Supreme Justice

Chapter Six

The only thing keeping many death-row inmates alive is a petition for a writ of certiorari, which, if granted, orders the last court to hear the petitioner’s appeal to forward the record of the case to the Supreme Court for review. Twice each week, stacks of new petitions are circulated in the justices’ chambers, where their law clerks write memorandums recommending that the petitions be granted or denied. The chief justice circulates a “discuss list” with cases deemed to have merit, and each associate justice may place additional cases on the list.

The decision to grant or deny the thousands of petitions that flood the Court each month is made in an oak-paneled conference room that adjoins the chambers of the chief justice. Only the justices attend the conference; no other Court personnel, including their clerks, are allowed to hear their deliberations. The conference room is illuminated by a chandelier and the light from several windows. The windows are flanked by bookshelves filled with reports of the Court’s decisions. A somber portrait of John Marshall hangs above a black marble fireplace. From his position on high, the fourth chief justice of the United States watches his judicial descendants take assigned seats around a long mahogany conference table on which lie sharpened pencils and yellow legal pads.

Associate Justice Felicia Moss limped into the conference room aided by an ebony cane with a silver handle, a gift from her clerks to celebrate her return to the court after hip-replacement surgery three years earlier. Justice Moss eased herself onto one of the high-backed black leather chairs that surrounded the conference table, noticing that everyone but Ronald Chalmers was present. As soon as she sat down, Chief Justice Oliver Bates nodded. Warren Martinez, the most junior justice, closed the door and the chief justice began the meeting.

“Ron’s not here,” Moss interrupted.

“Sorry, Felicia,” Bates said. “I told everyone before you came in. Ron’s going to be delayed and he wants us to start without him.”

Moss frowned. “Is something wrong? He hasn’t missed a day since I started on the Court.”

“He didn’t tell me what was up. He just said to go on without him, so let’s start. We have a lot to discuss.”

Over the next hour, the justices debated the fate of several cert petitions before arriving at Woodruff v. Oregon. Millard Price-a barrel-chested, broad-shouldered man who had once been president of the American Bar Association, solicitor general of the United States, and senior partner in Rankin Lusk Carstairs and White-was sitting across from Moss. Price was easygoing and could usually be counted on to defuse tension with a joke, but Moss thought he’d looked edgy all morning. As soon as the chief justice spoke the case name, Price leaned forward.

Warren Martinez had scribbled a request to speak about the case on the discuss list, and he outlined his reasons for believing that cert should be granted.

Chief Justice Bates and Kenneth Mazzorelli argued against granting the petition. Justice Moss was on the fence and decided to keep her views to herself. Millard was one of the last to speak.

“This is a waste of time,” he said. “I don’t see anything certworthy in the case.”

Moss was surprised to hear Price take a hard line in a capital case. The justice was a member of the conservative bloc on many issues, but he was a moderate on social issues, and he was usually fair and open-minded in death cases.

“The double-jeopardy argument is frivolous,” Price went on. “The case was dismissed with prejudice the first time Woodruff was charged with Finley’s murder. There was a completely different set of circumstances when she was charged the second time.”

“But it was the government that was responsible for her being charged in the first case,” Martinez said.

“And there’s definitely a Brady issue,” Justice Mary Ann David chimed in. “The government has an absolute duty to provide the defense with exculpatory evidence in its possession, and I don’t think national-security concerns can trump that duty, especially when the defendant’s life is at stake.”

“That argument is based on guesswork and conspiracy theory, not fact,” Price shot back. He seemed upset, and Moss found that strange. Millard’s arguments were usually calm and well reasoned. This outburst was very uncharacteristic.

Before anyone could continue the discussion, the door opened and Ronald Chalmers entered the conference room. There were dark circles under his eyes and his broad shoulders were bowed.

“Glad you could join us, Ron,” Chief Justice Bates joked.

“Out on the links?” Martinez asked with a smile. Chalmers was a serious golfer.

“I won’t be staying,” Chalmers said. Moss thought he sounded exhausted. “I just came from the White House. I’m resigning from the Court.”

The justices looked stunned.

“I’m sorry to spring this on you, but I didn’t know until yesterday afternoon. Vivian has Alzheimer’s. It’s in its earliest stage, so she…” Chalmers choked up and paused to collect himself. “We’re going to Europe while she can still appreciate the trip. I’ve been putting it off and, well, I just can’t anymore.”

Justice Moss went to her friend and colleague and embraced him. The other justices gathered around.

“I am so sorry,” Felicia said. “If there is anything I can do.”

“There isn’t,” was Chalmers’s weary answer. “I just want to spend as much time with Vivian as I can, and there’s no way I can do that and carry on the work of the Court.”

“When are you leaving for Europe?” Mary David asked.

“I’ve got our travel agent working out the details. It will be soon.”

“Does Vivian want visitors?” Justice David asked.

Chalmers smiled. “I think she’d like that.”

“I’ll call, tonight.”

The justices talked with their colleague a few moments longer. Then Chalmers excused himself.

“God, that has got to be so tough,” Bates said.

“I can’t imagine what he’s going through,” Martinez said.

The eight remaining members of the Court talked about their friend until Millard Price broke in. “I don’t want to be insensitive, but we really should get back to work. It takes four votes to grant cert. With Ron stepping down, I don’t think there are four votes in Woodruff, so maybe we can dispose of the case.”

Several of the justices looked appalled at Price’s lack of compassion. A few looked angry.

“The body’s not cold yet, Millard,” Martinez said. “I don’t think this is the time to make a hasty decision about a case that some of us feel strongly about.”

“Well, the votes aren’t here,” Price said. “We can take a poll, but I don’t think a vote to grant cert will carry.”

“I’m not going to be rushed into a vote, given these circumstances,” Justice Moss said. “We have no idea how Ron’s successor will vote, and I’m not certain how I’m coming down. I say we exercise the right under 28 USC, Section 1 to defer our vote.”

A few of the other justices voiced agreement. Chief Justice Bates said, “I’d like a show of hands. How many of you are in favor of deferring Woodruff?”

Seven of the eight justices raised their hands, Price being the only dissenter.

“All right, then,” Bates said. “Let’s take a twenty-minute break to clear our heads.”

Moss wanted to talk to Price about the way he’d acted, but he rushed out of the room.

“What was that about?” Justice Mazzorelli asked Felicia, his eyes on Price’s retreating back. Mazzorelli, a staunch conservative, often clashed with Felicia on legal issues, but he was an amiable colleague.

“I have no idea. Millard doesn’t usually get worked up about our cases.”

“Maybe he didn’t get enough sleep last night.” Mazzorelli shook his head. “I bet Ron didn’t get any at all. Poor bastard.”

Moss let Mazzorelli steer the conversation away from Price and the Woodruff cert petition, but she couldn’t stop thinking about the judge’s overreaction.