WASHINGTON – With just one Monday of decision left this month, somewhere deep in the Supreme Court, the nine justices are sitting at a table, staring at a whiteboard. The board is blank except for the bullet points DOMA, VRA, Affirmative Action (this is BIG!) and the word Constitution??? in large, uneven letters from when Antonin Scalia was taking notes earlier. Around them are empty Chinese food containers, coffee mugs and the refuse of several days in a room without sleep.
Our deadline is coming up, Chief Justice John Roberts says. He goes to the board and picks up a pen.
I work better on a deadline, Anthony Kennedy says for a third time. It’ll be fine.
Will it, though? Ruth Bader Ginsburg asks. You always say that, and then sometimes it isn’t.
Clarence Thomas says nothing.
Idea, Scalia says. What does the Constitution say? What did the Founders want? WWJD?
Sonia Sotomayor mutters something that sounds like Not this again.
WWJD? Elena Kagan asks.
The J is for Jefferson, Scalia says. It’s clearer if you read where I have the full phrase tattooed on my thigh. I can show –
Please, not now, Roberts pleads. OK, so what do we have? People seemed to like our gene ruling. Maybe we could do something inspired by that.
Things were so easy a few years ago, Kagan says. I felt like I had an opinion on everything. I could rule for hours. I could rule in my sleep. But honestly today I’m just not feeling it. Can’t we tell America, look, let’s agree to disagree on this one?
Stephen Breyer emits a hollow laugh.
The deadline is going to inspire us, Kennedy says.
I keep telling you, go back to the Founders, says Scalia. What would they have said about these things?
Shut up, Justice Scalia, Breyer says.
John Marshall would never have said that, Scalia mutters.
I know what I want it to be like. I want it to be a big, but not overreaching, statement that invokes precedent and has a few humorous but clear analogies thrown in. I want it to be a classic decision that future generations will look back on and say, Boy, they really got it right. Those dissents were good, but the majority really ruled on that one,’ Samuel Alito sighs and spins a pencil in his fingers. But every time I sit down to actually write – poof. It vanishes.
Which one is this? Roberts asks.
Wait, we still have all four of those left? Alito says. I thought we’d already done at least two. I thought that was why we were allowed to participate in Softball Week.
I won’t hear any snide remarks about the softball, Roberts cuts in.
You just say that because you got to spend all day calling balls and strikes, Ginsburg says.
Those were all strikes, Scalia says. Also, the Founding Fathers never played softball.
Would you shut up about the Founders? Sotomayor says. I doubt some of the Founders would have let Justice Kagan or me own property apart from our husbands.
Well, Scalia says, neither of you have husbands.
Oh my God, Breyer says.
Kennedy starts scribbling. The rest of the room falls silent and watches him.
What is it? Sotomayor asks. Do you think you’ve got it?
Kennedy holds up a detailed picture of Roberts high-fiving a squirrel. It just came to me, he says. Is this helpful?
No, Ginsburg says.
Scalia shakes his head. The Founders would have drawn a marmoset.
Oh my God, Antonin, Breyer says, the Founders didn’t have flush toilets, and you use those all the time.
Do I? Scalia asks, glowering. Maybe I just go stand inside them from time to time to be polite. Maybe I conceal an 18th-century chamber pot beneath my robes. Maybe I’m wearing a tiny tri-cornered hat somewhere on my person as we sit here. Maybe –
There is a knock at the door. Roberts frantically writes on the board – Precedent! Concur/dissent, Softball was a good idea! Jurisprudence, and lots of it! – to make it appear something is being accomplished.
Somebody ordered pizza? a voice asks.
Thomas silently raises his hand.
Finally, someone has done something productive, Ginsburg says.
Wow, the delivery guy says, unloading pizzas divided, 5 to 4, with very different toppings. So this is the Supreme Court? Are you Justice Roberts? I’m a big fan. I loved Citizens United. And Obamacare? Man! Really subversive, totally wild. Can’t wait to see what you come up with next. He glances at the board. Looks like you’re making some good progress.
Oh, Roberts says, smiling a little too wide. Oh yeah. Tons of progress.
We’re basically done with the decisions, Kennedy says. We just like to polish them before we send them out.
Yeah, everyone says, unanimously. They smile in silence as the pizza guy leaves.
Whew, Alito says. That was close.