Protect and Defend (52 page)

Much like Sarah, Caroline supposed, she did not know what would happen. As the parties sat, she realized that her hands were clasped tightly beneath the bench.

“Ms. Dash,” the Chief Judge said politely, and the hearing began.

Afterward, still feeling the adrenaline rush which made the hearing seem like disjointed pieces of a dream, Sarah sorted through her most vivid impressions.

Lane Steele’s face and voice were imprinted on her mind. For the first ten minutes, his piercing voice had interrupted her with question upon question:

“With the advance of medical science, Ms. Dash, won’t a cesarean section soon become no more problematic than having one’s tonsils out?”

Then:

“Are you asking us to sacrifice a life on the altar of a mother’s mental health?”

Then:

“Does an anomaly in a fetus automatically equate to emotional distress in the mother?”

Then:

“If all we have to go on is some unverifiable claim of angst, aren’t you asking this court to sanction eugenics?”

“We’re not advocating eugenics,” Sarah recalled objecting. “We’re trying to protect a minor’s reproductive health—”

“At least one percent of it,” Steele interjected in caustic tones. “What would you say to us if your abortion yields a normal—albeit dead—child …”

“Forgive my interruption.” Speaking from behind Steele, Judge Blair Montgomery had used a mild voice which seemed to underscore his disdain. “If I might suggest this to my colleague, the remaining ten of us are quite familiar with the substance of his written opinion. That’s why we’re here.

“I, for one, am interested in a fresh perspective. Perhaps even Ms. Dash’s.”

The directness of this challenge left Steele groping for a retort less venomous than the look he shot Montgomery. With a smile of encouragement, Montgomery said to Sarah, “I’m sure you can incorporate an answer into the body of your argument. Which we, and the country, remain anxious to hear.”

This clear reference to the camera had seemed to seal his adversary’s silence. Sarah’s argument commenced at last, gaining strength, punctuated by questions posed in more civil tones. But Caroline Masters asked nothing.

Martin Tierney’s principal memory, Sarah supposed, would be of Blair Montgomery.

Unlike Steele, Montgomery bided his time. His first question, asked several minutes into Tierney’s argument, was unexpected:

“Would you say, Professor Tierney, that a mother’s prospective loss of an arm is a ‘substantial risk’ to physical health?”

Tierney hesitated, plainly surprised by the question. “Under the Protection of Life Act,” he answered, “there is room for a parent—or a court—to so conclude.”

“But wouldn’t you agree,” Montgomery asked, “that at least some women would rather lose an arm than lose the capacity to bear children?”

Once more, Tierney paused. Watching, Sarah had wondered whether he was thinking of his own wife, and whether Blair Montgomery had intended that he do so. “They might,”
Tierney conceded. “But fear is one thing, reality another. When a minor becomes pregnant, a parent, or a court, can determine whether any threat to infertility is substantial, or marginal …”

“Then let me ask a real-world question: Should a battered wife determine whether a minor daughter should bear her own father’s child? Or does the added fact of incest suggest that the girl and her doctor should have a greater role?”

Challenged, Tierney retorted, “These horrors surely happen, however isolated. But under this law such girls can go to court.”

“Go to court?” Montgomery repeated in a tone of incredulity. “The thirteen-year-old daughter of an abusive and incestuous family?

“Truly, Professor, I wonder if life often conforms to the tidy patterns you’re constructing for us: loving parents, benign judges, and teenage girls too immature to have an abortion, yet resourceful enough to hire a lawyer and proceed to federal court. Which, in the case of girls in this district, may be as much as two hundred miles away.”

“Your Honor,” Tierney responded, “any rule which prevents tragedies may, in rare cases and by inadvertence, make others possible. I submit to you that the protection of a viable late-term child is far
less
tragic than the exceptions which might result.”

Montgomery sat back. “The ‘exceptions,’” he observed, “are girls you will never meet, or even know to pity. But please continue, Professor Tierney.”

Sarah glanced at Caroline, wondering how she registered Martin Tierney’s deflation. But, though intent, Caroline remained expressionless. In watchful silence, she observed her colleagues questioning Tierney, then—during rebuttal— Sarah.

And then, quite suddenly, it was over, and Caroline and the others had turned their backs and were filing toward the conference room.

