“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.”
Touche.
“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?”
“Because this Court held that such an instruction compelled the defendant to be a witness against himself.”
“A ridiculous decision!” Whittington roared. “I’d overrule it if I had the votes.”
A door opened, and a marshal in a blue blazer-perhaps attracted by the noise, most of which came from the chief-stuck his head inside, saw the two men, and ducked out again.
The chief lowered his voice and moved closer to Truitt, as if ready to share a great secret. “Sam, you know the tobacco case on the docket?”
“I haven’t read the briefs yet, but I know Blue Cross claims the cigarette companies manipulated nicotine levels to keep smokers addicted.”
“That’s the one. Just part of the modern-day trend to blame big business for our personal weaknesses. If people want to smoke, should the law stop them?”
“But that’s not the issue, Chief. Blue Cross wants reimbursement for medical payments based on-”
“Paint it with any brush you want, but it’s just another example of using the Courts to change social policy. You’re not inclined to favor the plaintiff, are you, Sam?”
The question jolted him. “I’m not inclined either way until I read the briefs and listen to oral argument.”
The Chief coughed out a harrumph. “Don’t get so damned self-righteous. We’re all inclined one way or another and on rare occasions can be persuaded to go against our predispositions. I was just hoping to count on you on this one.”
So this is how it’s done. Horse trading like congressmen in the cloakroom. So much for the holiness of the temple.
“You’re not lobbying for my vote, are you, Chief?”
“I’m just trying to see where you stand, but I’m getting the feeling that you and I are going to disagree on damn near everything,” Whittington said. “I can tell from your writings that you’re plaintiff oriented.”
“Only when the law and the facts are on their side,” Truitt said.
“The law is whatever the hell we say it is,” the chief said with a crafty smile, “and the facts can be read any which way we want. Oh, hell, Sam, let’s not get into a fuss yet. I just want to lay my cards on the table.” The chief paused and seemed to appraise the younger man. “I suppose you know I opposed your appointment.”
Truitt chose to stay as quiet as a little weasel invoking the Fifth.
“Well, I did,” the chief said, “and you probably think it was on political grounds, but you’re wrong. The Court is split into too many camps now. It’s hard as hell to put together a consensus. Too many plurality opinions, too many concurring opinions on different grounds, way too many dissents.”
“‘Nine scorpions in a bottle’ was the way Oliver Wendell Holmes described it,” Truitt said.
“On this Court, we’ve got field mice, gnats, and maybe a horse’s ass.”
“Which one are you, Chief?”
Whittington’s face froze for a second, but then he laughed drily, like a log crackling in a fire. “I’m the old lion, the king of the jungle. And who are you, Sam? Tell me why you’re here, and don’t give me any BS about answering your country’s call. I know you hustled like a son of a bitch to get the appointment.”
“I want to make my mark. Fifty or a hundred years from now, I’d like scholars to read my opinions and say, “Damnit, he was right, and he was right before anyone else’”
“Just as I thought, you want to be a star. That makes you dangerous because the quickest way to be noticed is to ignore precedent and strike out on your own.”
“I respect the past, but I’m not irrevocably bound by it. Jurisprudence must recognize that the law changes with society. All the great justices, Holmes included, did just that.”