Protect and Defend (53 page)

“Your turn, Carl,” the Chief Judge told Judge Klopfer.

Breaking from his scrutiny of Caroline, Carl Klopfer said flatly, “I concurred with Lane’s original decision. I still do. So I’ll defer to him.”

On a legal pad, the Chief Judge marked this down. Three to one for Mary Ann Tierney, Caroline thought, though José Suarez was shaky.

The next two Republicans—Mills Roberts and Joe Polanski—fell in line with Steele. The vote now stood three to three.

“Lane?” Sam Harker asked.

Steele arranged the sheets before him, the bones of his argument. But it was clear he did not need them.

“This statute,” he said bluntly, “is constitutional, and to overturn it is to overstep our bounds.

“
Roe
is a sloppy exercise in judicial legislation, expanding an amorphous ‘right to privacy’ found nowhere in the Bill of Rights. But even under
Roe
, Congress can regulate the abortion of a viable fetus.

“That’s what Congress did here. That’s how democracy
works; if the people don’t like the law, they can petition Congress to change it.” His tone sharpened. “
Congress
—not the judiciary, in our self-appointed role as philosopher kings. ‘Unwise’—even if you think that’s what this law is—does not mean ‘unconstitutional.’

“‘Unconstitutional’ is not even a question here: the law provides exceptions for life and physical health, while ‘mental health’ is so amorphous that it means abortion on demand. Which even
Roe
and
Casey
conclude is inappropriate after a fetus—like Mary Ann Tierney’s fetus—becomes viable.”

Caroline listened with respect: at his best, as now, Steele was arresting and persuasive. But at the end of the table, Blair Montgomery stared at the wall, concealing his distaste behind indifference.

“As for ‘unwise,’” Steele continued, “that’s a matter of social policy, not law. But I personally think the policy a salutary one, as personified by the Tierney family. A girl whose sense of social history extends to the erection of the latest shopping mall should not compel us to further sanction a taking of life—which if it occurred in a camp, and not one-by-one in the privacy of abortion clinics, would be perceived for what it is: a holocaust.

“
If that’s
the right to privacy, we should have none of it.”

Abruptly, Steele was silent. Two of his compatriots nodded; a moment passed, and then the Chief Judge wrote down the vote. It was four to three against Mary Ann Tierney, and in favor of the law.

“Franklin,” Sam Harker said wryly to Judge Webb, “care to follow
that
?”

The touch of humor was surely an attempt to lighten an increasing division, but might also, in its tacit compliment to Lane Steele, be a clue to the Chief Judge’s leanings. If so, Caroline reflected, Mary Ann was one vote from defeat.

Franklin Webb, a grizzled African American and the appointee of a Democrat, returned the Chief Judge’s smile. “I was thinking about fishing,” he answered. “Salmon, mostly. Or rainbow trout.”

This mild pleasantry elicited perfunctory and nervous laughter, which neither Caroline nor Steele joined. “As soon as we finish here,” the Chief Judge responded, “you’re free to go. But first you have to vote.”

“Oh,
that
.” Webb furrowed his brow. “I’m torn, frankly. I’ve got some sympathy for Ms. Tierney’s position, and also for Lane’s argument that we’re not the legislature—or God.

“José has pointed one way out. Another is to find the statute unconstitutional as to Mary Ann Tierney—because it ignores a proven risk of infertility to
her
—but not to throw the whole thing out for
every
girl in every circumstance.

“That leaves the law in place, and Congress free to address the infertility question if it wishes.” Glancing at Caroline, Webb smiled again. “I think our pals on the Supremes will appreciate our restraint. They’re as divided as
we
are.”

Sam Harker nodded. “Is that where you sit?” he asked.

“Yup. At least for now.”

Though skimpy on analysis, Caroline thought, the proposal reflected one of Franklin Webb’s many virtues—pragmatism. But this piecemeal approach would leave the law, and those affected by it, in confusion.

Nonetheless, Mary Ann had gained a vote, however tenuous, and the count was four to four. But the votes against her were firm: two of those for her were wobbly and too inconsistent in their reasoning to support a consensus opinion. That left three judges: Blair Montgomery, the Chief Judge—and Caroline herself.

