The last item in the Court's Friday conference was Justice Fini's call for summary reversal. If he held his four votes, Caroline knew, all Fini needed was a vote from Justice Glynn or Raymond.
'A comparison of the briefs,' Fini urged, 'shows that the Ninth Circuit's opinion—both on retardation and on innocence—is not supported by the 'clear and convincing evidence' requirement under AEDPA. As for so-called freestanding innocence, not only is the evidence insufficient but the claim itself does not exist.
'Why waste time on argument? When a court of appeals is as out-of-bounds as Judges Montgomery and Sanders are here, the best course is to tell them so by summary reversal.'
'A few weeks ago,' Caroline responded, 'five of us voted against hearing California's petition at all. Now you tell us, Tony, that the Ninth Circuit's opinion is such a mutation that all five of us must have been asleep.
'Is the brief filed by Price's lawyers really that feeble? I think not.' Her voice became sardonic. 'Indeed, any one of the five of us, persuaded of our wisdom, could try to muster five votes for summary affirmance of Judges Sanders and Montgomery. But that would be as unusual as summary reversal—which, in the rare cases where we grant it, is typically unanimous.
'Those few weeks ago, you suggested that we had to hear this case because it raised such novel issues. I think we should do just that—hear the case.'
By seniority, it was Justice Huddleston's turn. 'Speaking of briefs,' he inquired blandly of the Chief Justice, 'I gather that the Solicitor General's office has declined to enter the fray.'
'That's correct,' Caroline answered. 'We do have a letter from Solicitor General Gold, which I've copied.' She handed the copies to Justice Glynn, who, taking one, passed them along to Justice Raymond. 'With respect to AEDPA, Mr. Gold believes that the panel's opinion does not undermine the statute but turns on facts unique to Mr. Price. Indeed, he suggests that an overrestrictive reading of AEDPA may raise constitutional problems best avoided by the Court.'
Huddleston gave Fini a glance of veiled spite. 'Hardly a ringing endorsement of your position, Tony. Certainly, it suggests we should at least hear from Mr. Price before rushing to reinstitute his execution. I vote no.'
'McGeorge?' Caroline asked of Mr. Justice Glynn.
Glynn shook his head. 'No,' he said softly. 'I find this case exceedingly difficult. Hearing argument can only help.'
'Thomas?'
'I agree. Let's have argument.'
With that, Caroline knew, Fini had lost this round: Miriam Rothbard would be the fifth vote against him. What disturbed her most occurred moments later, when the last Justice—Millar—voted with Justice Fini. Her antagonist had achieved his secondary aim: solidifying four votes against Rennell Price and identifying the two remaining sources, Raymond or Glynn, from whom he could secure the vote he needed to prevail.
'Summary reversal,' Caroline said evenly, 'is denied.'
* * *
That afternoon, the Chief Justice visited Walter Huddleston in the senior justice's chambers, his comfortable redoubt for nearly three decades on the Court.
'So,' the white-haired justice said, folding his hands across his comfortable belly, 'you're in need of spiritual counseling.'
'It's the Price case, Walter. Tony's gone to work on McGeorge. I don't want the law, or my Court, to go where Tony wants to take it. But I'm still fairly new here. I'm not sure of how much, or how little, to do.'
'That's what Fini counts on—plus the fact that you were narrowly confirmed and still have to feel your way. But he also tries to intimidate the others with his brilliance. Your strength is that you're smoother and more patient— not that Tony sets the latter bar very high.' Huddleston's tone filled with bemusement. 'To me, Tony Fini is Mussolini clad in bonhomie—self-satisfied to the point of inhumanity. But he tends to genuinely like his peers, excepting me and possibly you, and to treat them with real affection. That means something to McGeorge—he's fundamentally a sweet man and, since his wife died, a lonely one.
'With respect to the Price case, the key to understanding McGeorge is that he's also a romantic. From his fortunate birth to his smooth career, everything in his life has conspired to make him believe that the world— including our system of justice—is fairer than it is. But if he truly believes that some case exposes a genuine problem in the way the system works, his sympathies become engaged.' Placing his hands behind his neck, Huddleston concluded, 'That's what you may need to do—make this case seem real to him. As decorously as possible.'
'So what do you suggest?'
Huddleston gazed at the ceiling. 'The American Ballet Theatre is coming to the Kennedy Center. Before Frances died, the four of us would always go.' Pausing, he looked back to Caroline with a smile. 'I'll have to clear it with Bonita. But perhaps we can sacrifice our two tickets for the sake of Mr. Price. And, of course, our Court.'
EIGHT
ON THE MORNING OF THE ARGUMENT, CHRIS, CARLO, AND TERRI took a limousine down Pennsylvania Avenue toward the Supreme Court.
Chris was quiet. Mentally, he reviewed the precepts of his argument. Prepare to be peppered with questions, to answer each one crisply and move on. Don't expect to make your points in the order you had planned. Keep your legal theories as narrow as you can. Answer hypotheticals with care, avoiding traps. Avoid sweeping statements about justice which would draw the ire of Justice Fini. Oh, yes, and keep calm.
He was as ready as he could be. Every day for the last week, he had practiced as Terri, Carlo, and two professors of constitutional law had interrupted with question upon question. 'Mr. Paget,' Carlo had asked before he finished his first sentence, 'are you adopting the reasoning of Judges Montgomery and Sanders with respect to freestanding innocence—?'
It was Fini's question, of course. Now, once more, Chris rehearsed the answer.
* * *
