While Justice Sleeps(125)
“Did I understand you to say you had direct communications with an agent of the FBI?” The query shot out from Justice Hodgson, whose stern demeanor spoke volumes. “If he knew where to find your mother, I fail to comprehend why you couldn’t simply delay tendering the resignation. An element of coercion is the well-founded belief that your actions are required to avoid the threatened consequence.”
“I believed my mother was in danger. I believed I had to attend that press conference.” Avery met the justice’s dubious gaze. Anxiously, she clutched at the lectern, wondering if she’d made the wrong call. “Agent Lee promised to do his best. I did mine.”
Apparently mollified, Justice Hodgson subsided, and Justice Gardner moved in to grill her: “Let’s set aside the coercion for a moment. I am more interested in your assertion that the submission of resignation winds its way to a constitutional question. Assuming, arguendo, that this Court has original jurisdiction to act.”
Several rounds of arguments with Noah had prepared her for this one. Her thudding pulse slowed, and Avery answered, “The question at hand is the constitutionality of removing a Supreme Court justice absent his consent. Jurisdiction for all cases in law and equity arise under the Constitution.”
Warming up, she said, “Moreover, the Twenty-Fifth Amendment addresses the issue of how to handle succession in office in the event of incapacitation of a president. However, the Constitution remains silent on the incapacitation of any other constitutional officer, including those who hold lifetime appointments. The Constitution does not contemplate the ability of a third party to unilaterally decide the issue of removing a Supreme Court justice from his seat. To the contrary, the country chose to have the Constitution remain mute on the issue.”
“But the Framers could not have anticipated the medical machinery of the twenty-first century in 1787,” Justice Gardner retorted.
“The voters in 1967 could have. The Twenty-Fifth Amendment goes into great detail to identify how to treat the incapacity of the president. Not his or her death, but simply the long-term inability to perform the duties of the job that lasts only four years at a time, let alone a lifetime appointment.”
“So you’re asserting that even absent coercion, your resignation is invalid.”
“Yes, Justice Gardner. I am.” Her argument was exactly the opposite of the one she’d have made a week ago, but that was before she discovered the president was a terrorist. “I lack the ability to arbitrarily participate in the removal of a Supreme Court justice from his seat. The president’s action merely continues my unconstitutional act and, therefore, should be nullified. If I never could resign him without his consent, then there cannot be an open seat to fill.”
Her assertion opened the floodgates, and the inquisition took on a new fervor. Except from the Chief. She sat quietly, her silence uncustomary and noted by the regular Supreme Court reporters. No inquiries about political questions or standing or coercion or guardianship rights. Not a word until Avery wound down a riposte to Justice Lawrence-Hardy.
Then the Chief spoke.
“So, Ms. Keene, under no circumstances, in your view of the world, could a legal guardian resign on behalf of a person holding a lifetime appointment? We’ll simply have to expand the Court each time one of my colleagues falls ill without signing a resignation letter first?”
Avery had waited for the pitch, and she took a mental step back. And swung. “I wrote that letter of resignation. My argument is that for the resignation to be valid, it would have to be consistent with wishes expressed by the holder of office before the illness.” She locked eyes with the Chief. “Otherwise, the resignation is meaningless if it is not affirmatively in the person’s best interest. I think I should reserve the balance of my time for rebuttal.”
“Thank you, Ms. Keene.” Avery shifted away from the lectern as the Chief said, “Mr. Ralston, we’ll hear from you.”
He thanked the Court and launched his first salvo: “I’d like to begin by addressing Justice Bringman’s initial query. There is no jurisdiction here. Try as Ms. Keene might to link her motion to the Twenty-Fifth Amendment, the chain is too short. As Ms. Keene’s attorney argued so eloquently in his brief before the probate court of the District of Columbia, she alone is charged with acting in Justice Wynn’s best interest. While that case is still pending, the immediate actions taken by Ms. Keene are consistent with his assertion. It is her responsibility to assess whether Justice Wynn’s wishes are served by hamstringing the activities of this Court by leaving him inert to its operations but occupying its ninth seat.”
As he intended, all eyes swung to the empty chair. “It seems to us that the remedy available to Ms. Keene is that of acceptance. She made a choice, horrible as it was, and it achieved her purposes. Mrs. Keene is safe. Justice Wynn is safe. The Supreme Court is now free to accept a functioning member of the body, and President Stokes stands at the ready to act.”
He fixed the bench with a steely gaze. “In less legal terms, what’s done is done.”
FIFTY-TWO
For the next fifteen minutes, the solicitor general earned his place in history. He thrust and parried with four justices certain that their own seats might be next. With careful, precise answers, he eviscerated Avery’s constitutional argument, laying bare the glaring problem of her petition.