Mr. Justice Read online

  Mr. JUSTICE

  SCOTT DOUGLAS GERBER

  Mr. JUSTICE

  Copyright © 2011 by Scott Douglas Gerber.

  Cover Copyright © 2011 by Sunbury Press. Cover design by Lawrence von Knorr.

  NOTE: This is a work of fiction. Names, characters, places and incidents are the product of the author’s imagination or are used fictitiously, and any resemblance to actual persons, living or dead, business establishments, events or locales is entirely coincidental.

  All rights reserved, including the right to reproduce this book or portions thereof in any form whatsoever. For information contact Sunbury Press, Inc., Subsidiary Rights Dept., 2200 Market St., Camp Hill, PA 17011 USA or [email protected].

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  FIRST SUNBURY PRESS EDITION

  Printed in the United States of America

  May 2011

  ISBN 978-1-934597-35-4

  Published by:

  Sunbury Press

  Camp Hill, PA

  www.sunburypress.com

  Camp Hill, Pennsylvania USA

  Also By Scott Douglas Gerber

  Fiction

  The Law Clerk: A Novel

  The Ivory Tower: A Novel

  Nonfiction

  A Distinct Judicial Power: The Origins of an Independent Judiciary, 1606-1787

  The Declaration of Independence: Origins and Impact (editor)

  First Principles: The Jurisprudence of Clarence Thomas

  Seriatim: The Supreme Court Before John Marshall (editor)

  To Secure These Rights: The Declaration of Independence and Constitutional Interpretation

  For my brothers and sisters

  (Better late than never)

  “We are very quiet there, but it is the quiet of a storm center.”

  —U.S. Supreme Court Justice Oliver Wendell Holmes Jr.

  PART I

  Advice and Consent

  CHAPTER 1

  Lights from TV cameras blazed like the summer sun. Still cameras popped and hissed like firecrackers on the Fourth of July. Reporters packed together as tightly as teenagers in a speed-metal mosh pit flooded the hearing room.

  Professor Peter McDonald nevertheless felt alone in the world. It didn’t matter that he was the focus of all the attention. It didn’t matter that he was only moments away from the start of his confirmation hearing to become an associate justice of the Supreme Court of the United States.

  It was every law professor’s dream to serve on the Supreme Court—every law professor but Peter McDonald, that is. It might have mattered to him once, but nothing had mattered since Valentine’s Day—the day on which his beloved wife Jenny and his precious daughter Megan had been ripped from his life by an assassin’s bullets … bullets that had been meant for him.

  Peter McDonald—Phi Beta Kappa graduate from Harvard College, Order of the Coif recipient at Yale Law School, former law clerk to the chief justice of the United States, youngest professor awarded tenure in the history of the University of Virginia School of Law, most frequently cited constitutional law scholar in the nation—had met the former Jenny O’Keefe on the first day of their first year of college. Peter was a “legacy” at Harvard: his father, grandfather, and great-grandfather all had attended the famed Ivy League institution. Jenny, in contrast, was a scholarship student from South Boston—a “Southie,” as locals were called. She was the first member of her family to attend college, let alone graduate from the most prestigious college of them all.

  Peter and Jenny came from different worlds, but Peter knew he was a goner the instant Jenny walked into Introduction to American History on that crisp day in September and sat in the seat directly across the classroom from him. She didn’t seem to notice him, but he noticed her. And she certainly noticed that. How could she not? He spent most of the semester stealing awkward glances at her from behind his textbook.

  Eventually, after more than a few false starts—“Uh, Jenny, what did the professor say about the Articles of Confederation?”; “Er, Jenny, did the professor say whether the midterm is open book?”; “Excuse me, Jenny, can I xerox your notes?”—Peter McDonald somehow managed to convince Jenny O’Keefe to have a cup of coffee with him. And, eventually, coffee somehow turned into lunch, lunch somehow turned into dinner, dinner somehow turned into a weekend on Cape Cod, a weekend on the Cape somehow turned into summer jobs in the same city, and summer jobs in the same city somehow turned into a marriage proposal—a proposal that turned into the happiest twenty years of Peter McDonald’s life.

  The last five years had been the best. After fifteen long years of trying—fifteen years of near-bankruptcy inducing visits to fertility clinic after fertility clinic and down-to-the-minute time management of their procreative activities—Peter and Jenny McDonald became the proud parents of Megan Mallory McDonald.

  Megan looked almost exactly like her mother. She had a wall of chestnut hair, sparkling green eyes, a face full of freckles, and a smile that could make an angel sing. She also had her father wrapped around her little finger. All she had to do was ask, “Daddy, can I … ?” and McDonald would answer, “Yes, sweetheart.” He didn’t need to hear the end of her question. The answer was always, “Yes, sweetheart.” In fact, McDonald spent as much time as he could with Megan. Perhaps more time than he should, those who had long been championing his rise to the top kept telling him. But he wouldn’t listen to them. He cared more, far more, about Megan and Jenny than he did about securing a high-level government post—including one on the Supreme Court of the United States.

  CHAPTER 2

  “All rise!” the clerk called out.

