Con Law (4 page)

Mr. Stanton: ‘And that’s exactly what they did in
Roe
. The Court can’t
interpret
words that don’t even exist.’

‘Ms. Garza, doesn’t Mr. Stanton make a good point? If the Framers of the Constitution—’

‘White men.’

‘Yes, we know that, Ms. Garza. If the Framers wanted to give a woman the right to have an abortion, wouldn’t they have just written it into the Bill of Rights?’

‘Their misogynistic belief system prevented them from considering the plight of women, just as their racist attitudes prevented them from freeing the slaves.’

‘All right. Let’s assume that to be true, that our Founding Fathers were unable, due to their upbringing, their religious beliefs, their views about women’s place in society … for whatever reason, they were incapable of including a right to an abortion in the Constitution. Now, fast forward to nineteen seventy-three. Women may vote, use contraceptives, attend law school. States are liberalizing abortion laws. Why didn’t the Court just say to Roe, “We’re sorry, but the Constitution does not address abortion. Therefore, you must take your complaint to your state legislature to change the law.” Isn’t that the correct action for the Court to take, to defer to the democratic process?’

‘Changing the law through fifty state legislatures would have taken decades, and without a national abortion right poor women
like Roe might have to travel to another state to obtain an abortion. A Supreme Court opinion is the law of the land. It changes the law in all fifty states in a single moment. Like that.’

She snapped her fingers.

‘But, Ms. Garza, isn’t the appropriate avenue to a national abortion right a constitutional amendment? The Constitution has been amended twenty-seven times to add the Bill of Rights, end slavery, guarantee the right to vote to women and persons of all races, create an income tax, begin and end prohibition … Why not abortion?’

‘Because the justices knew right-wing religious nuts would block a constitutional amendment granting women the right to an abortion.’

‘But isn’t that the nature of democracy? We the people determining our own rights?’

‘Not when they the Republicans deny me my rights.’

‘But what do you do in a democracy when you can’t convince a majority that you should in fact possess a particular right?’

‘I do what Roe did—I get the Supreme Court to give me the right I want.’

‘So, in a nation of three hundred twenty million people, nine unelected lawyers sitting as the Supreme Court should circumvent democracy by removing certain issues from the democratic process and declaring those issues constitutional in nature?’

‘Yes. And it only takes five justices to win.’

‘But by removing abortion from the democratic process, didn’t the Court poison political discourse in America? Abortion wasn’t even part of the political conversation before
Roe
. Now it’s a litmus test for judges and politicians, and it has polarized the nation.
Roe
didn’t settle a political fight; it started one.’

‘It gave women control over their reproductive decisions. Just like men enjoy.’

‘Oh,
yeah,’ Mr. Stanton said from the back row. ‘We’ve got it real good. A girl lies about being on the pill, and we’re paying child support for the next eighteen years. Try telling that to your dad.’

Another awkward silence captured the classroom.

‘Uh, okay, let’s move on. In nineteen ninety-two, after two decades of protests, political fights, and contentious judicial nominations, the Court again took up a major abortion case,
Planned Parenthood v. Casey
. The Court’s stated intent was to put an end to the abortion wars in the country. In a five-to-four decision, the Court reaffirmed
Roe
but allowed the states more leeway in regulating abortions. Justice Kennedy’s lead opinion appealed to the American people to respect their decision and accept a woman’s right to an abortion as the law of the land, a lawyer’s way of saying, “Trust us. We know what we’re doing.”’

Ms. Roberts jumped back into the fray.

‘How are we supposed to trust those guys when Kennedy can write that nonsense in
Casey
?’ She read off her laptop: ‘Quote, “At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life.” Really? Maybe it’s just me, but it’s hard to imagine Jefferson or Madison saying goofy stuff like that.’

Mr. Stanton, from the back row: ‘I said goofy stuff like that back in college, but I was stoned at the time. I made a video and posted it on YouTube, got a hundred thousand hits.’

‘And you still got into this law school?’

‘Rich daddy,’ Ms. Garza said.

Mr. Stanton shared a fist-bump with his buddies.

‘Was Kennedy like that when you clerked for him?’ Mr. Brennan asked.

