James Bell - Deadlock

“But the question of humanity,” Foster said, “is one for philosophers or theologians. Not judges.”

“But the state of mind of Sarah Mae Sherman is the issue,” Charlene said. “She believes her baby existed at one point in time. Now, the baby does not exist. That has had a devastating impact on her because the respondents did not disclose all of the relevant information about fetal development. They should have, because it impacted her mental state. Thus, they violated the intent of the informed consent statute. That is why I am asking this court to remand this case for trial.”

And so it went for twenty more minutes. Charlene clearly read Foster. He was opposed to her position. Judge Caplin seemed conflicted. She was most troubled by the silence of the statute on the subject of psychological harm.

The third judge, Gregory Knight, was another Clinton appointee, but something of a maverick. At least that was his reputation. Charlene could not read him at all, and he asked no questions.

Then it was Larry Graebner’s turn to argue. As he spoke, Charlene noticed the judges asked no immediate questions. Apparently, they were deferring to the great legal mind of the Ivy League. Graebner’s argument was no different than that in his brief. But at the very end he dropped his bomb.

“Finally,” Graebner said, “my opponent has tried to open the door on the matter of the humanity of the fetus. This is a code word for personhood, Your Honors, something the anti-abortion forces have been attempting to get the courts to rule on ever since Roe v. Wade. Well, I ask this court not to take the bait. A decision to do so will just add another layer of chaos to what should be a settled area of the law. This case never should have gotten to this point. I urge you to affirm the decision of the district court.”

Charlene wanted to shout. She wanted to scream. She wanted to get up and ask if all sanity had been removed from the justice system. This case was about the nature of Sarah Mae’s harm, and what she was not told about her pregnancy. You could not separate this issue out, like some chef dividing egg whites.

But she did not shout. Instead, she fought to remain calm as the judges filed from the bench.

And then she saw one of them, Knight, glance down at Larry Graebner and smile.

Millie found Riley in his chambers. “Can we talk?”

Riley motioned for her to enter. She did and closed the door, as his two law clerks watched with somewhat bemused expressions.

“I guess I owe you an explanation,” she said.

His eyes were indeed full of expectancy, though it was of an angry sort. “I guess maybe you do.”

“I did a lot of thinking this summer,” Millie said. She paused, looking at him, wondering if he might say something. Some word of encouragement perhaps. He was as silent as stone. “I found occasion to reassess a number of things,” Millie continued.

“Apparently so,” Riley snapped.

She reached down into her heart, heavy inside her like a wet rag, for the affection she had for him. “Tom, I value our friendship. I always have. I don’t want anything to interfere with that.”

“We’re talking justice to justice now. Put personalities aside.”

“All right.”

“What on earth has caused you to change your mind so radically on the Establishment Clause?”

With her palms Millie smoothed her skirt. “I thought it through again, Tom. Believe me. I’ve spent weeks poring over the cases.”

“But you’re a ten-year veteran, with a record that is clear and consistent. You don’t just wake up one morning and say, ‘Gee, I guess I’ve been wrong all these years.’ Do you?”

“Perhaps I do.”

Riley waited for an explanation.

“Tom, I have become a Christian.”

The austere silence of Riley’s chambers seemed suddenly ominous. Only the muted whir of the air system tethered Millie to an outside reality. The old justice sat frozen for an extended moment, and then said, “This is rather stunning news.”

“I know. I – ”

“Christianity? At your age?”

“It’s not an age issue,” Millie said. “It is a matter of seeing things in a different way.”

“But why now?”

“I suppose the accident started it. It caused me to reflect on things. And on it went from there.”

“Your mother dying, which we were all sorry to hear. Maybe that had something to do with it.”

Millie nodded. “No doubt.”

“Have you thought,” Riley said, “that such a traumatic event may have…” He waved his hand in the air, diplomatically.

“Caused me to break down mentally?” Millie finished for him.

“No, not that. But these things can throw us off.”

“Tom,” Millie said, gathering all the earnestness she could. “I don’t feel off. I might have thought that once. But I’ve been approaching this like I would a case that comes before us. I’ve been reading and analyzing and taking notes. But I’ve also been praying and trying to listen. I know how odd that may sound to you, but I just believe it, Tom. I am a Christian because I believe it.”

Riley said nothing. If he was reflecting on anything, Millie thought, it was probably his sudden demise into the Court’s minority on religion cases.

“And now you’re suddenly what?” Riley said. “A Bill Bonassi-type justice?”

“I am not a type,” Millie said.

“Don’t be naive, Millie. You know how it is. People depend on the Court. They sense what it is doing and adjust. You have been the swing vote on many crucial occasions. We all know that. The people know that. If you veer off in another direction all of a sudden, it’s going to wreak havoc.”

“I don’t see this as veering off.”

“Why not? You’ve done a 180 on Establishment. A complete turnaround. What are you going to do with, say, abortion? You’ve always supported a woman’s right to choose. Do you still?”

The directness of the question hit her hard. “Just because I am a Christian doesn’t mean I am going to change my approach. I always take any issue as it comes up, case by case.”

Silence for a moment, then Riley’s tone became fatherly. “Millie,” he said, leaning forward the way a concerned counselor would. “We’ve known each other a long time. You know how fond I am of you. And I understand what it’s like to go through difficult, confusing times in life. When my wife died in ’92, it was terrible. But I got through it. And I didn’t drop off the face of the earth. I didn’t change my entire life. I went on, the way I always had. And you can do the same.”

“I can only promise,” she said, “that I will take great care how I decide cases, as always. I will not change the way I approach research and deliberations. But” – she looked at Riley, into the blue, intelligent eyes she knew so well – “we may not always agree like we used to.”

“I hope,” Riley said without hesitation, “it won’t come to that. But if you suddenly throw this Court off in the opposite direction…” He shook his head. “I don’t want to have to fight you, Millie.”

His words, almost whispered, hit her like a car slamming into her. Yes, that was it. Like her accident all over again. Her throat tightened. “I would hope there won’t be a rift,” she said.

But there was. She knew it.

Fall storms pummeled the east for four days after that. But on Monday the sky was clear and blue, as if to signal a fresh start for the business of the Court.

By the time Millie was in her chambers, ready to engage in legal research on an issue of interstate commerce, she felt she was coming out from under a dark cloud. Perhaps the storm of Tom Riley’s reaction would also blow over, and she could get back to business as usual.