By Dan Lawton
Part IIIOn January 14, 2021, thirty-six of America’s brightest young law school graduates, the law clerks to the Justices of the Supreme Court, sat in the chairs set between the columns on the south side of the courtroom, at rapt attention, awaiting the emergence of their nine bosses. In the gallery, no members of the public had managed to score a seat. It was wall-to-wall Beltway royalty, senators and agency heads and big-shot journalists. They were exchanging handshakes and backslaps and chumming around like it was a social occasion. A couple of them accosted Morgan Chu and Brian Panish personally and wished them good luck or bad luck or whatever.
Behind the four white columns and the dark red curtain, the Justices were in the vestibule of the conference room, pulling their black robes out of the wooden lockers mounted on the wall, like football players suiting up for a game. Justices Clarence Thomas, Stephen Breyer, and Ruth Bader Ginsburg were the only three who had been there when the court decided Bush v. Gore in 2000.
For Breyer and Ginsburg, the memory was still a bitter one. Finding themselves on the losing side of the 5-4 decision which installed George W. Bush as president, each had dissented and joined the dissents of their late colleagues David Souter and John P. Stevens. Thomas had voted against them and voted with William Rehnquist, Antonin Scalia, Sandra Day O’Connor, and Anthony Kennedy, sending Al Gore down to bitter defeat and off to political Siberia.
Among the Justices, nobody wanted to talk about that one today. The court’s decision in Bush v. Gore had earned it a storm of condemnation from liberal and conservative constitutional scholars alike. Americans loved it or hated it but everyone knew it had been a nakedly political act by a bunch of unelected judges who were just as partisan as any Tea Party hack on Capitol Hill.
"Oyez, oyez, oyez," said the marshal as the nine Justices emerged from behind the curtain. "All persons having business before the Supreme Court of the United States, are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!"
John Roberts called the two cases, which the court had consolidated, Biden v. Trump, the Ninth Circuit case, and Trump v. Harris, the D.C. Circuit case. With a warm smile, he welcomed Morgan Chu to the lectern.
"May it please the Court, your Honors, good morning," said Chu.
For the next two hours, Chu and Panish went at it, arguing over who should be the next president of the United States. Throughout, the Justices peppered them with questions. From their seats, the law clerks studied the jurists' body language, noting each frown, sigh, pursing of lips, smile, grimace, and sidelong glance.
At one minute after noon, the Justices rose as one and disappeared behind the curtain in unison. Off they went to the conference room, entering its vestibule single file. Off came the black robes. The Justices stored them in the nine wooden lockers mounted on the wall. Then they filtered into the conference room itself.
At the north end of the room sat the big table. Four handsome leather-clad swivel chairs lined each side of it. The ninth chair sat at the head of the table. It belonged to the Chief Justice, John Roberts. Shelves of the Supreme Court Reporter dating back to 1882 lined the walls. A deep pile carpet with a fussy, muted, elaborate floral pattern lay underneath their feet. Opposite the door was a marble fireplace with a dark wooden mantel. There, a little fire, carefully prepared by one of Roberts’ assistants, crackled. Above it hung an oil-on-canvas portrait of John Marshall.
Brett Kavanaugh, the most junior of the nine, shut the door, per unwritten but long-standing protocol. If someone were to knock, he was the one who would have to get up and go see who it was.
And so began the most secret of all secret government conferences in America, the post-hearing deliberations of the nine Justices of the Supreme Court.
More than one law clerk had daydreamed about sneaking in there and planting a listening device behind one of the dusty volumes that sat on the shelves when no one was around, then secreting herself in a private listening post somewhere in the building, maybe in one of the interior courtyards outside, inserting a pair of ear buds, munching a sandwich, and pretending to be deaf while drinking it all in.
The law clerks had a coconut telegraph. It was an electronic chatroom. Today it buzzed with observations, guesses, prognostications, withering remarks about Brian Panish and Morgan Chu and Trump and Biden and the herd of woolly D.C. mandarins who had taken over the gallery before the hearing began. Some of the law clerks tapped away on their smartphones and tablets in their favorite hideaways, in unused chambers of retired or long-dead Justices which overlooked one of the internal courtyards up on the second floor.