Book’s clerkship for Justice Kennedy had made him a hot commodity among constitutional lawyers because Kennedy was often the swing vote in crucial five–four decisions.

‘I
came on board ten years after
Casey
. Kennedy was just trying to broker a peace in the abortion war. He respects the Court, and he wants the people to respect it as well.’

‘Too late for that,’ Ms. Garza said. ‘We’re not stupid. We know the Court’s just another political branch.’

‘The Constitution is just politics?’

‘Professor, everything is just politics.’

Book felt as if he had just been told that the love of his life had cheated on him. The Constitution is just politics? The Court no less partisan than the Congress? Ms. Garza read his mind.

‘The only difference between Congress and the Court is that we can vote those Republican bastards out of Congress.’

‘Mr. Stanton—’

He looked up from his texting.

‘Ms. Garza is mistaken, isn’t she?’

‘In so many ways, Professor.’

‘Make your case.’

‘First, her T-shirts are getting old. Second, she—’

‘About the Court being a political branch.’

‘Oh. The Court is perceived as being political because the justices subverted democracy in
Roe
. In America, we don’t stage violent protests and burn down cities when our side loses an election. We organize for the next election. But we want to vote. The people didn’t get to vote on abortion.’

Ms. Roberts again: ‘As Scalia said in his
Casey
dissent, quote, “value judgments should be voted on, not dictated.” And quote, “the people know that their value judgments are quite as good as those taught in any law school—maybe better.” I like that.’

Ms. Garza again glared at her classmate.

‘Now you’re quoting Scalia? Jesus, Liz, you wouldn’t talk for eight months, now you won’t shut up. Quote this.’

Ms. Garza jabbed her middle finger at Ms. Roberts.

‘Unacceptable, Ms. Garza. An apology, please.’

‘Oh,
I’m really fucking sorry, Ms. Roberts.’

That constituted sincere for Ms. Garza.

‘Civility, people. This is a classroom, not the Supreme Court conference room on decision day. Ms. Garza, your rebuttal to Mr. Stanton’s case—the rebuttal that does not include your middle finger.’

‘Two generations of women have grown up with total control over their reproductive decisions, both contraceptives and abortion. If men get to vote on our right to abortion, they’ll take that right away from us. Then they’ll take the right to use contraceptives. Because men want desperately to control women—our lives, our liberties, our work, our pay, our sexual activity, our bodies, and most of all, our wombs.’

Mr. Stanton: ‘Trust me, I don’t want anywhere near your womb.’

The class laughed. Ms. Garza did not.

‘Stanton, you’re just mad because women won a right to an abortion.’

‘I’m mad because the liberal justices hijacked the Constitution—they made it up!’

‘You don’t know that.’

Mr. Stanton pointed down at Book. ‘He said so in his last book.’

Another round of laughter.

‘How do you know I’m right?’ Book said.

‘Because you’re down there lecturing, and we’re up here taking notes.’

More laughter.

‘How do you know I’m not just another tenured professor pushing my personal political beliefs on his captive audience of impressionable students?’

‘Because you’re not teaching over in the English department.’

The entire class laughed and let out a collective sigh of relief when the bell rang. They rose as one and gathered their belongings. Book yelled over the noise.

‘Read
National Federation of Independent Business v. Sebelius
, aka Obamacare, for the next class.’

The mass of
students parted like the Red Sea before Moses. Half rushed for the doors. The other half surged down to the front and around Book, peppering him with questions and pushing copies of his latest book,
Con Law: Why Constitutional Law is the Greatest Hoax Ever Perpetrated on the American People
, for him to sign. It was currently number one on the
New York Times
nonfiction print and digital bestseller lists.

‘Professor, would you sign your book for my mom? Her name’s Sherry.’

He signed the book with a Sharpie. Another came forward.

‘Sign my book, for my dad. Ken.’

He signed. Another hand came forward.

‘Sign my Kindle.’

‘Your Kindle?’

‘I have your e-book on it.’

He signed her Kindle. She then stepped close and held out her cell phone in front of them.

‘Can I take a picture of us? For my dad? He said when you’re on the Supreme Court—’

Book had made many shortlists of potential candidates.

