Second Term - A Novel of America in the Last Days (The End of America Series Book 1) (24 page)

FIFTY
THREE

Washington,
DC – Supreme Court of the United States

“The Honorable Chief
Justice and the Associate Justices of the Supreme Court of the United States.
Oyez! Oyez! Oyez! All persons having business before the Honorable 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!”

The Marshal of the
United States Supreme Court thus called to order the nation’s highest tribunal.
His words came from an earlier time, when Americans still called on God to save
their nation, and when the nation allowed His name to be used in a public
setting. Constructed in 1935, the Supreme Court building displays several
carvings or castings that depict the role of Moses and the Ten Commandments in
the western world’s jurisprudence. On the Eastern exterior pediment Moses is
predominately carved in the middle of several figures, holding two stone
tablets. In the Supreme Court Chambers Moses holds a stone tablet bearing
Hebrew letters. Doors to the Supreme Court Chamber show two tablets with Roman
numerals I-V on one and VI-X on the other. Ironically, the Court that presides
from this building has more recently ruled that allowing the depiction of the
Ten Commandments in a public building, such as a local court house, violates
the Constitution of the United States.

After the Clerk
called the Docket of the Court, the Chief Justice called the first case, which
was on the Docket as an emergency petition for a writ from the Court.

“This matter comes
before the Court on an expedited, I might say, highly expedited basis, with
five Justices agreeing to take it up as on emergency basis. It’s been since
Bush vs. Gore that we acted so expeditiously. In light of the pending
enforcement of the McAlister Act there may be some justification for the way we
are addressing this case, this issue, but I would not want to establish such a
fast track consideration for
every
suit challenging the
Constitutionality of an act of the Congress. Having said that, Mr. Attorney
General, it’s your law to defend. Defend it.”

“Thank you, Mr. Chief
Justice. Associate Justices of this honorable Court. The people of the United
States of America urge the Court to affirm the Constitutionality of the
McAlister Hate Speech and Hate Weapons Elimination Act. The various free speech
advocates, so called, and the gun owner and manufacturer groups that have
challenged the new law don’t dispute that the Congress
can
adopt
such
a law, that’s what Congresses do, they adopt laws. Frankly, some better drafted
than others. 

“No, instead, the
Appellants have only one argument. They urge the Court to strike down the
McAlister Act because, they argue, it violates the First and Second Amendments
of the Constitution of the United States. Their argument is that the American
people
can’t
rid themselves of the rampant hate speech and the millions
of hate weapons that kill tens of thousands of us every year. And why not?
Because of the handful of words used in these two vague, poorly-drafted,
last-minute Amendments. They argue….”

Justice Scanlon had
been visibly holding himself back to give the Attorney General his customary
few opening words before the Justices jumped in with their probing questions.
He could restrain himself no more.

“Mr. Attorney
General, with all due respect, this Court settled the issue of gun rights in
2008 in DC v. Heller. We held that the Second Amendment protects an
individual’s right to possess a firearm for self-defense. So, how can you
seriously argue that we….”

“Justice Scanlon,
also with all due respect, that was five years ago. The nation has changed.
Americans have evolved in their thinking about….”

“Are you saying that
the Constitution, without going through the amendment process, can be changed,
I think was your word, just because today’s public opinion polls may show some
transitory shifting opinion, which might shift back just as quickly tomorrow or
next year? Is that this government’s view of settled law?”

“No, Justice Scanlon,
this government’s view of the law is that when Congress enacts a new law the judiciary
gives to that new law its highest level of deference, and will only interfere
in those limited instances where the new law clearly violates an express
provision of the Constitution.”

“Whoa, Mr. Attorney
General, you don’t see a conflict between ‘the right of the people to keep and
bear arms shall not be infringed’ and the McAlister law that imprisons those
who seek to keep and bear arms? That’s not a clear violation of an
express
provision
? And hate speech
review panels
? What are
those
?”

“Justice Scanlon, the
government is only arguing that under the principle of granting the highest
deference to Acts of Congress, that this Court has almost always followed, that
you should uphold the McAlister Act. Any other holding….”

Justice Alinon, who
had also been itching to engage in the legal sparring, jumped in, “Mr. Attorney
General, you have fully ignored Justice Scanlon’s reminder to you that this
Court has already ruled in Heller that the Second Amendment protects individual
ownership of firearms. Two years later in McDonald v. Chicago, we held that the
Second Amendment applies to the states through the Fourteenth Amendment. So,
sir, what possibly makes you think that the government has any chance of this
same Court upholding the McAlister Act. It’s unconstitutional on its face. In
addition to which, the government can’t review speech to decide if it’s hate
speech or not. The Act is an egregious example of over-reaching by the
Congress, apparently goaded on by the Administration for which you work.”

The Attorney General
refused to lose his temper. Court observers later agreed that the AG was uncharacteristically
calm as he sparred with the Court’s most vocal and persuasive conservative members.
He soon revealed the basis for his confident manner.

“Justice Scanlon, not
to pick a nit, necessarily, but you just said this Court is, to use your
phrase, ‘the same Court’ as the Court that decided Heller and McDonald. It’s
not. The five Justices who decided those two cases are now four Justices. I
know you don’t like to discuss Court politics in oral arg….”

“
Nor will we now,
sir.
” The Chief Justice, exercising his prerogatives, cut off the
discussion. “We are here today to argue the law, not who has what votes.
Is
that clear
, Mr. Attorney General. May we proceed now to discuss the law?”

“My apologies, Mr.
Chief Justice, I’ll move on. The Appellants in their briefs urge the Court to
strike down McAlister under the principle of stare decisis
,
that is,
that the matter has been decided and must be ruled upon in the same way,
barring certain circumstances. I think that is what both Justices Scanlon and Alinon
are asserting, that under Heller and McDonald, the matter has been decided, and
the Court has to follow the precedent of those two cases.”