Did you see RBG roll her eyes when Panish didn’t answer her question
Yeah I guess she is writing her dissent already
Don’t be so sure Gorsuch looked on the fence/he fed Chu an opening/Chu jumped on that smelled blood
RBG is looking extra frail today/she is amazing/how does she keep going?
The Chief looked a little vexed/he remembers 2000 and what a debacle it was
Thomas doesn’t look right today/is he sick?
Maybe it is just indigestion/too many cheese fries bahaha
Who woulda thunk it/Brian Panish a PI lawyer from L. A. hits a home run his first time up at SCOTUS
A HOME RUN?! WTF/he got killed today/dude should stay in his lane/ambulance chasers don’t belong at SCOTUS
In the conference room, the faces around the table were grim. John Roberts, ever chipper and cheerful in facial expression whatever the situation, seemed dour and tense. Ginsburg looked wan and pale. At 87, she was a cancer survivor. Who knew how many rounds of chemo and several surgeries she had undergone. RBG was made out of titanium. But today she looked frail and sick. Samuel Alito, who sat across from her, studied her, wondering whether Ginsburg might drop dead right here at the table before they could take a vote.
In 2000, John Roberts hadn’t been appointed to the court yet. But, ever sensitive to the public’s perception of the court and its work, he was keen to avoid another straight party-line 5-4 decision in a case that decided a presidential election. There was already rioting in the streets. If the Justices botched it, or didn’t speak with one voice, it might make things worse in Portland and Chicago and Charlottesville and Birmingham and Los Angeles and Cleveland. As this day had neared, he had felt a sense of sickening dread. He fretted over the hard feelings which lingered at the court after Bush v. Gore. Roberts had heard that David Souter, the bookish and reclusive retired bachelor Justice from New Hampshire, had actually wept in despair in his chambers over Bush v. Gore.
There’s no crying at SCOTUS, Roberts thought.
Roberts wanted no debate, no raised voices, and no rancor this time.
He asked his colleagues for a straight up-or-down vote on the two narrowest issues at stake in the two cases. They were simple, Roberts told them.
The first one was whether California had violated the due process and equal protection rights of its voters by allowing its massive mail-in balloting program to descend into chaos amid the Postal Service’s wildcat strike. In Biden v. Trump, the Ninth Circuit had said yes, subtracting 55 electoral votes from Biden along with his Electoral College majority.
The second one was whether the Senate had violated the twelfth amendment by violating its own protocols in counting the votes for Harris. In Trump v. Harris, the D.C. Circuit had said no, making Harris vice president-ascendant and assuring her swearing-in as president on January 20.
On the first question, five or more yes votes would invalidate Biden’s Electoral College win, blocking Harris from the presidency, and making Mike Pence vice president-ascendant.
On the second question, five or more no votes would hand the White House to Harris.
“Who would vote yes on the first question?”
Roberts’ question hung in the air for a moment.
Up went a few hands: Alito, Neil Gorsuch, Kavanaugh, Thomas.
Roberts put up his own hand.
It was 5-4 to affirm the Ninth Circuit.
All five yes votes would come from Justices appointed by GOP presidents.
“Who would vote yes on the second question?”
Four hands went up: Stephen Breyer, Ginsburg, Elena Kagan, and Sonia Sotomayor.
“Who would vote no on the second question?”
Alito, Gorsuch, Kavanaugh, and Thomas all raised their hands again. Then John Roberts did too.
The four no votes came from Breyer, Ginsburg, Kagan, and Sotomayor, all Democrats put on the court by Bill Clinton or Barack Obama.
Roberts’ lips formed a straight horizontal line.
“I’ve already drafted the opinions,” said the Chief. “You'll have them later today.”
Breyer sighed. He saw no point in saying anything. The die was cast. It was Bush v. Gore redux, the GOP with the edge, 5-4, and the Democrats a buck short, just like in 2000. Breyer's hangdog drifted slightly upward, over everyone else’s heads, as though looking into the eyes of the oil portrait of John Marshall over the fireplace. RBG, Kagan, and Sotomayor would join him in dissent, Trump would get another four years, and that would be that. To Breyer, Kavanaugh looked red in the face, a bit flushed, barely able to conceal a triumphant air.
