To watch the arguments.”
The elderly marshal glanced at his watch. “They start in twenty minutes. The line’s over there.” He pointed to the sea of tourists crowded against the marble wall fifty yards down the corridor. He noticed the concerned look on Kelsi’s face. “Don’t worry,” he said to her. “You’ll get in. Visitors are permitted only fifteen minutes each when the line is as long as it is today.”
Kelsi was among the last of the visitors seated in the courtroom during the morning’s wave of tourists. The two people who made it in after her were newlyweds from Montana. Kelsi had asked them while they were standing in line why they had wanted to come to the Supreme Court on their honeymoon. They had answered that they had met in a civil liberties seminar at Montana State University and they thought it would be romantic. Kelsi said that was sweet and then proceeded to spend the rest of her wait reading the
Washington Post
.
She placed the newspaper in the recycling bin when she was escorted into the courtroom. The courtroom, known officially as the “court chamber,” took her breath away. It rivaled a football field in length and width, and its ceiling seemed to reach to the sky. Kelsi counted twenty-four marble columns and more than fifteen separate sculptures on two magnificent friezes. She recognized most of them from her legal history seminar at UVA. The south wall frieze included lawgivers from B.C.: Menes, Hammurabi, Moses, Solomon, Lycurgus, Solon, Draco, Confucius, and Augustus. The north wall frieze was decorated with lawgivers from A.D.: Justinian, Muhammad, Charlemagne, King John of England, King Louis IX of France, Hugo Grotius, Sir William Blackstone, John Marshall, and Napoleon.
“All rise!” the clerk of court cried out.
Kelsi returned to the moment.
Everyone stood.
The chief justice and the two senior associate justices entered the bench from the center of an enormous ruby curtain. Three associate justices processed from one side and three others from the opposite side. They each took their respective places on the bench, with the chief justice in the center and the others alternating from left to right in order of seniority. Peter McDonald, being the most recently appointed justice, sat in the seat at the far right of the bench.
Kelsi got goose bumps at the sight of her professor in his black robe taking his seat on the most powerful court in the world.
The chief justice said, “Before we begin today’s arguments, I’d like to take a moment to welcome our newest colleague, Justice Peter McDonald.”
All the justices turned toward McDonald and beamed. The senior associate justice said, “Here, here!” He began to applaud.
The entire courtroom followed suit.
McDonald acknowledged the warm welcome with a polite “Thank you. Thank you very much.”
The chief justice took that as a cue to gavel the proceedings to order and to call the first case.
CHAPTER 77
The case was
Tucker v. University of South Carolina
! Kelsi couldn’t believe it. She was about to witness the oral arguments in the most highly anticipated civil rights case in a generation. The question presented to the Supreme Court was so important—whether the Court should reverse its 2003 decision in
Grutter v. Bollinger
that the nation’s colleges and universities may take the race of applicants into account when deciding which students to admit—that, according to the morning’s
Washington Post
, President Charles Jackson had instructed his White House counsel, Cheryl Richards, to file a friend-of-the-court brief on behalf of the university.
Kelsi was stunned that she had managed to find a seat in the courtroom, but the person sitting next to her said that the chief justice had instructed the clerk of court not to release the day’s arguments list until fifteen minutes before the arguments were to commence. It was a highly questionable decision—the Court was a
public
institution—but the chief justified the secrecy on the grounds of national security: the president himself was in attendance.
Kelsi scanned the courtroom and discovered that Senator Alexandra Burton was sitting three seats to the right of the president. Kelsi recognized the senator from Professor McDonald’s confirmation hearings. The president and the senator acknowledged one another with polite nods and handshakes.
The chief justice said, “We’ll hear arguments now on number 11-426, Patricia and Michael Tucker versus the University of South Carolina.”
Patricia and Michael Tucker were Alexander Tucker’s parents. Alexander Tucker was Alexandra Burton’s dead grandson.
The chief justice continued, “This matter is before the Court on the Tuckers’ petition for expedited review. Before we begin, the Court wishes to commend the parties on their exemplary briefing under trying circumstances. We appreciate it … Senator Burton.”
Gasps filled the courtroom as Alexandra Burton stood from her seat in the gallery and made her way to the lectern. The fact that Senator Burton would be arguing her grandson’s case was also kept secret from the press.