  The nineteen members of the Senate Judiciary Committee were led into the hearing room by Alexandra Rutledge Burton, the senior U.S. senator from, in her favorite phrase, “the great state of South Carolina.” Burton was a legend on Capitol Hill. With a thick mane of silver hair, a Grecian profile, and shoulders as broad as those of the All-American basketball player she once was, the senator looked every bit the force of nature she was reputed to be. But those who knew her best—the handful of managing partners in D.C.’s most influential law firms, the CEOs of Wall Street’s most highly capitalized corporations, the editors in chief of the nation’s most widely circulated newspapers—understood that the senator hadn’t recovered from the trauma of witnessing her grandson commit suicide after being rejected for admission to her home state’s flagship institution of higher education.

  My grandson had dreamed of attending the University of South Carolina since he was nine years old, Senator Burton had written in an op-ed piece for the Charleston Post and Courier six months after her grandson’s death. He wasn’t interested in applying to Harvard, or Yale, or some other fancy New England college. He was a South Carolina boy through and through. He never missed a Gamecocks’ football game. His bedroom was chock-full of SC memorabilia. He bled garnet and black. He wanted to follow in his parents’ footsteps. They had met at SC. He wanted to follow in my footsteps.

  A flattering photograph of the senator’s grandson separated the paragraphs of her article. The text continued: My grandson’s tragic death has revealed more powerfully than anything could that affirmative action—what is best described as “reverse discrimination”—has profound human costs. Academic administrators continually trumpet the importance of “diversity” in our nation’s colleges and universities, but what about the more qualified applicants who are denied admission to those same institutions solely because
of the color of their skin? Make no mistake about it, Senator Burton continued, my grandson was more qualified than many of the minority students who were granted admission to the university ahead of him. My grandson graduated with a 3.6 grade point average from Charleston High School and scored in the top 15% on the Law School Admissions Test. Three-quarters of the minority students in this fall’s entering class—the entering class my grandson should have been a part of—have GPAs of less than 3.0 and LSAT scores in the fortieth percentile or below. Where’s the justice in that? Where’s the justice for my daughter and son-in-law, who have lost their only child to his own hand? Where’s the justice for my grandson?

  Burton assured her readers that she wasn’t writing the op-ed to exact some sort of revenge on the university. After all, she reminded them, I am a proud alumna of SC. Rather, I am writing to announce to the nation that I am behind my daughter and son-in-law one hundred percent in their appeal of the U.S. District Court’s recent decision dismissing their lawsuit against the university on the grounds that, one, the U.S. Supreme Court held in 2003, in Grutter v. Bollinger, that “diversity” in the student body is a “compelling” interest and, two, colleges and universities may consider race as a factor when deciding which applicants to accept.

  The senator then addressed the elephant in the room—namely, why she hadn’t used her considerable influence to guarantee her grandson’s admission to SC. To be honest, she wrote, I didn’t think he needed my help. That goes to show how naive I was about how aggressively reverse discrimination is being practiced by college admissions officers today. Moreover, I felt it would be inappropriate for me to pressure the university. My grandson, God rest his soul, agreed. In fact, he begged me not to intervene. He was a young man of uncommon integrity—he omitted any reference to me whatsoever on his application—and we will miss him dearly. The senator closed her opinion piece by writing: As the saying goes, we will take my grandson’s case “all the way to the Supreme Court” if we must.

  Senator Burton’s op-ed had drawn more letters to the editor than any other article in the long history of the Charleston Post and Courier. All of the letters expressed sympathy for the family’s loss, and the vast majority—nearly eighty percent—supported the family’s decision to appeal the trial court’s ruling. Give ‘em hell, Senator, a particularly ebullient letter writer said. Show those pinkos at the university that you mean business.

  And the senator did mean business. She had a plan. Two plans, actually.

  The first plan was to request an expedited appeal to the U.S. Supreme Court, a maneuver that would bypass the hopelessly Left-leaning U.S. Court of Appeals for the Fourth Circuit. Although the Supreme Court tended to frown upon such requests, the close vote in Grutter v. Bollinger (five to four) coupled with the high profile nature of the dispute (the hot button issue of American civil rights law), gave Burton hope—especially when one of the justices who had voted in favor of affirmative action had recently retired from the bench.

  Burton’s second plan required the assistance of a particular constituency who was considerably more reliable than the prima donnas with whom she worked in Washington. That constituency wasn’t comprised of high-priced lawyers, corporate honchos, or opinion makers. No, it was made up of a group of men who were far more powerful.

  CHAPTER 3

  His name was Lincoln Jefferson. He was seventeen, and he was black. His parents had named him after the two U.S. presidents who had done the most for African Americans: Abraham Lincoln, who had helped to free the slaves by winning the Civil War; and Thomas Jefferson, who had written in the Declaration of Independence that “all men are created equal.”

  Lincoln Jefferson’s “crime”? Sleeping with a high school classmate who happened to be white.

  He had been pulled from his bed in the middle of the night, stripped naked, and dragged kicking and screaming deep into the woods on the outskirts of Charleston. The large bonfire was already ablaze underneath a tall oak tree when he arrived. He was immersed in coal oil, hoisted up onto the tree, and slowly lowered into the fire. Some of the spectators cut off fingers and toes from his corpse as souvenirs. Others punched and spat at his disfigured body. His remains were dumped into a burlap bag and hung from the tree while many in the crowd cheered.