The spectators stirred to life, trading comments and speculation. Amidst the din, Sarah tried to imagine the deliberations which would now begin, the thrust and cut of argument among the judges. All but Caroline Masters had asked at least
one question: though Sarah understood her reasons, she could not help but feel betrayed.

In the Oval Office, Clayton turned from the screen.

“Hardly a distinguished performance by our putative Chief Justice. But at least she’s learned the virtue of silence.”

The President shrugged, speaking in the shorthand he often used when the two of them were alone: “Television.”

“If she meant to give Gage nothing,” Clayton observed, “she succeeded brilliantly. How do you suppose they’ll rule?”

Kerry stood. “There are two votes with Montgomery,” he ventured, “and three, I think, with Steele. The others didn’t tell me much.”

“You should hope they’re in Steele’s pocket, Kerry. That could be the best for all of us.”

The President did not answer. Instead he drifted to the window, gazing out at the grass lit faintly by pale winter sun.

After a time, Clayton, the only person besides Lara who would feel comfortable asking, inquired what the President was thinking.

For some moments Kerry did not answer. Then, quite softly, he said, “I was recalling why I have such mixed feelings about all this. And wondering about Caroline’s.”

T
HE CONFERENCE
room dated to the 1930s and had a stark and disconcerting authoritarian aspect, emphasized by gilded plaster eagles on the wall and—to Caroline’s continuing amazement—swastika-like emblems in the labyrinthine pattern of the ceiling. The effect was ascetic and austere: in the harsh lighting from recessed cans, the eleven judges sat around a long walnut oval, resembling, but for the presence
of two women, a conclave of monastics. Their expressions were as grave: all of them must guess, as Caroline did, that the court was closely divided, each vote potentially fateful.

The process was fixed by long tradition. The judges would speak in order of their arrival on the court, from the most junior to the highest in seniority, with the chief judge speaking last. The result of these exchanges was a preliminary vote which, if it held, entitled the senior judge in the majority to write a draft opinion, or assign the opinion to another who concurred. The author of the opinion would circulate the draft for review and, should it still command a majority, the court would issue it as written or as modified. The author’s name appeared beneath the caption; as with most judges, Caroline took great pride in the cogency of her writings, the body of decisions which reflected her life in the law.

Schooled in patience by necessity, Caroline had come to enjoy the process, from the clash of argument to the slower pace of reconciliation and refinement. But today was different. The case was an emergency, made so by the state of Mary Ann Tierney’s pregnancy—the inflammatory element which had focused national attention on this room, and on Caroline’s vote. Within forty-eight hours the court would issue its opinion to an explosion of headlines and a cacophony of newsbreaks, and both the fate of the fetus, and of Caroline’s nomination, might be sealed. As they waited for the Chief Judge to begin their ritual, her colleagues’ body language was repressed, their glances at Caroline more covert.

“Well,” said Sam Harker dryly, “here we are.” Turning to the most junior judge, he said, “Mary?”

Mary Wells—blond, trim, and a Democratic appointee— was noted for her brevity and, with only a year on the court, her deference. “This is a hard one,” she said. “But it illustrates the problem with drawing narrow rules restricting medical decisions, then taking those decisions out of the hands of doctors.

“Because the physical health exception is too narrow, the problems it creates are too broad. The fact that we’re quarreling about whether a chance of infertility is one percent, or five, suggests that. What’s enough—ten percent, or twenty? And who decides?” Wells paused, glancing at her notes, less
to review her conclusion than to find the resolve to speak it. “The act unduly burdens the right to an abortion found in
Roe
and
Casey
. To me, it’s unconstitutional as to Mary Ann Tierney,
and
on its face.”

Caroline felt a tingle of anticipatory tension. Though Mary’s opinion did not surprise her, her incisiveness did—to throw out the Protection of Life Act altogether was the boldest and broadest ruling. Mary had shaped the discussion which would follow, laying down a marker for the others. Across from Caroline, Lane Steele, too, looked tense.

“José?” Sam Harker asked.

Next to Mary Wells, José Suarez gathered himself. A lawyer from Phoenix, José had been passed over in Caroline’s favor four years prior, and his accustomed courtesy toward her did not entirely conceal his resentment. In this case, José was a puzzle: though inclined toward women’s rights, he was a devout Catholic, and his ambivalence was apparent.