“Blair?” the Chief Judge murmured.

Leaning forward, Montgomery addressed Franklin Webb. “I appreciate your concerns, Franklin. But you’d also leave some basic principles unclear. Let me suggest a few.”

Though strained with age, Montgomery’s voice was firm. “I’ll start with the right to privacy. Here“—Blair glanced at Steele—“I disagree with Lane.

“There
is
a right to privacy, and the fact that the Bill of Rights doesn’t contain those exact three words ignores the obvious.” Pausing, Blair’s tone became harder. “There are some places the government doesn’t belong. Because if a court can order a minor to have a severely defective fetus—at whatever risk to her—it can order her to abort one. And none of us believes in that.

“Lane would tell us that there’s a difference—the government can protect ‘life,’ not take it. But at what cost? The Bill of Rights doesn’t say the government can’t sterilize minor girls at will, and yet we
know
they can’t. So why, in an area as
private as this girl’s reproductive capacity, can the government place her fertility at risk against
her
will?”

Despite her apprehension, Caroline repressed a smile: whether one agreed with Blair Montgomery or not, his power to provoke fresh thought remained undiminished. She sensed the waverers listening closely.

“The government should not do so,” Blair continued. “And a statute which requires that will impinge on a host of
other
judgments better left to girls and their doctors.

“
Not
, I might add, to their parents. Healthy families may have many virtues, but Congress can’t create them. Let alone convert an abusive family into the Brady bunch.” With an ironic smile, Blair turned to Lane Steele. “As for Professor Tierney’s manifest virtues, Lane, they lie in the area of moral debate. But it is possible that moral passions can blind the best man to injustice—even one right under his nose. The fact that a
different
father might perceive that suggests how arbitrary this statute really is. And why it can’t be saved.”

Caroline watched Steele’s jaw tighten. The vote stood at five to four in favor of Mary Ann, with the Chief Judge coming next.

“Well,” Sam Harker said with real humility. “This
is
a hard one, the kind I’ve gotten too old to enjoy. Especially when what I remember most clearly are my mistakes.

“But,” he continued in a reluctant tone, “I’m forced to agree with Lane.

“We can’t function as a legislature. If there are anomalies, they should be addressed by Congress. That’s my bottom line.”

And so it was, Caroline thought. Sam Harker was a man of kind intentions, but no one had ever accused him of profundity.

Now it was down to Caroline.

Around the table, the others faced her. She felt her heart beating faster.

She took a sip of water, then turned to José Suarez. “Where do
you
sit, José? In cement, or on the fence?”

Suarez gave her a prim smile. “I’m Don Quixote,” he answered, “in search of an honest compromise.”

Caroline nodded, facing Franklin Webb. “What about you, Franklin?”

Amidst the general nervousness, Webb summoned a smile. “Still on the fence,” he said. “Hoping I don’t fall and crack my skull.”

No help there. In the end, what happened would be
her
doing. As she had always suspected.

Caroline inhaled. “Here’s the problem,” she said to Webb and Suarez. “At least as I see it.

“The two of you are trying to save the statute on a very narrow point—by ‘clarifying,’ or by rejecting, a specific requirement drafted to be more stringent: a ‘substantial risk to physical health.’ But that won’t become the consensus of this court. We have five judges supporting the law as written, and three who say there’s no way to fix it on several different grounds. And even Franklin believes there’s no way to fix it when it comes to Mary Ann.”

Nodding, Webb acknowledged this reality, while José Suarez regarded her with apparent suspicion. “And so?” Suarez asked.

“And so,” Caroline answered, “if we’re going to have a majority opinion, one or both of you will have to decide which approach you’re least unhappy with: Blair Montgomery’s or Lane Steele’s. Otherwise, we’ll have one of those messes the current Supreme Court is becoming famous for—a plurality opinion, with so many conflicting voices that, while Mary Ann Tierney either wins or loses, going forward no one
else
will know what we’ve really said. And, therefore, what the law is.”

At this, Franklin Webb leaned forward, eyes alight with curiosity. Across the table, Caroline saw Lane Steele tensing.