She said to the chief justice, “May it please the Court. I can tell from the gallery’s reaction that many are surprised to see me at the lectern this morning. Well, they shouldn’t be surprised. Alexander Tucker, God rest his soul, was my grandson … and my daughter’s only child. What kind of grandmother would I be if I didn’t do everything in my power to see to it that Alexander didn’t die in vain? What kind of mother would I be?”
The chief justice and the eight associate justices seated with him clearly understood, as did everyone else in the courtroom, that Senator Burton’s powerful questions answered themselves.
But lawyers arguing before the nation’s highest court rarely spoke for more than two minutes before getting peppered with queries from the bench. This case was no exception.
The chief justice said, “Senator Burton. I’m sorry for your family’s tragic loss. I truly am. But, as you know, it’s highly unusual for this Court to overrule one of its precedents so soon after deciding it. Why should we do so in this case?
Grutter
was decided less than ten years ago.”
Senator Burton hadn’t practiced law in thirty years, but she had done her homework on the issues that would likely determine how her grandson’s case would come out. Stare decisis—the legal principle by which a court was obliged to respect a prior decision on the same question—was perhaps the most important of those issues. The senator said, “I agree, Your Honor, that it’s unusual for the Court to reverse itself so quickly. But it’s not unheard of. The Court once overturned a precedent only one year after deciding it.”
The chief justice, a large man with a large ego, leaned forward and said, “You’re talking about
Booth v. Maryland
.”
Burton said, “That’s correct, Your Honor.”
A liberal associate justice seated on the left side of the bench interjected, “
Payne v. Tennessee
, the case that overturned
Booth v. Maryland
, was not one of our finest hours. Power, not reason, was the Court’s currency in that decision. A number of my colleagues wanted to permit the use of victim impact statements during the sentencing phase of capital punishment trials and, after Justice Brennan’s replacement by Justice Souter, they had the five votes they needed to do so. It’s as simple as that.”
Supreme Court justices often used oral argument to debate one another rather than to engage the lawyers, and that was what was occurring during Burton’s presentation.
A conservative associate justice said, “I disagree with my honorable colleague that ‘power, not reason’ explains our decision in
Payne
. It was appropriate to overrule
Booth
in
Payne
because
Booth
was a constitutional case, which unlike cases interpreting statutes cannot be corrected by Congress if they are in error; it involved a rule of evidence in which no one had a vested economic interest; and the case had been decided by the narrowest of margins, over spirited dissents challenging the basic underpinnings of the precedent at issue.”
The dozen or so journalists who happened to be in the right place at the right time—namely, in the courtroom of the Supreme Court of the United States during the unannounced oral arguments in
Tucker v. University of South Carolina
—were taking notes as quickly as they could.
A second conservative associate justice said, “Senator Burton, let’s leave the debate over this Court’s theory of precedent to our friends in the law professoriate.” The justice turned to her left and smiled at Peter McDonald. She continued, “What’s your response to the university’s argument on page 7 of its brief that a diverse student body benefits white students, not simply minority students?”
Senator Burton took a sip of water. She hadn’t blinked in ten minutes. She said, “With all due respect, I don’t buy that argument, Your Honor. Indeed, that argument goes to the heart of this Court’s decision in
Grutter
in 2003, and it goes to the heart of my grandson’s case today. The university is focusing on the wrong set of white students to be concerned about. Rather than focus on the white students who were fortunate enough to be admitted to the university, my daughter and son-in-law are asking this honorable Court to focus on the white students who were denied admission… . Students like their son … students like my grandson. Succinctly put, the best way to stop discrimination on the basis of race is to stop discriminating on the basis of race. Justice requires nothing less.”
The chief justice said, “Time.”
CHAPTER 78
“Ms. Richards?”
Cheryl Richards approached the lectern. There had been a lot of discussion among the lawyers supporting the university’s position as to whom should argue
Tucker v. University of South Carolina
on its behalf. The attorney general of South Carolina had suggested that the solicitor general of the United States present the case. The thinking there was that the solicitor general’s job was to represent the United States in the Supreme Court, which meant that he appeared before the nation’s highest court on a fairly regular basis … and certainly more frequently than government lawyers from South Carolina did. Jim Westfall, the president’s chief of staff, had countered that the United States wasn’t a named party in the case. Charles Jackson was merely what was called an “interested party”: a person with a recognizable stake in the outcome of a matter before the Court but not otherwise directly involved in the litigation of the dispute. Consequently, the decision was made that the White House counsel should present the case.