Beside her, Blair Montgomery was shorter and smaller, a white-haired miniature of his younger self. The casual observer would not have seen him as did the judicial conservatives: a liberal bomb thrower whose passion for civil liberties, reproductive choice, and the separation of church and state was as unrelenting as his loathing of the death penalty, and whose closeness to the new Chief Justice was yet more proof—if any was needed—that her appointment by President Kerry Kilcannon was a triumph for secular humanism over the forces of faith and judicial restraint. It was a suspicion shared, to Caroline's regret, by several members of her own Court. This was deepened by their hostility to the intermediate court on which both Caroline and Montgomery once had served, the Ninth Circuit, which heard appeals from federal district courts in nine western states, most notably California: twenty- eight active judges, a combustible mixture of conservatives, moderates, and liberals, combined in random three- judge panels to issue rulings which—depending on the panel—were considered by conservatives to enshrine a lawless disregard for precedent and common sense.
'The work of the Supreme Court,' Caroline's conservative predecessor, Roger Bannon, had once remarked, 'is to interpret what the law is, and explain to the Ninth Circuit what the law is not.' Fortunately for Caroline, this aphorism had found much wider currency than her own prior remark to Judge Montgomery that the transition from her contentious Senate confirmation hearing to the cloistered quiet of the Supreme Court had been like 'going from a circus to a monastery—except that some of the monks are vicious.'
'Is your working environment any better these days?' Montgomery asked now.
Caroline paused to afford him a rest, hands shoved in the pockets of her slacks, surveying the swift rush of water over rocks as she contemplated her answer. 'Superficially,' she said. 'This last term didn't have quite as many contentious cases—except from your circuit, of course.' She turned to him. 'I see you had an execution yesterday.'
'Yes. But there was nothing for our Court to do—this man Price told his lawyers to take him off life support. What he left us is more problematic: a last-minute confession claiming that the next one scheduled to die, his brother, is innocent. The evidence is ambiguous.'
'Spare me ambiguity,' Caroline said dryly. 'In the death penalty, even the cut-and-dried can turn into a morass. At least in our Court.'
Montgomery began walking again, eyes on the path before them. 'A morass?' His tone became bitter. 'More like an abattoir. In his nearly twenty-five years as Chief Justice, Roger Bannon never once voted to overturn a death sentence. But what truly distinguished him was a driving lack of curiosity as to whether any of these defendants were, in fact, innocent.'
Caroline smiled. 'Oh, Roger Bannon may have been 'curious,' in the abstract,' she answered. 'He just didn't think guilt or innocence was any of his business. Or yours.'
Montgomery gave her a keen look. 'After the first decade or two of executions, I ceased to believe that Bannon cared about anything I recognize as justice. No defense counsel was too incompetent, no racial disparity too glaring, no condemned too young or too retarded, no judge or jury too biased. As for the small matter of innocence, Bannon labored mightily to erect a Byzantine morass of arbitrary legal barriers between federal judges and deciding what, to me, is the most basic question we should address: whether we kill some people for no reason but their misfortune and our own ineradicable imperfections.'
What she was hearing, Caroline knew, was a lifetime of frustration and moral passion, based on a single, diamond-hard belief: that the death penalty was tainted by human failings too profound to cure, and that imposing it was an act of arrogance which diminished our humanity. For Blair Montgomery, no Ted Bundy or Timothy McVeigh would ever compensate for the execution of the innocent.
'Blair,' she said gently, 'you've earned the right to feel as you do. But the death penalty is the law, and I promised Congress to uphold it. All I can do is try to make it fairer.'
'Impossible.' Her old friend's tone brooked no doubt. 'Your problem is about far more than AEDPA. It's about Justice Anthony Fini, and his desire to control the Court.'
'Don't be condescending, Blair. I fully appreciate that Tony Fini and I occupy different moral universes, and that he sees himself as Chief Justice Bannon's heir. But I put together the majority which barred executing the retarded—'
'Provoking the nastiest dissent from Fini I've read in years.' Montgomery's tone mixed admonition with concern. 'You haven't had a death penalty case which directly confronts what AEDPA does to narrow death penalty appeals, and sanction executions, no matter what the facts. You can bet Fini is looking for one. Knowing how his mind works, he'll use it to try to place his stamp on death penalty jurisprudence, and stake his claim to leadership of the Court.'
'And how might he do that?'
'He'll fight for an unequivocal ruling that, under AEDPA, guilt or innocence no longer matters as long as—by Fini's extremely elastic standards—the defendant's trial was 'fair.' ' Montgomery stood, as though made restless by his own words. 'That it's the role of the state courts to determine guilt, and the role of the Supreme Court to assure finality—that a state court sentence of death, if 'fairly' imposed, is carried out. You may have no illusions, Caroline. But unlike you or me, state court judges are elected. In a number of states, the right wing has defeated state supreme court judges who reverse death sentences, no matter how justified. So state supreme courts don't reverse them anymore. Look at California—'
'California,' Caroline objected, 'makes my point about judges who follow their own beliefs, and not the law. Until the mid-1980s, Rose Bird and her colleagues on the Court practiced abolition by judicial fiat, reversing death sentence after death sentence on grounds so flimsy that they gave death penalty proponents all they needed to defeat them at the polls. It was worse than stupid—it was intellectually dishonest—'
'Perhaps so. But what replaced them was a California Supreme Court afraid to reverse death sentences no matter how egregious the case. Which means my Court has to review with extreme care everything they do—'
'Setting off a vicious cycle,' Caroline interposed. 'Your Court began reversing the California Supreme Court, and then the Bannon Court began reversing your reversals. That's where Tony Fini cut his teeth on death penalty cases—on you.'
They started walking again, though Montgomery's gaze, while nominally directed at the meandering path before them, was distant and troubled. 'You missed the worst one,' he said at length. 'An execution that happened while you were tied up in your confirmation hearings. It was my most terrible experience as a judge, and one which undermined any notion that the death penalty isn't poison for us all.'
Side by side, he and Caroline picked their way across a rock-strewn stretch of growth, the spill of water serving as background to his narrative. 'The victim,' he continued, 'was stabbed to death in her apartment. There was substantial reason to believe that she was killed by her ex-husband, the roommate of the man about to be executed for the murder. But the District Attorney chose to prosecute both men, in separate trials, based on two conflicting