Breyer studied Kavanaugh, the court’s youngest Justice, more closely. For an instant he wondered if he detected the faint odor of beer.
Among the law clerks, there was a rumor that Kavanaugh kept a small secret stash of cold beer in a refrigerator in a small private office. No one had actually seen it. It was said to be Anchor Steam chilled to a temperature of 33 degrees.
“We did this in 2000,” Ginsburg rasped. She seemed to be laboring to get the words out.
“Remember what Yogi Berra said? Déjà vu all over again. Our court is intervening in a presidential election meant to be decided by the people.”
The old gal looks like hell today, Kavanaugh thought.
“The country survived Bush v. Gore, Ruth,” said Clarence Thomas, leaning slightly forward as he addressed Ginsburg, who sat two seats down from him on the same side of the table. “And all of us went on with life. Get over it. Al Gore lost, George W. Bush got elected.”
“He was appointed, not elected, Clarence,” Ginsburg shot back. “Now we’re appointing someone else. Only the names are different this time.”
The room went dead silent.
Roberts looked at Thomas. A few beads of sweat dotted Thomas’s big forehead.
“I’m sorry, Ruth,” he said in his deep chummy baritone. “I -- uh, on --“
On was one of Thomas’ verbal tics, used as other people might say ah or uh. The people who had watched his confirmation hearings during the Anita Hill business in 1991 had heard him say on over and over again as he sat answering questions from Biden’s Senate Judiciary Committee.
All eyes around the table now focused on Clarence Thomas. He was a big man. Since 1991 he had put on forty pounds, exercising not enough and indulging in his favorite meal, cheese fries, too often.
Thomas wheezed, then coughed, then coughed again. Then a sort of coughing jag. Thomas’s big shoulders shook. He reached for the pitcher of water on the table a couple of feet away. He gripped the handle, then let go.
His eyes rolled back in their sockets.
Clarence Thomas collapsed, face down, on the table, his head going bonk as it struck the polished mahogany table top.
They all jumped up. Brett Kavanaugh made straight for the door and ran outside.
“Help!” he cried. “Call 911! We need paramedics in here right now!”
Samuel Alito and Elena Kagan eased Thomas’ big frame onto the floor. Neil Gorsuch started CPR.
Within seconds, a half dozen Supreme Court police officers swarmed into the room. Two of them pushed Gorsuch aside and resumed CPR. Kavanaugh shooed away a little knot of court staff who had heard him cry for help and come running.
The Justices had seen a lot of things. But this was a new one. No Justice had ever collapsed in conference just before casting a vote in a case.
A crew of paramedics had Thomas on a gurney, into an ambulance, and speeding on his way to George Washington University Hospital within three minutes. While the driver bobbed and weaved through D.C. traffic with the siren blaring, two paramedics delivered six jolts of electricity to the Justice’s stopped heart with a defibrillator.
The waiting team of doctors and nurses got busy as soon as Thomas arrived in the emergency room. They got busy massaging Clarence Thomas’ heart and injecting it with a big dose of epinephrine.
It was no use.
After thirty minutes of frantic effort, the cardiac surgeon stripped off his facemask and told everyone to stand down.
“I’m calling it,” the doctor said. “Nurse, note the time, please.”
It was 1:05 p.m. Clarence Thomas was dead.
The Justices took the news somberly in their chambers. Here and there in the big echoey halls and in the plush, wood-paneled chambers, muffled sounds of weeping and Oh my God were audible. All of Thomas’s law clerks were weeping, inconsolable.
Clarence Thomas DOA @ GWU Hospital 11:30 a.m. Had massive MI in conference/never got pulse back, one of them wrote in the electronic chatroom.
Only one law clerk replied.
Did they vote before he died?
Nina Totenberg’s story went up on NPR’s website at 2:15 p.m. “CLARENCE THOMAS’ SUDDEN DEATH LEAVES SUPREME COURT DEADLOCKED 4-4 IN TRUMP VS. BIDEN CASES,” said the headline.
Totenberg had been covering the court since the seventies, penning in-depth pieces about the court’s operations and palace intrigue for national news outlets. Longtime NPR listeners gave rapt attention to her broadcasts about this or that new court decision. In this piece, Totenberg highlighted a rule of Supreme Court procedure which was not well-known.
In the event of a 4-4 tie, the decision of the lower court stood.
In this case, the rule did not supply an easy answer. The two cases in front of the court had come from different Circuits. Each had reached a different result.
The Ninth Circuit had rejected Biden’s appeal, costing him an Electoral College win, by nullifying 55 electoral votes that would have gone to Biden, and throwing the election into the House.
But the House had deadlocked on who would be the next president. Then the D.C. Circuit had rejected Trump’s appeal of the Senate’s election of Harris as veep. That, Totenberg wrote, made Harris veep-ascendant under the twelfth amendment, clearing the way for her to be sworn in on January 20 as America’s forty-sixth president.
In his private dining room off the Oval, Trump watched his favorite broadcaster, Sean Hannity, his facial muscles a bit taut, deliver the bizarre news to Trump Nation on the Fox News Channel.
“I don’t know how to tell you this folks, so I’m just gonna tell you,” said Hannity. He spoke in his radio-guy baritone, mixing it with his earnest, New York-Irish-guy-you-can-trust look, a winning combination that had made him the highest-rated cable host on TV.
“America is in a constitutional crisis. There is an unprecedented situation at the Supreme Court. Some in the liberal media are saying that Kamala Harris is veep-ascendant and our next president. We’ll be right back after this and try to sort it all out for you. Stay with us. We’ve got Judge Jeanine Pirro coming up for you after the break as we bring you the latest.”
Just outside the Oval, Katrina Moran, Trump’s loyal young executive assistant, sat at her desk, awash in the tsunami of phone calls that flooded her telephone lines. She heard a muffled commotion coming from within the Oval. She guessed Trump was yelling and throwing things in there. It had happened before.
Inside, Mark Meadows knew better than to react at a moment like this. It was better just to listen and let it flow over you.
Ivanka and Jared sat sullenly on a sofa.
No one seemed to know where the First Lady was.
Trump was in tantrum mode all right.
“What the fuck! I mean, what the fucking fuck! What is wrong with these people? Get Brian Panish on the line, goddammit!"
It went like that on for a few minutes.
“This is bullshit! Doesn’t Roberts get to break the tie? He’s the Chief, right? Doesn’t he get two votes?”
Before Meadows could get a word in, a pair of burly Secret Service men clad in bulletproof vests hustled Brian Panish into the room. In college, Panish had played linebacker at Fresno State University. Now he looked like a big former linebacker, out of breath and sweaty, and maybe a little unsure of himself.
“We’ll be just outside, Mister President,” one of the agents said before shutting the door behind him.
“Brian, the president has a question for you,” Mark Meadows said.
A shattered piece of china lay on the carpet in smithereens. Panish wondered if it might have belonged to Jacqueline Kennedy or Dolly Madison.
Trump picked up where he’d left off.
“Brian, do I understand correctly, that when the Supreme Court ties four to four, the Chief gets an extra vote? To break the tie. Right?”
It was the first Panish had heard of that.
“I’m sorry, Mister President, there’s no such thing,” Panish said, doing his best to keep his voice even and down in the register as he caught his breath after his dash through the west gate and to thein Oval.
“So what are we doing? We get a rehearing. Right?”
“I’m sorry, sir,” Panish said. “I don’t think the rules allow us to call up the Chief Justice on the phone and ask him for a do-over.”
“That’s exactly what I want!” Trump exclaimed. “A do-over! We get a do-over! Clarence Thomas dropped dead at the table, Brian! That is un-pre-ce-dent-ed! Un-fucking-precedented!”
Now Trump was pacing around and around the room in his sock feet. He was near-hysterical, his eyes were bugging out of his head. Panish started feeling dizzy as he swiveled his head around and tried to keep an eye on his distraught client as he orbited the Oval.
Trump told Meadows to get John Roberts on the phone right now.
Panish spied a Big Mac and set of jumbo fries cooling, untouched, on the coffee table between the sofas.
He wondered if he was about to be fired. Trump knew how to fire lawyers.
When Trump paused to breathe, Panish interrupted the monologue.
“Perhaps you could appoint someone to replace Justice Thomas, Mister President,” Panish said. “You're still the president. There’s a vacancy on the Supreme Court. You could nominate a successor today. I suppose he would have to get through the Senate. Once he got to the court, the Justices could re-hear the case with a full complement of nine. I’m sure you could count on the new Justice voting your way.”
Trump looked at Meadows.
“Can I do that, Mark? Can we just replace this guy with another black guy, a very, very qualified black guy, so we can get this thing right? How long will it take?”
“I, uh, well, the cases are under submission, sir,” he said. “Who knows if they could re-hear it under the rules. They’ve already ruled. Besides, by the time you got a new Justice nominated and confirmed in the Senate, it would be weeks from now, after inauguration day. It would be too late, an enema to a dead man, as the saying goes.”
An enema to a dead man?
Brian Panish hadn’t heard that one before. He made a mental note of it. Maybe he could use it in a closing argument to a jury someday.
Mark Meadows looked to Panish for a lifeline. You’re the lawyer here, his expression seemed to say.
Panish lifted his eyebrows slightly and shrugged, hell if I know.
Trump could smell uncertainty in a subordinate like a hungry dog could smell raw hamburger carelessly dropped on the ground at a backyard barbecue from forty yards away.
“You’re fired, you mameluke! Get the hell out of here!”
Brian Panish gathered himself. His high school football coach had chewed his ass a few times during practices. But he had never been cut from the team. And no client had ever fired him. He guessed he wouldn’t miss Donald Trump very much. He didn't know what a mameluke was.
Panish turned and strode to the door that led out of the Oval Office without a word. From without, the door opened, as though on cue.
Maybe he could still catch the last flight out of Dulles and get back to L.A. that night, he thought.
At the lectern in the press room, Kayleigh McEnany was working hard, leaning in. As ever, the press secretary wore a sleeveless top, showing off her tanned toned arms. The usual big crucifix necklace hung over her blouse, like a brooch made of golden garlic meant to stun Fake News vampires before driving the wooden stake of righteousness into their cold godless craven tiny liberal hearts.
Above the din, Jake Tapper from CNN shouted at McEnany, trying to catch her eye from his seat in the back.
“Ms. McEnany, is the president planning further legal action in the courts? Who will be sworn in as the next president?”
McEnany had waited for this moment. She directed her sweet poisoned gaze at Tapper. As she bared her perfect white teeth, her upper lip curled slightly. She looked like a sorority sister about to humiliate a drunk dopey underclassman who had dared to ask her for her phone number during a fraternity party.
“I don’t know where you got your law degree, Jake,” McEnany sneered. “I attended the Harvard Law School. The Supreme Court will be rehearing this matter once a new Justice takes Clarence Thomas's place. The American people need the court to speak clearly on this matter. I look forward to seeing you at the president’s inauguration in a couple of weeks. Thank you all for coming.”
McEnany turned and walked to her left, down the steps, and out the back of the press room, leaving a shouting, confused mass of reporters behind her. The sweaty stupefied agglutination of journalists swarmed for the exits. The print and radio slobs raced back to their cramped stations in the basement of the west wing to write their stories. The glamor-puss TV people rushed outside to do their stand-ups on the west lawn.
The following Monday, Chief Justice John Roberts appeared before a joint session of the Congress. Lindsey Graham, the chairman of the Senate’s judiciary committee, welcomed him. After some aimless pomposity, Graham got to the point.
“Mr. Chief Justice, there are those in our country who wonder about this unprecedented situation,” Graham drawled. The drawl said, I’m educated and sophisticated and a U.S. senator, but I love South Carolina lowcountry barbecue and the God-fearing freedom-loving people back home who eat it for dinner.
Roberts nodded, as though to sympathize with the masses of people who just did not understand how the justice system works, especially at Our Court, as Roberts and his colleagues were fond of calling it.
“Can you address the concerns of those who believe that politics came into play in the way the votes broke down in these two cases?”
“Yes, I can, Senator,” the Chief answered. “As judges, we serve only the Constitution and the people. There are no politics at the Supreme Court. There is only the Constitution. We are as umpires in baseball. We just call the balls and strikes. Someone else decides who wins.”
In his den in Long Beach, John Ducey laughed out loud. What a joke, he thought.
In the fourth and final installment, chaos and riots engulf America. Kamala Harris rises to the moment.
➽ Dan Lawton is a lawyer and writer in California.