‘—you’ll straighten those crazy bastards out.’

She snapped a photo.

‘My dad never misses you on those Sunday morning talk shows. He loved that line yesterday on
Face the Nation
—’

Book had participated via a satellite feed from the local Austin studio.

‘—when you told that senator that you were neither liberal nor conservative, Republican nor Democrat, but that instead you were the last known practicing Jeffersonian in America.’

‘It wasn’t a line.’

The students drifted off. Book gathered his casebook and notes and walked out the door and down the narrow corridor crowded and noisy with aspiring lawyers chatting about their lucrative
job offers from large law firms. Thirteen years before, he had walked the corridors of Harvard law school, aiming to do something important with his life, perhaps even to change the world. But not to get rich. Money had never motivated him. He had found that he needed few material things in life. He lived in a small house near campus. He had acquired the Harley secondhand and made it his own. He had never owned a car, and he no longer owned a suit. Having things meant nothing to him. Doing things meant everything. And he did everything at a fast pace.

Because he knew he didn’t have much time.

‘Get
a haircut, Bookman.’

Book took the stairs two steps at a time, so he was quickly past the white-haired man dressed immaculately in a suit and tie walking down the stairs. He was the dean of the law school.

‘Right away, Roscoe.’

Tenure had earned Book a fifteen-foot-by-twenty-foot office, a lifetime salary, a secretary, and the right to wear his hair long. He arrived at the fifth floor, turned a corner, ducked between students, and entered the front room of the two-room office suite where a middle-aged woman wearing reading glasses secured to her neck by a glittery strand of beads sat at a desk and held a phone to her ear.

‘Here he is,’ Myrna said into the phone. She covered the mouthpiece and whispered, ‘The police. Again.’

Book put the phone to his ear. ‘John Bookman.’

‘Yeah, uh, Professor, this is Sergeant Taylor, Austin PD. We found your mother.’

‘She wandered off again?’

‘Yes, sir. She was at the mall. Victoria’s Secret. Walked out with an armful of lingerie, said she had a date tonight. They called us,
we took her home. I called your sister. She’s on the way. I’ll stay till she gets here.’

‘Thanks, Sergeant.’

‘Don’t mention it. I worked with your dad.’ He paused. ‘Uh, Professor, I don’t mean to mind your business, but you should really consider putting your mom in a home. Folks in her condition, they wander off, get lost, end up outside all night. One day we might not find her in time. Your dad wouldn’t have wanted that.’

Book thanked the officer and hung up the phone. He could not abide the thought of his mother in a nursing home. Myrna regarded him over her reading glasses.

‘You okay?’

He wasn’t, but he nodded yes.

‘Messages?’

Myrna held up pink call slips. ‘Fox wants you on the Sunday morning show, by satellite. To debate the Supreme Court’s decision on Obamacare.’

‘With whom?’

‘McConnell.’

‘Again? After our last debate?’

‘He’s a politician, doesn’t know you made him look like a fool.’

‘Wasn’t exactly hard work.’

‘And
Meet the Press
wants you to debate Schumer.’

‘Him, too?’

She shrugged. ‘They’re gluttons for punishment.’

‘What else?’

‘They’re stupid, they’re egomaniacs, they’re—’

‘The messages.’

‘The
Wall Street Journal
and the
New York Times
want your comments on the case.’

‘When?’

‘Today. Front-page articles in tomorrow’s editions. And you’re late for the faculty meeting.’

Myrna
reached down to her oversized purse and came up again with a sealed plastic container. Several years back, she started bringing him leftovers from dinner the night before because he ate protein bars for breakfast, bachelor and all; it was now a daily ritual.

‘Chicken quesadillas,’ she said.

‘With your guacamole?’

‘Of course.’

‘Thanks.’

‘Stu said I should charge you, even if they are just leftovers.’

‘Remind Stu that I didn’t charge him for his murder case.’

A year before, Myrna’s husband had accidentally run over an armadillo in his four-wheel-drive pickup truck. An animal-rights activist, which is to say, a resident of Austin, had witnessed the ‘murder’ and called the police. The district attorney, up for reelection, charged Stu with animal cruelty. Book defended him and won an acquittal.