“True enough,” Webb told her. “But if
you’re
voting with Lane, our two lousy little votes won’t matter. There would be six votes in favor of the law and against Ms. Tierney, and I really
can
go fishing.”

Caroline felt her chest tighten. But she was as she was.

Facing Webb, she manufactured a fair facsimile of a smile. “I guess I forgot to mention that,” she answered. “I’m voting with Mary Ann Tierney. So I suppose we’d better talk.”

T
WO HOURS
later, after an intense and often contentious discussion ended in a vote of six to five, Caroline had assumed that the senior judge in the majority would assign to himself the task of writing a draft opinion. And so she was surprised when Blair Montgomery announced that—given the complexity of the case and the initial divergence of views—he wished to reflect on the assignment. But, after a few moments reflection of her own, she was distinctly unsurprised when her old friend appeared at her door.

Though his eyes were grave, he summoned a smile. “If it weren’t for what’s at stake here, I’d thank you for the single most entertaining moment in my quarter century as a judge. Lane Steele’s face was a study.”

Caroline, too, smiled. But the reality of what she had done, kept at bay by the stimulus of debate, had left her tired and dispirited. “A study in contrasts,” she answered. “The outrage you saw was followed by sheer rapture at the thought that, however much he deplored my vote, I’m not going anywhere. He imagines being able to taunt us both for years.”

Blair sat down wearily. “I don’t have years—I don’t even buy green bananas anymore. But it was never more apparent that you’d have been a great Chief Justice.”

“Why the past tense? Have I died?” Discarding all attempts at levity, Caroline softened her tone. “Looking back on it, I never really had a choice. No doubt it’s vanity, but I’m hung up on the concept of what a judge is supposed to be. The judge I’ve always imagined would not put this girl’s health at risk just to serve her own needs.”

Blair considered her. “So some of us believe,” he answered
with equal gravity. “But there’ll be hell to pay in the Senate. The only question is how much, and what you can do about it.”

“Very little, I think. I’m going to offer to withdraw, and I expect the President to take me up on it. A few weeks into his term, he doesn’t need a lot of controversy. Let alone a firestorm.”

“Maybe. But I’d like to do what I can to save you.”

Caroline smiled at his doggedness. “It’s a little late,” she said dryly. “Or are you suggesting that I change my vote?”

“No. I’m suggesting you write the opinion.” Pausing, her mentor gave Caroline an intent look which, even more than words, compelled her attention. “If you’re to be condemned, it should be for your words, not mine.
Your
words, I would like to believe, might cause a few fair-minded senators to take a fresh look at the issues. And at you.”

Caroline cocked her head. “A brief for the defense, you mean?”

“In part. But it’s also what’s best for this court. You were kind enough not to mention it, but I’m part of the problem you were addressing in there—I probably hold the record for brave dissents, and sweeping opinions which command only a plurality.

“You’re a consensus-builder, Caroline. That’s why you got Webb and Suarez to go along. But if
you
don’t write the opinion, there’s only a vote behind closed doors, reflecting nothing of the qualities that persuaded those two men to join with you.” Leaning forward, Blair finished quietly, “So do this as a favor to me. And to yourself.”

Touched, Caroline at first could find no words. “I probably should,” she finally answered with a trace of humor. “To tell you the truth, I’ve always thought you were too much of a ‘judicial activist.’” When her mentor smiled, Caroline’s tone grew serious. “I’m grateful to you, truly. For so many things. Including this.”

After Blair left, Caroline sat back, closing her eyes. But only briefly, for there was far too much to do.

First, she would call Clayton Slade to warn him, and to offer the President her withdrawal. Then she must clear her mind of everything; ahead, well into the night, lay hours of thought and writing.

A
T A
little before eight o’clock at night, Caroline put aside all other concerns—her fears for Brett; her offer to withdraw— and wrote the first few passages of her opinion:

“
Whether Congress can bar all postviability abortions for minors absent a ‘substantial’ risk to life or physical health is a question of first impression. Equally of first impression is whether this important judgment can be made by a parent, or a court, rather than the minor or her doctor
.”

Pausing for a moment, Caroline thought of another young woman who had borne a child against her father’s wishes, and of the vibrant woman that child had become. But the mother, she reminded herself sternly, was now a judge.