Deadlock

How did he know she was going to end up in here? Now it really was too late.

The tears kept coming.

3

And then it was Millie’s turn.

As she stood she gave a quick glance into the gallery. Charlene Moore sat with Sarah Mae and Aggie, all three looking nervous. Jack was in the back, having flown out with Rosalind from Santa Lucia for this slice of American history. The rest of the place was packed with reporters, politicians, and a handful of the public, the ones who had lined up at 3 a.m. in order to get a seat for the show.

And what a show Larry Graebner had just put on. He was brilliant. Millie had heard him argue half a dozen cases when she was a justice. Never had he been more eloquent, more on top of the issues. Every question he was asked gave him another opportunity to demonstrate his legal virtuosity.

Millie placed her notes on the podium and looked up at her former colleagues. For a second their faces seemed to melt into one another. The chamber seemed suddenly as silent as a tomb. But she was ready. “May it please the Court,” she said. “The informed consent law at the heart of this case has one purpose, as clear from its language as its statutory history. That purpose is to protect the health of women who are considering the most important moral choice of their lives, the decision to end a life.”

Justice Arlene Prager Weiss immediately interrupted. “Counsel,” she said, “aren’t you assuming the very question you ask us to decide? Part of your argument, it seems to me, assumes that a fetus constitutes a life in the sense of personhood. The statute says unborn child. But we have rejected that argument in the past. You yourself pe

Millie had anticipated this query, either from Weiss or Riley.

“My rationale in Messier,” she said, “was expediency. The question now is whether that rationale was sound. Yes, the case itself is precedent, but this Court has not hesitated to overturn precedent when convinced the rationale should no longer hold. It happened when Brown overturned Plessey v. Ferguson and brought equal justice to people of color. I am suggesting that this case is another of those times.”

“But Justice Hollander,” Preston Atkins said, “to do that we would have to find that the fetus is a person within the meaning of the Fourteenth Amendment, would we not?”

The question cut right to the heart of things. Of course Atkins – and Weiss and Riley – were right to put that challenge to her.

But as she opened her mouth to answer, the words stopped in her throat. She looked back at Atkins, then, to his left, caught the eye of Thomas J. Riley. He was staring, almost as if looking through her.

She found herself answering Atkins’s question while looking at Riley. “That inquiry must be secondary, Your Honor, it seems to me. There is a preliminary question that must be answered. This Court must decide, once and for all, what first principles will be used to decide these issues.”

Riley’s eyes ignited with fire. “Just what first principles are you talking about, Counsel?” he asked.

4

A

That called-to feeling, from somewhere beyond her understanding.

What was that all about?

She was alone for a moment now, her cell mate out for yard time. It was eerie, and she thought for a moment she was going to go certifiably crazy.

Wouldn’t that be cute? Get out on a mental, and spend the rest of your life on drugs, shuffling around in slippers down white-walled corridors?

The image reminded her, for the first time in years, of her room as a little girl. The one time she could remember being happy in her childhood. Her stepfather was gone, her mother was there, and she wasn’t drinking.

She came into A

No more arms. Not here. Not ever.

5

“We must start with the founding documents,” Millie said. “All men are created equal, and endowed by their Creator with certain inalienable rights.”

“The Declaration of Independence is not the Constitution,” Riley snapped.

“That is not the view of the Court in the past,” Millie said, marveling at her own words. A year ago such a sentiment would have been unthinkable coming from her. “Our decisions throughout the 1800s consistently called the Declaration ‘part of the fundamental law of our nation.’ Only in the last forty years have we drifted from that view. Are we going to say now that our predecessors on the Court were wrong or naive?”

Millie glanced left and saw Larry Graebner watching her, a look of complete bafflement on his face. He seemed to be thinking, Are you absolutely crazy? That only emboldened her. “I am calling upon this Court,” she said, “to reaffirm the basic tenets of our founding. Without those principles, we will continue to be a nation on a collision course with itself. This case makes that clear. That a young woman can be denied – ”

“We’ve guided our ship of state pretty well under the law of the past thirty years,” Weiss interrupted. “Shouldn’t we consider the drastic political consequences of changing course?”

“The decisions of this Court do have political consequences,” Millie said. “We all know that. But the Court was never meant to have political intentions. In a Constitutional democracy, this Court was not conceived as the institution that creates law. Or that overturns laws duly passed, so long as such laws do not violate any Constitutional provision.”

For the next few minutes several of the justices asked questions about that very thing – the constitutionality of the informed consent law and its various sections. The larger issue Millie had begun to argue was lost. But she knew she had to answer the questions asked. In the back of her mind, she was hoping for – praying for – one more chance to return to the issue.

Oddly, Justice Riley was silent now, though Millie sensed he was deep in thought.

Finally, just before her time was up, Riley leaned forward in his chair. “Aren’t you asking this Court to decide in such a way that will tear at the very fabric of our nation?”

Millie saw in him a real anguish. How well she understood it. “Your Honor,” she said, “like one of my judicial heroes, I believe truth conquers all things. It may be a long struggle before the conquest, but ultimately it is the only struggle that counts. It counts for Sarah Mae Sherman, and for all the future Sarah Maes. But it also counts for the soul of the law, and for this great edifice we call justice – ”

The red light on the lectern illumined. “Thank you,” Chief Justice Atkins said. “Your time has expired. This Court is now adjourned.”

The nine justices stood and filed slowly out of the room. Millie watched them, her former colleagues, as they disappeared behind the velvet curtain.

She had never felt so spent. She turned and looked into the gallery. Her supporters were all there, nodding in affirmation.

And then she looked up. Her gaze fell on the marble frieze depicting the eternal struggle for justice, the one she had come to know so well when she was sitting on the dais. She smiled, and silently thanked God that she had had the chance to be part of the struggle.