“Precisely, Mr.
Attorney General, precisely,” Justice Scanlon re-engaged, “and why isn’t that
the principle we must follow in deciding this case? Stare decisis demands that
we follow our precedent and strike down the McAlister Act, just as we struck
down the DC and Chicago gun ordinances. No difference. All three violate the
Second Amendment right to keep and bear arms. The Act is so obviously violative
of the First Amendment that a first year law student could write an opinion
striking it down.”

“Justice Scanlon, in
every oral argument the core issue eventually emerges, as it now has. The
principle of stare decisis, I say with the highest level of respect for this
tribunal, has been abandoned by this Court, and no longer has the meaning and
importance that it once enjoyed. When this Court….”

“What? Would you mind
repeating yourself, sir? I must have not have heard you correctly. We….this
Court….we have abandoned stare decisis?”

“Justice Alinon, this
Court in 1986 in Bowers v. Hardwick upheld the sodomy laws of 25 states in
America.” Knowing where this argument was going, Justice Scanlon was seen
holding his head briefly in his hands, before leaning fully back in his leather
high-back chair. His facial expression was not one of joy. “Yet, just 17 years
later, in 2003, this Court,
the same institution
that decided Hardwick,
ruled in Lawrence v. Texas that all sodomy laws were
unconstitutional
.
The Court, in an opinion by Justice Kennedy, even said about following
precedent in the Lawrence case that ‘Stare decisis is not an inexorable command’.
Honorable Justices, when the nation changes, the laws must change and our
understanding
of what the Constitution says must also change. The Constitution must
change, even if it’s not actually formally amended through the cumbersome
process of Congress and the states adopting the Amendment by super-majorities.
The nation shouldn’t have to put up with laws allowing prejudice against
certain Americans, any more than it should put up with laws, or Amendments,
that allow Americans to attack each other with hate speech and to slaughter
each other with hate weapons.”

Justice Scanlon
remained silent for the balance of the oral argument. In 2003, he led the
minority of the Court in the Lawrence case in the hotly-fought split decision,
even accurately predicting in open comments from the bench that the Lawrence
case would open the floodgates to gay marriage, which before Lawrence was
rarely even discussed. His mind briefly returned to his dissenting opinion in
Lawrence where he criticized the majority for using stare decisis as the
primary justification for not overturning Roe v. Wade, which would have ended
abortion on demand, but abandoning stare decisis in Lawrence, when it suited
the majority’s desire to advance what he called the “homosexual agenda”.

Justice Scanlon
recalled how Justice Kennedy tried to justify overruling precedent in Hardwick,
writing that the nation, since Hardwick, had experienced an “emerging
awareness”. He knew that this was a slippery slope indeed, as the Court could
abandon virtually any precedent under such an open-ended standard. Kennedy’s
citation of the European Court of Human Rights’ view on the gay rights issue
was the last straw for Scanlon, and had also been roundly criticized by many,
as Kennedy based the Court’s majority opinion on other nations’ case law.
Kennedy had even criticized a former Chief Justice of the Court for stating,
accurately, that historically homosexual behavior had not been legally or
socially acceptable. Justice Scanlon had observed in his hotly-worded dissenting
opinion that this Court has not only re-written existing law, it also re-writes
history to suit the majority’s purposes.

 Justice Scanlon knew
he could not now argue that the Court had to follow precedent, because the
Court in Lawrence had demonstrated that it had to do no such thing. The
Attorney General was correct that Justice Kennedy wrote in Lawrence that stare
decisis was “not an inexorable command”. Well then, he pondered, what is it? We
follow precedent when we feel like it, but we abandon precedent when it fits
our “emerging awareness” of whatever cultural agenda is regarded to be acceptable
for the day? Are we really now a “
rights de jour
” nation? We only have
the rights that are felt by five Justices to be acceptable for that day only?
If so, any Constitutional right would just be five votes away from drastic
modification, or even extinction. Just five votes. Goodbye, Rule of Law, he
thought, sadly.

 The attorneys for
the Appellants made their arguments, under withering questioning by the more
liberal members of the Court. Veteran Court observers wrote in their articles
and blogs that night that the government was expected to win the case,
conjecturing that the Court would, in a 5-4 split uphold the McAlister Act.
Newly seated Justice Newton, was known to be opposed to private ownership of
firearms. It had been conjectured that she had written a strategy memo for the
President before she ascended to the high Court, advising him on the text of
the McAlister Bill to be considered by Congress. Nevertheless, she refused to
recuse herself from the Court’s consideration of the Constitutionality of the
new law. Justice Newton appeared to confirm those views in her single question
to the gun owners’ lead Counsel.

“Tell me Counsel, one
reason, just one, I’m only looking for
one reason
, to justify the Court
striking down an Act of Congress that has the potential of saving tens of
thousands of precious lives and of stopping all the hate speech that spawns
violence. Just one little reason, please, Counsel?”

The other indicator
as to how the vote to be taken the next day in the Court’s stately Conference
Room would turn out, was a rare statement by Justice Thomson at the conclusion
of oral argument. “Mr. Attorney General, we all know, I think, how this case will
come down. What none of us knows,
yet
, is the impact of this decision,
not
only
on our First and Second Amendment rights, but on all
those other
Constitutional rights that we
used
to think we had as Americans. I
shudder to think what is happening to my country.”

On Friday afternoon,
the Supreme Court posted an official notice in the McAlister Law Constitutional
challenge case. The quasi-opinion was a model of brevity: