Supreme Courtship (16 page)

Justice Morris “Mo” Gotbaum had been, until joining the Court, senior senator from New York. He was a famously soft touch when it came to staying executions, having granted seventy-eight stays so far. This caused tensions between him and Silvio, an ardent champion of the ultimate sanction. Silvio kept a little guillotine cigar-cutter on his desk—for the amusement of visiting children (he claimed). Mo never missed an opportunity to tweak him. Once during oral argument in a case involving a public school teacher who had been fired for expressing a favorable opinion about Intelligent Design, Mo had asked the teacher’s attorney, “If Intelligent Design exists, how would you explain the U.S. Tax Code?”

In other ways, Mo was atypical for a New York Jewish liberal. His great passion in life was putting on black leather and touring the country on a Suzuki Rocket motorcycle—he privately called it his Crotch Rocket—with his wife, Bella, hanging on behind for dear life. He faithfully attended the annual biker rally in Sturgis, South Dakota, every year and gave passionate, well-footnoted speeches to the bikers, calling for a motorcycle exception from the national speed limit. When bored during oral arguments, which he frequently was, he would hum “Born to Be Wild.”

Crispus Galavanter was second in juniority to Pepper. He occupied the “black seat” on the court, though it is seldom openly referred to as such. He had first come to prominence in an unusual way: by taking on the Ku Klux Klan—Web site slogan: “Bringing a Message of Hope and Deliverance to White Christian America! A Message of Love NOT Hate!”—as a client.

The Klan had wanted to open a store in a mall in suburban Boise, Idaho, where it could sell Klan notions and memorabilia, his and hers ceremonial robes and caps, dinner-table flaming crucifix candelabra, hangman noose light switches, Third Reich memorabilia, reissues of
The Protocols of the Elders of Zion
, manuals on breeding pit bulls and Alsatians, and other heartwarming gewgaws. The mall owners, however, perhaps seeking a more elevated tone, refused to rent them space.

Crispus, then a young local attorney, volunteered to handle the Klan’s case “for costs.” The Klan was initially somewhat taken aback, but after some head-scratching and palavering decided what the heck, they might look kind of good in court if they had themselves a smart “colored” lawyer, so they said, okay, just so long as we don’t have to eat with you or share bathroom facilities, and forget about dating any of our daughters. No problem at all, Crispus said. Put it out of your minds. You concentrate on spreading that message of love to White Christian America and let me deal with these small-minded mall owners.

He was brutally pilloried in the press for his efforts on behalf of the Idaho Klan, accused of all manner of outrageous grandstanding, called all sorts of names, about the mildest of which was Black Judas. Through it all Crispus smiled and kept his head down and diligently argued his client’s case. He framed it as a civil rights case and fought it all the way up to the Idaho Supreme Court.

In his argument before the state’s highest court, Crispus eloquently championed his client’s views on the superiority of the white race; Jewish control of the media, the international banking system, and bottled drinking water; the Vatican’s secret deal with NASA to put a Catholic on Mars; and Occupational Safety and Health Administration regulations that required filling out endless, unnecessary paperwork before burning a cross on public land. By the time Crispus was finished, he had all the judges doubled over with laughter. They ruled in favor of the mall, made the Klan liable for the mall owners’ legal costs. Crispus thereupon smiled and presented the Klan with a bill that, coincidentally, amounted to one dollar more than it had in the bank. It filed for bankruptcy.

When questioned about whether his representation of the Klan was consistent with a lawyer’s duty to represent his client vigorously, Crispus would say that he had made precisely the arguments the Klan had wanted made, and that the fee he had charged was reasonable. As for the Klan, it was entitled to full consideration of its legal claims, and that legal consideration had destroyed it.

Crispus was appointed to the federal bench and a few years later moved on up to the high court. He golfed with Tiger Woods.

CHAPTER 15

T
hree years earlier, a man named Jimmy James Swayle had walked into the Rough River Savings and Trust Bank in Hotbridge, South Dakota, and presented the teller with a note written in incongruously polite language.
Pleace hand over $TEN THOUSDAND or I will be compelt to shoot the poor customers. Sorry for the inconvenients. Hurry up OK.

The teller duly activated the silent alarm and, reciprocating Mr. Swayle’s politeness, insisted on counting out his request in one- and five-dollar denominations, apologizing for not having larger bills. Presently, Sheriff’s Deputy Edward Fogarty entered the bank with drawn shotgun and commanded Mr. Swayle to drop his weapon and lie facedown on the floor. Mr. Swayle pointed his pistol at Deputy Fogarty and pulled the trigger. The gun, a Rimski
9
mm semi-automatic, failed to fire. Deputy Fogarty walked over to Mr. Swayle, gave him an understandably robust butt in the face with the shotgun, and hauled him unconscious off to the pokey.

After a not very long trial, Jimmy James Swayle was found guilty of attempted armed robbery and murder and sentenced to twenty-five years. And there, but for the genius of the American legal system, the books might have quietly closed on a not distinguished criminal career. However . . .

. . . a second-year law student doing a project at the state penitentiary advised Mr. Swayle to file suit against the Rimski Firearms Corporation on the grounds that their product, which he had legally purchased, had failed to function properly “during a business transaction,” causing him not only loss of income but also significant psychic and physical distress, entitling Mr. Swayle to damages under South Dakota law. Since Mr. Swayle was a citizen of South Dakota and Rimski was a Connecticut corporation, Mr. Swayle was able to bring suit in federal court. The case had worked its way up the judicial ladder from the district court, the Court of Appeals, and had finally fetched up on the steps of the U.S. Supreme Court.

Mr. Swayle’s petition for certiorari was just one of about
7,000
the Court receives each year asking to be considered for review. The justices accept only seventy or so of these for oral argument. Four justices have to agree to grant cert in order for a case to be accepted. Generally, the Court accepts only cases that it finds interesting; but sometimes a “what the hell” element seems to come into play. Justices look solemn in their formal black robes, but every so often they like to have a little fun by taking on a strange case, or overturning a presidential election, that sort of thing.

One of Haro’s clerks, knowing of his justice’s zest for embarrassing firearms manufacturers, yanked the Swayle petition from the cert pool pile and brought it to his attention. Haro immediately signed on. Justice Galavanter, who liked a little mischief himself, added his signature. Though it went against her Yankee instincts,
Swayle v. Rimski Firearms
somehow appealed to Justice Plympton. She had written for the majority in
Lestrepo v. Tompkins Compressed Air Injector
. In that closely watched case, the Court ruled that Tompkins, based in upstate New York, was not responsible when one of its air compressors, used at a facility in Alabama, overinflated
10,000
beach balls manufactured in Oregon. Tompkins wasn’t liable, the Court found, because Mr. Lestrepo, a worker inflating the beach balls at the Alabama facility, was an illegally employed alien who couldn’t read the English instructions on the air injectors. It was a controversial ruling, to be sure, and emotionally fraught, since beach balls had been exploding all over the country, ruining picnics, making children cry, and inducing fourteen heart attacks. Plympton approved Swayle’s cert petition. Barry Jacoby, an ardent foe of gun manufacturers, added the fourth signature, and in due course Jimmy James Swayle got word that his case would be heard by the U.S. Supreme Court. This is a big moment in your day if your days—all
9,125
of them—tend to be quite similar: up bright and early, avoid being stabbed for your packet of breakfast jelly, work in the prison laundry, avoid being anally penetrated in the showers.

“Do I get to go to Washington, Warden?”

“No, Swayle. You aren’t going anywhere.”

“But what if I win?”

“Then I’m gonna beat the shit out of you. Now get out of my office.”

News that the Court had granted cert in
Swayle v. Rimski
caused an immediate stir. The Coalition Against a Runaway Judiciary, a Washington-based watchdog group, stridently denounced it.

“By agreeing to consider this case,” declared Fortinbras P. Fescue, executive director, “the Court sends a chilling signal up and down the spine of law enforcement officers throughout the country.” The Fraternal Order of Police also denounced it. On the other side, the American Foundation to Bankrupt Gun Manufacturers made approving noises.

I
T HAD BEEN THE PRACTICE
, in the previous court, for the justices to shake one another’s hand before hearing oral argument, but given the dissensions and strains in the Hardwether Court, this agreeable protocol had fallen into desuetude. Paige Plympton had made efforts to resuscitate it, without success.

