“I’m aware of that, Mike,” Pepper said. “There’s something else you should all know. Just before he expired, Mr. Clenndennynn said, “ ‘Did we win?’ ”
Justices stared. No one spoke. Finally, Paige Plympton said, “Did anyone make a reply to Mr. Clenndennynn?”
“I was trying to figure out something to say when he died.”
There was a rumble, a low rumble that at first sounded like bronchitic lungs gasping for air, but which shortly revealed itself as-laughter. It was coming from Crispus, from very deep within him, as magma from an erupting volcano. His shoulders shook, his eyes teared, his hands gripped the edge of the conference table.
“I… aha… ahaaaa… sorry, sorry. It’s not in the least… haaaa-haaa-haaaaaa. It’s just too… haaaaaa.” Ruthless stared at him with pursed lips, like a church lady confronting a bishop who had just farted in the middle of the Sermon on the Mount. Crispus gave a few final shudders, dabbed his eyes. “I’m sorry. Sorry,” he said. “It’s just…” This was followed by another few eruptions. After which he said, “Sorry. Sorry.”
There was silence and the ticking of the grandfather clock.
“I think-” the Chief Justice said.
“If I might?” Pepper said.
Declan waved her on.
“I know it’s my decision whether to recuse myself, and I thank Mo for pointing that out. There was no ex parte discussion. But under the circumstances, I’m going to let you all decide whether I should have a vote in Mitchell.” She stood. “I’ll abide by whatever your decision is.”
“No. No,” Declan said, bringing his hand down on the table with an angry thump. “That’s is not how we do things.”
“You got a better idea?”
“It’s your decision. Don’t ask us to make it for you. Take responsibility. It’s your conscience. Your integrity. Don’t ask for a proxy vote on it.”
Pepper was formulating a response to this outburst when Justice Haro said, in a lowered but distinctly audible voice, “Is ‘integrity’ applicable here?”
Pepper wheeled. “You know, Mike,” she said in a measured tone, “there’s something I’ve been wanting to say to you for a while now. Kiss my ass.”
To everyone’s knowledge, it was the first time in history those three words had been uttered in the justices’ conference room. No one moved. The Chief Justice stared at Pepper with icy contempt.
“I’ll be in my chambers,” Pepper said, gathering up her papers. “Let me know how the vote goes.”
PEPPER BURIED HERSELF in mind-numbing minutiae, redrafting an overdue opinion, poring over footnotes, even paying bills, until she’d managed to put herself into a sort of zombielike state. When finally she looked up at the clock she saw that nearly two hours had gone by. It was taking them a long time to vote. Or did the delay portend some graver development? Were they drafting a petition asking her to resign? Articles of impeachment? No, she recalled from Introductory Con Law-that was up to the Congress.
Eventually there was a knock on her door. She looked up, expecting Crispus on some lugubrious ambassadorial mission-For what it’s worth, darlin’ child, I took your side, but they all felt it would be best if you did the decent thing and resigned… But no, it was Declan, looking either drunk or like someone had smacked him across the face.
“You look like shit,” Pepper said.
He sat in a chair facing her.
“You okay?” she said.
“You just said I look like shit.”
“Sorry. You been…?”
“No. I had a little snort before the conference. I could drain an entire bottle right now, but I don’t think that would help.”
Silence.
“So, you all want me out of here?” Pepper said.
“No. It’s not that.”
“Well, what is it? You look like an armadillo just crawled up your butt.”
“Crispus told me.”
“Told you what?”
“About the FBI. About Haro.”
“Aw, he wasn’t supposed to do that.”
“I’m not sure where to begin. So I’ll start with the apology.”
“No one here owes me any apology.”
“I confronted Mike. Not in front of the others.”
“Was that smart, in the middle of this shit storm?”
“There’s a principle at stake here, Pepper.”
“I’m sick of principles. Vanderdamp ran on principle, and look what that accomplished. This country’s ready to explode. And we’re the detonators. Principles. Nothing but trouble. I don’t want to hear any more about principles.”
Declan seemed unsure how to process this declaration.
“So what did Mr. Justice Integrity have to say?” Pepper said.
“Not much.”
“He could always just deny it. I destroyed the evidence.”
“You’re about as adept at destroying evidence as you are at using our Intranet. Crispus dug the pieces of paper out of the wastebasket and taped them together.”
“That sneaky…”
“I showed it to Mike. I enjoyed that part. He went appropriately pale. Started blathering about gestapo tactics and criminal procedure. I was tempted to ask for his resignation.”
“Kind of draconian, isn’t it?”
“Draco is on the frieze in the Great Hall. You may have noticed.”
“I did. Along with Moses and the Ten Commandments, with his beard covering the Thou Shalt Not parts. You ought to do something about that, by the way. So where was it left?”
“It was left that he is going to apologize to you at conference, starting fifteen minutes from now. For impugning your integrity. Further, he is going to propose that you not recuse yourself. My sense is that the others will accede. As for the leak and the FBI, nothing more will be said, by anyone, to anyone. You might apologize to him for telling him to kiss your ass.”
“Slick, Chiefy,” Pepper said. “Real slick.”
“Yes,” Declan said. “It was, rather.”
THE VOTE on Mitchell v. Vanderdamp was 4-4. It fell to the juniormost justice to cast the deciding vote.
There had been vigorous discussion around the table. Normally, the Chief Justice did not encourage “debate,” preferring that these contentions be waged on the cooler battleground of written opinions and footnotes. Nine old farts sending footnotes to each other. But this was an unusual case, and sensing that a certain amount of face-to-face combat might be cathartic, he allowed it.
The four justices in favor of granting Mitchell’s motion clove to the (technical) argument that the term-limit amendment was in effect prior to the election, and that Vanderdamp’s election was thus null and void. The four justices in favor of denying the motion, and allowing President Vanderdamp to take office for a second term, made their stand on grounds of the larger issue, namely that the people-as in “We the People”-had elected him, amendment or no. They viewed with approval, too, Graydon Clenndennynn’s final (in so many ways) point that the Twenty-second Amendment was not “prospective.”
It got pretty heated. The word “goddammit” was uttered several times; the table was thumped; motivations subtly questioned; the Chief Justice had to interject, “Come on, now,” or “Please.” At one point, Crispus leaned over to Pepper and whispered, “This is better than Friday Night Smackdown.”
“Silvio,” said Justice Gotbaum, “you’re completely twisting what Bernstein said.” [33]
“I goddamn well am not. I do not ‘twist.’ ”
“Well, for your information, it’s a valid goddamn constitutional amendment. The Congress is the ultimate expression of the will of ‘the People.’ It has the superior claim to legitimacy-and therefore trumps-even the results of an election.”
“I’m with Mo,” Ruthless Richter said. “The principle here is precisely the same as in judicial review. We’re back to Marbury. And if you want to bring in law review articles, I’d refer you to Bill Treanor’s in Stanford Law Review. [34] As Justice Marshall observed in Marbury, ‘Ours is a government of laws, and not men.’ The amendment, adopted by ‘We the People,’ through the constitutional process, has a superior claim to legitimacy over an election result.”
[33] Richard Bernstein’s Fordham Law Review article, “The Sleeper Awakes,” a study of the Twenty-seventh Amendment: “Article V sets forth only one limitation on the types of amendments that may be proposed: ‘that no State, without its Consent, shall be deprived of it’s [sic] equal Suffrage in the Senate.’ ”