The chief justice had demonstrated how comfortable he was with McDonald’s participation in
Tucker v. University of South Carolina
by assigning McDonald the majority opinion in the case. It was unusual for a new justice to be assigned the opinion for the Court on such a significant matter, but McDonald was no ordinary junior justice. He was the Court’s most sophisticated legal theorist since Oliver Wendell Holmes Jr.
The opinion for the Court was the most difficult opinion to write because it wasn’t solely the opinion of the author. Justice Holmes had said that writing the Court’s opinion required that the author “dance the sword dance.” Justice Harry Blackmun had made the same point less poetically: “Other justices say that if you put in this kind of paragraph or say this, I’ll join your opinion. So you put it in. And many times the final result is a compromise.”
Compromise was difficult for law professors. Most professors had entered the cloistered walls of the academy because they wanted to express
their
ideas, not the ideas of a committee. McDonald was no different.
“Finally,” McDonald said to his empty office. “A decent first draft.”
He had been working on the opinion for fifteen hours straight, and he was exhausted. He saved the draft on his PC and on the thumb drive that accompanied him everywhere he went. He shut down his computer, stuffed the thumb drive into his pocket, and headed for the small apartment he rented in Georgetown.
McDonald had been encouraged to buy a home in the D.C. area. He declined. He couldn’t bring himself to sell his house in Charlottesville. Jenny had loved that house, and so had Megan. He had promised them shortly after his nomination had been announced that he would never sell it. He wasn’t about to break his word. His wife and daughter were dead, but they remained the two most important people in his life.
CHAPTER 82
Clay Smith waited for Peter McDonald to lock the door before he took his next breath. Clay was stunned that he had managed to sneak into the Supreme Court building after hours and he didn’t want to spoil his good fortune by making a stupid mistake. He was torn, though. Should he kill McDonald immediately? He had a clear shot at him—probably the best shot he would ever get—and the imperial wizard had asked Clay to kill the Court’s newest justice. Or should Clay first have a look around McDonald’s office to see if there was something that might help Burton in the larger sense of the word, like, say, a draft opinion in
Tucker v. University of South Carolina
?
Clay chose the latter course. He was a klansman, and klansmen did what they were told, but he was also a law student—at least he had been until the week before when he had heard on the radio that he had been officially expelled in absentia—and curiosity required him to search for the draft opinion.
Many of the senior faculty at UVA law school continued to write their articles on legal pads for their secretaries to type. It was tough to teach an old dog a new trick, as the cliché went. But Kelsi Shelton had told Clay that McDonald did his own typing. That meant that Clay had to figure out how to access McDonald’s computer.
Clay switched on the power, waited for the PC to boot, and took a few stabs at a security password. He first tried McDonald’s wife’s name. Next he tried McDonald’s daughter’s name. Then he tried
W
AHOO
. Bingo! Clay said to himself. McDonald, whom everyone on campus had known as a sports nut, had used the nickname of UVA’s sports teams as his password.
McDonald hadn’t had a chance yet in his initial weeks on the bench to create many documents, which meant it didn’t take Clay long to find the document for which he was searching. The file was entitled
T
UCKER
M
AJORITY
O
PINION
and, sure enough, McDonald had been assigned the opinion for the Court. There had been considerable speculation in the press about whether McDonald would get the plum assignment as his first opinion, and the document that Clay was reading as quickly as he could confirmed what the Washington whispers had suggested.
Nothing that Clay read surprised him. McDonald’s draft was clear, thoroughly researched, and most important for present purposes, it came out in favor of the university.
McDonald took a different path than that suggested by President Jackson. Rather than emphasizing the president’s point about making amends to minorities for previous discrimination against them—what civil rights activists called “reparations”—McDonald held that stare decisis mandated that
Grutter v. Bollinger
not be overturned by the Supreme Court. McDonald credited society’s rejection of the “separate but equal” concept as a legitimate reason for the Court’s rejection of
Plessy v. Ferguson
in
Brown v. Board of Education
, but he emphasized the need for the Court in the case at bar not to be seen as overruling a prior decision merely because the individual members of the Court had changed. Justice McDonald wrote:
Because neither the factual underpinnings of
Grutter’s
central holding nor our understanding of it has changed, and because no other indication of weakened precedent has been shown, the Court could not pretend to be reexamining the prior law with any justification beyond a present doctrinal disposition to come out differently from the Court of 2003.
Clay didn’t know what to make of McDonald’s argument. It was certainly original. McDonald had seemingly created a new theory of stare decisis, one that tried to reestablish the Supreme Court as a court of
law
rather than a
political
institution. But McDonald’s approach was inconsistent with the vast majority of the Court’s most recent decisions, including, most famously,
Bush v. Gore
,
wherein the Court’s five conservative justices essentially picked the president of the United States … much to the chagrin of the Court’s four liberals and to the Democratic Party writ large.
Although these shortcomings in McDonald’s reasoning would probably occupy much time and attention in the nation’s op-ed pages and law journals, they had no practical effect. In the immortal words of Justice Robert H. Jackson, Supreme Court judges “are not final because we are infallible, but we are infallible only because we are final.”
Clay saved a copy of the draft to the thumb drive he had purchased for precisely this purpose and rushed off to share the news with the imperial wizard.
CHAPTER 83
Alexandra Burton poured a glass of wine. She was drinking a Mullet Hall Red from the Irvin House Vineyard in Charleston. Several of her U.S. Senate colleagues had been urging her for years to try a more expensive French wine, such as a Petrus or a Romanee Conti. Burton always declined. She was an American. She was a South Carolinian. She was a
klanswoman
. No foreign drink would ever touch her lips.
A soft breeze stirred the wind chime on Burton’s porch. The setting sun painted a landscape above the tall oaks in her yard. A perfect Sunday afternoon, she thought. Almost … Clay Smith had reported early on Saturday morning that the Supreme Court was poised to rule against her grandson. Burton knew that an opinion of that magnitude was unlikely to be released until the final day of the Court’s term, so she still had time. Five weeks, to be precise. The Court always recessed during the last week of June.
Burton returned her attention to David M. Chalmer’s
Hooded Americanism: The History of the Ku Klux Klan
. She was almost always reading two books at the same time: one—usually a biography of a famous politician—that related to her political career, and a second about the Klan. It was difficult to find unbiased treatments of the latter, but Chalmer’s book was certainly one.
Burton turned to the chapter about South Carolina. Chalmers reported that the Palmetto state was the last of the realms chartered during the reign of Imperial Wizard William J. Simmons,
but there is scant detail of its history. This may well substantiate the general feeling on the part of historians that the Invisible Empire was of negligible force and importance in South Carolina
.
Burton knew otherwise. In the 1920s her grandfather had been one of the founding fathers of the South Carolina Realm. Hard times on the farm, an unexpected influx of Roman Catholics from above the Mason-Dixon line, and, of course, lingering racial unrest from the freeing of the slaves after the Civil War all provided fertile soil for the Invisible Empire. For example, when longtime congressman and future U.S. Supreme Court justice James F. Byrnes decided to run for the U.S. Senate in 1924, the South Carolina Realm flexed early political muscle and ensured his defeat by circulating thousands of copies of a petition the day before the election in which several of Byrnes’s childhood friends had praised the candidate’s efforts in saving the life of an African American playmate who had fallen into a local swimming hole.
By the time Burton had come of age, the South Carolina Realm was among the most vibrant in the nation. The Supreme Court’s landmark 1954 public school desegregation decision,
Brown v. Board of Education
, had proved to be a powerful recruiting tool for the Klan throughout the country, especially in the South. The civil rights movement led by Martin Luther King Jr. in the 1960s had inspired thousands of white southerners to say that enough was enough. A young Alexandra Burton was among them, and with Burton’s intelligence and work ethic, she quickly rose through the ranks of both the Klan leadership and state and national politics. At twenty-five, Burton was elected grand dragon of the South Carolina Realm. At thirty, she was a U.S. senator. At forty-five, she was the imperial wizard of the Ku Klux Klan. At sixty, she was poised to announce her candidacy for the Republican nomination for president of the United States.
Burton checked her watch. She couldn’t afford to be late. She drained her glass of wine, stubbed out the one cigarette she permitted herself per day, and headed for her car. She wouldn’t use a driver tonight.
CHAPTER 84
Burton had called an emergency meeting of the kloncilium to discuss Clay Smith’s recent discovery that Peter McDonald was planning to rule in favor of affirmative action. A series of encrypted e-mails during the past couple of weeks suggested that the kloncilium had expected as much, but Clay’s confirmation of their suspicions was important enough to merit a face-to-face discussion. They agreed to meet, as they almost always did, at The Sacred Temple of the Kloncilium.
The kloncilmen filed into the ceremonial room. The fiery summons had been issued only the day before. Burton apologized for the short notice. She said, “Akia. Kigy.”
The other members of the kloncilium returned the imperial wizard’s salutation.
The opening devotional was recited from the Kloran.
“I’ve called you here this evening to apprise you of some troubling news,” Burton said. “The news was not unexpected, but it was nonetheless extremely disturbing when I received it. This young man to my right was the bearer of the bad news. I think it’s best that he share it with you himself.”
“Who is he, Your Excellency? It’s unprecedented for a guest to attend a kloncilium meeting. Our meetings are sacred.”
The kloncilman who had uttered the objection was the grand dragon of the Indiana Realm. The Hoosier state wasn’t famous for basketball only. The Klan’s presence in Indiana was greater than that in any other state. It had been that way since the days of David C. Stephenson.
Stephenson had been one of the original backers of Hiram Evans’s 1922 effort to unseat William Simmons as the imperial wizard of the Invisible Empire. When Evans’s coup proved successful, he named Stephenson the grand dragon of Indiana and twenty-two other northern and midwestern states. Indiana was Stephenson’s stronghold: at the height of Stephenson’s power, nearly one-third of all adult white males in the state were members of the Indiana chapter. Although membership had waned over the years, Indiana still claimed more Klan members per capita than any other state.
Of course Burton knew this, and she handled the question from the current Indiana grand dragon with the kid gloves it required. She said, “This young man is the nephew of one of our fallen heroes.”
“Which one?” the kloncilman from Ohio asked. Ohio was another legendary Klan stronghold.
“Earl Smith.”
All six remaining members of the kloncilium stood as a sign of respect for their fallen colleague. “Akia! Kigy!” they said. They pounded the floor seven times with their feet… . Another Klan ritual.
Clay Smith didn’t know how to react. He said, “Thank you” and added that he, too, was a klansman.
That drew a second chorus of the sacred Klan refrain.
Clay failed to mention that he was the one who had killed his uncle.
Burton stated that, in addition to being Earl Smith’s nephew, Clay had been a law student at one of the top schools in the nation. “There’s no one more qualified to explain what the Supreme Court is about to do than young Mr. Smith here.” Burton patted Clay on the shoulder. “Clay, the floor is yours.”
Clay proceeded to explain as simply as he could the gist of Peter McDonald’s draft opinion in
Tucker v. University of South Carolina
. Most of the kloncil members seemed to understand what he was saying. The only exception was the grand dragon of Texas, the great grandson of Hiram Evans who owed his position on the kloncilium to his great grandfather’s legacy rather than to any skill set, intellectual or otherwise, he personally possessed. But even that grand dragon appeared impressed when Clay described
how
he knew any of this: because he had broken into one of the most secure government buildings in the United States and stolen the draft.
After Clay had finished, he was instructed by a unanimous vote of the kloncilium to do anything he needed to do to make certain that McDonald’s draft opinion didn’t become the Court’s published opinion. When Clay had asked for more specific guidance, Burton had said, “You know what to do.”