Silvio Santamaria refused to speak to Mo Gotbaum, much less shake his hand. In conferences, he wouldn’t even look in his direction. Mike Haro couldn’t care less for pleasantries. To judge from his thousand-yard stare and attendant spearminty aroma, Chief Justice Hardwether was focused on other things. Pepper felt sorry for him. Watching him across the room as the justices prepared to file out in threes and take their places behind the long mahogany bench in the Great Hall, Pepper thought,
He looks like he could use a hug.
But she was nervous enough on this, her first day of oral argument. Somehow she didn’t feel it would be appropriate to go slap him on the back and say,
Hang in there, pard
.

She caught Ruthless staring at her. Pepper instructed herself mentally that she had to stop thinking of her that way, lest it pop out in conversation.
Oh, hey, Ruthless, how’s it going?
Ruthless—that is, Justice Richter—gave Pepper a sort of wincy smile. Justice Crispus Galavanter stood in front of Pepper, who, per her most junior status, was at the back of the judicial choo-choo train. Crispus gave her a companionable wink and smile as if to say,
What
have
you got yourself into?

Precisely at ten o’clock the Marshal of the Court nodded to the justices, held back the red velvet curtain, and pronounced the thousand-year-old French words, “Oyez! Oyez! Oyez! All persons having business before the Honorable, the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

Pepper felt her stomach go tight.
Don’t screw up,
she said to herself.

Her chair was on the end. Your seat gets closer to the middle as you accrue seniority. The night before, she’d come into the Great Hall and rehearsed the simple act of sitting down in it so she wouldn’t roll off the edge or tip over backward on her first day.

She took a deep breath and looked out at the people gathered before the Court. On her right, she recognized various reporters. On her left was where the guests and various—

—
Aw, hell.
JJ and Juanita. They must have flown in to surprise her. JJ was beaming at her as if to say,
You didn’t think I was gonna miss my little darlin’s first day on the Court, did you?

She wondered: did he know that this case was about whether a criminal who’d tried to shoot a sheriff’s deputy had grounds for grievance because his gun had misfired?

Justice Santamaria looked at Jimmy James Swayle’s attorneys. There were three of them, including one with a ponytail, a famous New York lawyer who took on cases just to annoy the law enforcement establishment. Santamaria regarded them as he might a three-course meal that he intended to devour whole.

“You cite
Norbert v. Stigling Auto Parts
,” Santamaria said. Oral arguments plunge right in without preamble. “Where’s the relevance. I don’t see it.”

The ponytailed lawyer said, “The South Dakota Supreme Court ruled that the carburetor made by Stigling—”

“Hold on. You’re comparing a carburetor to a firearm?”

“They are both—”

“Made of metal? I grant.”

“With respect, Justice Santamaria, I was only going to point out,
sub specie aeternitatis
. . .”

“
Sub specie infernalitatis
, I should think,” Santamaria shot back.

Pepper thought,
What in the hell are these people talking about?
Had she been teleported back to the rostrum in the Roman forum?

The lawyer pushed on. “. . . that a carburetor and a firearm, however distinct from a mechanical point of view, are both devices that come with implicit guarantees of functionality.”

“Like an electric chair, say?”

A susurrus of laughter rippled through the Court. Justice Santamaria was frisky today.

The lawyer smiled wanly. “If you will. The relevant aspect here is that Mr. Norbert forfeited victory in his NASCAR race because his carburetor malfunctioned on the next-to-last lap. Not only did he forfeit the prize money but considerable income from product endorsements. It was this aspect that the State Supreme Court found—”

“What if Norbert’s kidneys had failed on the next-to-last lap? Could he have sued his urologist for damages?”

Another ripple of laughter.

“Actually, I’m glad you brought that up,” the lawyer said. “Absent invasivity, of course, there would be no grounds there. However, as I’m sure you’re aware, in
Bosco v. Worcester Stent
, the Court held that Worcester Stent was in fact liable when one of its vascular stents implanted in Ms. Bosco’s left thigh become dislodged while she was singing ‘O mio babbino caro’ at the Pierre Opera—”