Solomon & Lord Drop Anchor (23 page)

OLIVER WENDELL HOLMES JR. SAT HERE. Oh, not
in this chair. Not even in this building, if we’re being tediously
literal about it, Sam Truitt thought.

But Holmes sat 
here
, at the far
end of the bench, to the chief justice’s left, when he was the
junior justice on the Supreme Court of the United States.

So what the hell am I doing in old Ollie’s
chair?

Which was also, at various times,
figuratively at least, the chair of Brandeis, Cardozo, Black,
Frankfurter, and Brennan. Giants of jurisprudence whose thundering
pronouncements were engraved in stone for the ages. Men of soaring
intellect and towering integrity.

How will I even begin to measure up?

It was a rare moment of insecurity for Sam
Truitt, who frequently was described as egotistical and vain, even
by his friends. His enemies called him a left-wing, Ivy League
intellectual snob who was out of touch with the real world. But
friends and enemies alike agreed that he was brilliant and
eloquent. His opponents feared that eventually, with a long enough
tenure, he would be worth two or three votes on the Court, using
his superior intellect and persuasive skills to sway others.

At the moment, though, Truitt wasn’t capable
of persuading cats to chase mice. Deep in a crisis of confidence,
drowning in waves of self-doubt, he was an imposter, a graffiti
artist in the Louvre, a trespasser in a shrine.

Though he was a broad-shouldered man, over
six feet and two hundred pounds, a former athlete still fit at
forty-six, at the moment, he felt he was a dwarf in the imposing,
marble-columned courtroom.

Sam Truitt still had not recovered from the
confirmation process. Looking back now, the stinging vitriol of the
personal attacks had caught him by surprise. On CNN and before the
Senate Judiciary Committee, the Republicans hauled out their
hatchet men, and the sound bites dug deep wounds. He remembered his
discomfort at being grilled by Senator Thornton Blair of South
Carolina, mouthpiece for the right-wing Family Values
Foundation.

“So if ah git this right, Per-fessor Truitt,”
Blair droned, waving a fistful of Truitt’s 
Harvard Law
Review
 articles on civil liberties, “you’d hire gay
teachers but ban the Bible in our schools. You’d give away condoms
to our innocent children and take away guns from our law-abiding
citizens. You’d have federal marshals protect baby-killing
abortionists but leave the public defenseless against rapists and
murderers. Does that about sum it up, Per-fessor?”

“That’s a fallacious representation of my
views,” Truitt said, sweating under the lights, sounding uptight
and uncool, even to himself.

“Fal-la-cious, is it?” the senator asked
rhetorically, making the word sound obscene. “When’s the last time
you attended church, Per-fessor?”

“I don’t see the relevance of that,” Truitt
said, backpedaling, trying to keep his feet on a rolling log in a
treacherous river.

“Didn’t think you would,” Blair said, turning
to the committee chairman. “With lawyers as thick as fleas on an
old hound, you’d think the president could find one that reads the
Good Book on Sunday mornings.”

The hate mail delivered to his Cambridge
office had shocked Truitt. Protesters spewed invective and picketed
in Harvard Square, calling him a card-carrying ACLU leftist and a
pornography worshiper who cared more about spotted owls and snail
darters than jobs and families.

Despite the uproar, the Senate had confirmed
him, and if the 53-47 vote was not exactly a resounding vote of
confidence, it should no longer matter. He was appointed for life,
or more precisely, in the words of the Constitution, during “good
Behaviour.”

With a capital B.

Sam Truitt intended to lead an exemplary life
on the Court. He would do nothing to attract the attention of the
Family Values Foundation, which had begun a “Truitt Watch,”
promising an impeachment petition at his first lapse. He had a
single blemish in his past “Behaviour,” one that attracted the
attention of the FBI when he was on the president’s short list for
the nomination. Ten years earlier, a law student named Tracey had
filed a sexual harassment claim against him after he slept with
her, but nonetheless gave her a C in constitutional law. He had
remained true to his academic virtue—if not his marital vows—but
Tracey believed he had not held up his end of the unstated
bargain.

In truth, she had seduced him, but still, he
had violated university rules. Stupid.

With a capital S.

In case he didn’t know just how stupid, his
wife, Connie, had fixed him with that icy, New England smile and
said, “Next time you screw a student, Sam, spare me the humiliation
and give her an A.”

Before the misconduct claim could be heard,
Tracey dropped out of law school, sparing him an ethical dilemma.
Would he have told the truth?

Sure I screwed her, but she wanted it.

Oh, brilliant. Just brilliant. Want some
more, Dean? The 
Veritas
, the whole 
Veritas
,
and nothing but the 
Veritas
.

While I was grading her paper on the
legality of strip searches at border patrol stations, she came into
my office and pulled up her skirt. “Want to pat me down, Officer?”
She was young and willing and hot, and God help me, I’m just a
man.

With a small m.

Or would he have lied?

I never touched her. She is obviously a
deeply troubled young woman with an overactive imagination.

That would have violated his principles, but
thankfully, he never had to confront the question. Ironic, he
thought how his personal life did not live up to his professional
standards.

Now, he had taken a vow of monogamy, which in
his marriage was akin to a vow of chastity. When he told this to
Connie, she laughed and said, “Don’t forget poverty. You’ve taken
that vow, too, and dragged me with you.”

Poverty to Connie meaning the inability to
afford a summer home in the Hamptons.

But he was serious about living a blameless
life. No scandals in or out of Court. No ammunition for the
Foundation’s muskets. He wanted a long, productive career, writing
cogent opinions that would live forever in our jurisprudence. He
wanted to join the thirty-year club with Marshall Story, Holmes,
Black, Douglas, and Brennan.

I’ll drive my enemies crazy and then
out-live them.

But that morning, Truitt was worried about
getting through his first day, not his first decade on the Court.
He felt as if he had sneaked into the ornate building. Just after
dawn, he’d come up the steps and paused before the giant six-ton
bronze doors. Even earlier, he’d sat on a bench on the oval plaza,
the Capitol glowing behind him in the rosy early morning light. At
the base of the flagpoles, he’d noted the scales of justice, the
sword and book, the mask and torch, the pen and mace. He’d gazed up
at the two marble figures flanking the steps, seated as if on
thrones, Justice on one side, Authority on the other. Above him,
sixteen huge marble columns supported a towering pediment with a
sculpture of an enthroned Liberty guarded by other symbolic
figures. Atop it all was engraved the lofty phrase, EQUAL
JUSTICE UNDER LAW.

In a place where the figures were carved from
marble, he had feet of clay.

It was a building to be entered triumphantly
on the back of an elephant, following a cavalcade of golden
trumpets and shimmering banners. Instead, he felt like a thief in
the night.

And now, Samuel Adams Truitt—at least the
name sounded like he belonged here—sat in Holmes’s chair at the
wing-shaped bench of gleaming Honduran mahogany, looking toward the
heavens, or at least toward the four-story-high coffered ceiling,
when he heard the voice of God.

“Justice Truitt!” the voice boomed.

Chief Justice Clifford P. Whittington both
sounded and looked like God, if you pictured the Creator as a
sixty-seven-year-old Iowan with a barrel chest, a rugged profile
that, like the statues, could be carved from marble, and long, wavy
white hair swept back and curling up at the neck.

Startled, Truitt swiveled toward the front of
the courtroom. “Chief,” he answered.

The chief justice strode toward the bench. He
looked vigorous enough to vault the bronze railing that separated
the public section from the lawyers’ gallery.

“Getting a little head start on the rest of
us?” the C.J. bellowed, his deep voice resounding in the cavernous
chamber. “Or just walking the field before the game?”

The game.

The sole point of common ground between the
two men, Truitt thought, was that they both had played football in
college. Whittington had been a lineman at Yale in the days before
face masks—though some liberal academics claimed he played too long
without a helmet—then went to Oxford as a Rhodes scholar. He was a
Renaissance man, a throwback, a midwestern farm boy who beat the
eastern intellectuals on their turf at their game. He liked to
think of himself as a common-sense judge with traditional values.
Truitt considered him rigid, small-minded, and mired in the
past.

Truitt also knew that the chief had huddled
with Senator Blair, feeding him damaging questions for the
Judiciary Committee hearings. If there was one man in America that
Whittington did not want on the Court, it was the glamour boy from
Harvard who appeared on even more news shows than the biggest
publicity slut on the Court, Whittington himself.

“It’s customary for the chief justice to chat
privately with a new member of the brethren,” Whittington said,
somewhat ceremoniously. By this time, Truitt was making his way
down from the bench. It didn’t seem proper to have the chief
looking up at him.

“Can we still call ourselves brethren when we
have two women on the bench?” Truitt asked with a smile.

“I don’t know,” the chief replied with a
malicious grin. “I hear you’re the expert on sexual harassment,
Professor.”

Touché.

“I just figured you were doing some field
research,” the chief continued, eyes twinkling.

“Actually, I’ve written extensively about sex
discrimination,” Truitt said.

“So you have. I read your piece on the
male-only military college case. You didn’t much care for my
dissent.”

“I just thought it was too late in the day to
allow a public college to bar women. The states can no longer
discriminate based on gender, race, or sexual preference.”

“‘No longer’? I rather like that term. It
implies that the Court has changed, which it damn well has. But the
Constitution hasn’t changed, except for those twenty-seven
amendments. So, how do you explain it Sam? How did we get so far
from the framers’ original intent?”

“We haven’t. They simply weren’t faced with
these questions in the context of the current era. If Madison or.
Jefferson were alive today, I doubt they’d disagree with giving
women the right to vote which took an amendment to their
Constitution. I wrote a piece called, ‘Whose Original Intent?’ in
which—”

“Read that one, too, and didn’t agree with a
damn thing. As for your forays into legal realism, inviting judges
to ignore precedent and use the social sciences to shape our lives,
well it’s just plain dangerous. Then there’s your essay on legal
pragmatism. There are no grand foundational principles, eh Sam.”
The chief raised his bushy eyebrows. “Being a legal pragmatist
means never having to say you have a theory.”

“That’s a bit of an oversimplification.”

The older man beamed a photogenic,
white-toothed grin. He was still tan from a summer at Martha’s
Vineyard, where he enjoyed tweaking the noses of Boston’s liberal
establishment at clambakes and cocktail parties. Truitt looked
directly into the chief justice’s eyes. The two men were the same
height, six two, though the chief probably weighed twenty-five
pounds more than Truitt.

“You probably think I’m a troglodyte,” the
chief said.

“I think you like getting a rise out of
people, particularly the junior-most justice.”

“Well, you’re not wrong about that, but I
mean what I say. You know what makes me a good judge, Sam … hell, a
great judge?”

“Modesty?” Truitt ventured.

Whittington laughed. It was a big man’s
laugh, water tumbling over a falls. “Because I don’t have an
agenda. I don’t give a rat’s ass if a woman has an abortion. But I
object to this Court finding a constitutional right of privacy when
the sacred document doesn’t mention the word.”

“Needless to say, I—”

“Save your breath, Sam. I know your
position.”

Truitt wondered what the judicial conference
would be like, the chief’s thunderous voice shouting down all
dissent. He was reminded of Samuel Goldwyn’s famous line to a young
screenwriter: “When I want your opinion, I’ll give it to you.”

“I’ll tell you something else,” the chief
rumbled. “
Miranda
 is a disgrace. Hell, now the cops
have to urge a defendant 
not
 to confess. I’d
overrule the so-called exclusionary rule, too. If the constable
blunders, why should the criminal go free?”

“I suppose you’d like to do away with the
Fifth Amendment privilege against self-incrimination.”

“Not entirely,” Whittington said, without a
trace of irony. “But what’s the trial judge required to do when a
defendant doesn’t take the stand?”

The old buzzard’s treating me like a
first-year law student.

“The judge instructs the jurors that they’re
not permitted to draw an adverse inference from the defendant’s
failure to testify,” Truitt said, straining to keep the annoyance
out of his voice.

“Doesn’t that just fly in the face of common
sense? Why shouldn’t the jury consider just why the little weasel
didn’t even try to contradict the evidence against him?”