  Earl Smith drained a bottle of Budweiser in one long gulp. He shattered the empty bottle against the tree. Shards of glass scattered into the fire. “‘King of beers,’” he said to his brother. He belched. “Ain’t nuthin’ like it.”

  “Amen to that,” Billy Joe Collier said. He threw a log onto the fire. He tossed his brother another beer and grabbed one for himself.

  Earl Smith and Billy Joe Collier weren’t blood brothers. They were, however, brothers in the Knights of the Ku Klux Klan, a self-proclaimed “fraternal organization” that grew out of the Civil War to protect and preserve the white race and ensure voluntary separation of the races and even extinction of blacks, Catholics, and Jews. Smith, the grand dragon of the Klan’s South Carolina chapter, liked to joke, “We don’t burn crosses; we light ‘em. It’s just a religious ceremony.”

  Of course no one believed him. The Justice Department certainly didn’t. The FBI had tried to keep Smith and company under close surveillance ever since Charles Jackson had become the first African American president of the United States. Prior to that watershed event the Klan had essentially disappeared from view, and the Feds’ attention had been dominated by Al-Qaeda, the Taliban, and other foreign terrorist groups. But it was amazing how quickly the Klan had sprung back to life after President Jackson’s victory. Indeed, the Feds had named their reconstituted Klan watch unit Phoenix, after the mythical bird that rose from the ashes.

  Chief among Earl Smith’s cohorts was Billy Joe Collier. Collier was the second highest ranking official—the klaliff—in the South Carolina Realm. Smith had asked him to call a konklave—a meeting—of the Charleston den.

  The konklave was being held in a location nearly impossible to access. The Klan was like the Mafia: everyone knew it was there, but no one knew how to find it. Secrecy was the Klan’s cardinal rule—secrecy and the destruction of anyone who threatened the supremacy of the white race. The rationale for the Klan’s most visible characteristic—the uniform of long white robes and tall white pasteboard hats—was secrecy.

  “Akia. Kigy,” Smith said. That was Klan nomenclature for “A klansman I am” and “Klansmen, I greet you.”

  “Akia. Kigy,” the konklave replied.

  Smith said, “Kludd Bates will now read from the Kloran.”

  Johnny Bates, the den chaplain, opened the ritual book and said, “Your Excellency, the sacred altar of the Klan is prepared; the fiery cross illumines the konklave.”

  Smith said, “Faithful kludd, why the fiery cross?”

  Bates said, “Sir, it is the emblem of that sincere, unselfish devotedness of all klansmen to the sacred purpose and principles we have espoused.”

  Smith said, “My terrors and klansmen, what means the fiery cross?”

  The konklave said, “We serve and sacrifice for the right.”

  Smith said, “Klansmen all: You will gather for our opening devotions.”

  The konklave sang the Klan’s sacred song. The chorus rang out:

  Home, home, country and home,

  Klansmen we’ll live and die

  For our country and home.

  Kludd Bates read more from the Kloran.

  When Bates had finished, Smith said, “Amen.” Then Smith said, “I’ve called this konklave because our good friend Senator Burton needs our help.”

  “Name it, and we’ll do it,” one of the hydras said. “Anything for Senator Burton.”

  A hydra was an assistant to the grand dragon. This particular hydra worked at Wal-Mart during the day.

  “Akia! Akia!” the konklave cried out.

  Alexandra Burton had been a good friend to South Carolina klansmen over the years. She always made sure they had enough money to keep their organization a
float, and she always did her best to keep federal authorities from investigating them when black men were found hanging from ropes on trees. Black men such as Lincoln Jefferson …

  “That’s what I told the senator,” Smith said.

  “What does she need for us to do?” the same hydra asked. He threw a rock at the burlap bag that contained Lincoln Jefferson’s disfigured body.

  “She needs us to scare off some nigger lovin’ law professor,” Smith answered.

  “Why would Senator Burton give a shit about some goddamn egghead?” the hydra asked next. He picked up another rock.

  Smith answered, “Because he might become a judge on the Supreme Court. If he does, the senator said he can make more nigger-friendly laws.”

  “Death to the nigger lover!” the konklave shouted.

  CHAPTER 4

  Jeffrey Oates handed Senator Burton the folder that contained the list of questions the senator planned to ask Peter McDonald during the confirmation hearing. Oates, Burton’s top legislative assistant, was hoping for an acknowledgment—a “Thank you” ideally, although an audible grunt would have sufficed—but he didn’t receive one. He never did anymore. The pleasantries had stopped when Oates had failed to kill McDonald six months earlier, shortly after the professor’s nomination to the Supreme Court had been announced by the president. Frankly, Oates was surprised that Burton hadn’t fired him. The only reason that Oates could think of for why he still had a job was that the senator knew Oates could tie her to the plot. Consequently, Burton could only go so far in expressing her displeasure with her chief aide because he had gone too far when his careless mistakes left their target unscathed, killing his wife and child instead.