“I would not sweep so broadly,” José began with care. “I’m concerned with Ms. Tierney’s well-being, but also with invalidating an act of Congress which has the salutary purpose of protecting a viable fetus.” Turning to Mary Wells, he said, “I’m open to persuasion here. But I think the best way to proceed is by upholding the Protection of Life Act, then interpreting its ‘physical health’ exception to include the risk of infertility. That would give Mary Ann Tierney her abortion.”

True, Caroline thought. But legally it would be a mess: in trying to make the narrowest ruling—confined to Mary Ann— he was expanding the statute in a way that Congress plainly had never intended. Lane Steele, too, perceived this; he smiled grimly at the table, as if to say that this was no more than he expected from Judge Suarez. The first two votes for Mary Ann Tierney, Caroline thought, lacked a common thread; were Sarah Dash here, she would consider the votes expected, but their differing rationale worrisome.

“Judge Bernstein?” The Chief Judge spoke the more formal title with added decorum, signaling that Marc Bernstein was the only judge present whom Sam Harker truly loathed. Harker was not alone. In Bernstein’s view, a razor-sharp mind licensed him to be acerbic: with the exception of Lane Steele, his dissents had derided the intellect of every conservative at this table, as well as that of most others present.

“Congress,” he began in clear rebuke of José Suarez, “may not know what it’s doing. But it surely meant for Mary Ann Tierney to have this baby
if
her parents want her to.

“This is an anti-abortion statute, dressed up in deceptive platitudes like ‘bringing our families closer.’ So let’s treat it like what it is, instead of rewriting it so we can pretend it’s something else.” Pausing, he spoke to Caroline, as if to challenge her. “Congress is practicing medicine—badly. And all this rapture about ‘family’ defies reality. This law is unconstitutional, and has to go.”

It was, Caroline conceded to herself, a reasonably succinct— if one-sided—condemnation of the social policy which underlay the act. But it was short on law, and long on ego: effectively Marc Bernstein was asking Caroline, whom he acknowledged as his equal in intelligence, to match him in clarity and courage. The fact that this might doom her as Chief Justice no doubt accounted for Bernstein’s edgy smile.

“Caroline?” Sam Harker’s voice was tentative. “Your turn.”

Ignoring Bernstein, she turned to the Chief Judge, feeling her colleagues’ stares. It was not every day, she supposed, that they could observe a Supreme Court nominee teetering on the precipice.

In a tight voice that embarrassed her, Caroline said simply, “I’ll pass for now, Sam. I’d like to hear more.”

At once, Lane Steele jerked his head up, eyes bright, mouth forming a skeptical smile. “Pass? Surely, Caroline, you can favor us with
some
thoughts.”

The inquiry was made more scathing by what the others knew of her—that she almost always enjoyed the chance to persuade, and came with her arguments carefully marshaled. Caroline felt herself flush; restraining her pride even as she recalled Blair Montgomery’s warning, she instinctively made a chess move, though to what end she was not sure. “Oh, I have
thoughts
, Lane. Several. What I can tell you now is that I’m very interested in what José had to say.”

Down the table, Suarez looked surprised at this implicit compliment, then pleased. Lane Steele—far more guileful— studied her with open skepticism, as though to divine what her strategy might be. But Steele had little time to wonder: in the order of seniority, the conservatives’ turn to speak had come.

This, Caroline knew, reflected one of the ironies of life as a federal judge. The eleven judges in this room were, in theory, impartial and nonpolitical. But they were appointed by a president with the concurrence of his party and the interest groups which supported it. With exceptions, Caroline’s colleagues represented, in geologic layers of seniority, whether the administration which had appointed them had been Democratic or Republican.

Almost uniformly, Democratic politicians favored abortion rights; overwhelmingly, their Republican counterparts upheld the rights of the unborn. This divide had seeped into the courts, and now would decide the fate of Mary Ann Tierney under a statute designed to unify the Republicans in Congress and—because even many advocates of choice considered parental consent benign, and late-term abortion distasteful—to divide their Democratic rivals. Now the moment to speak had passed to four judges appointed by Republicans: the most senior, and their leader, was Lane Steele, who knew full well how loudly their decision would reverberate in the Senate, which had passed the Protection of Life Act, and which would vote on Caroline Masters.