SCOTUS conference call
Justice Alito emailed the Supreme Court he wouldn’t be at work that day. The Court had a weird policy that anyone who needed a sick day was required to email the entire office the morning that he’d be absent. Whoever was the designated beadle for the week would add the person who emailed to the office calendar. Justice Kagan’s clerk Alyssa was the beadle this month. As soon as Justice Alito emailed the Supreme Court he wouldn’t be in that day, Alyssa added him to the calendar. Alyssa resented being the beadle. But she also couldn’t deny that completing menial tasks like this, or like cashing in Justice Kagan’s winning scratch-off tickets or knocking off a late fee from Justice Kagan’s credit card statement, provided her some small satisfaction.
The office calendar was an endless source of information for the Supreme Court’s nosiest employees. Justices Alito or Breyer could spend a few minutes every morning clicking through the dates, discovering who’d be out when, who had called in that morning, who had planned to leave early. Depending who was the beadle that month, sometimes the entries contained little bits of personal information. In January, before he died, Justice Scalia took an afternoon to “soak swollen feet.” Last month, Justice Alito took a four-day weekend to irrigate his sinuses. Justice Kennedy would grouse that these fuller entries violated HIPAA, and they did, but everyone hated him right now, so his protests didn’t much matter.
It was a bad day to call in sick because Chief Justice Roberts wanted to discuss the Texas affirmative action case. Deliberating a case down a member was like an orchestra playing without one of its instruments. The music still sounded fine but sometimes, during a solo maybe, you’d notice. Maybe it was more like a baseball team down a player. Justice Alito was definitely not a short stop, more like an outfielder, so the Chief thought they could likely manage without him.
Using the conference room as a gym earlier in the term had been a disaster, but the Chief still liked the idea of not using that big, dumb table. It was so Lee Iococca. Conference rooms were emblematic of workplaces he knew were going out of fashion, companies that were going out of business. The trend, he read in a profile of the CEO of Zappos, was open spaces, full of twentysomethings on their phones and drugs, eating snacks prepared by in-house celebrity chefs. He couldn’t condone drug use but he could hire a chef. Jake connected him with his roommate who raised chickens and was an expert with eggs. The Supreme Court would debate Fisher v. UT while eating omelets.
Even though his vote against affirmative action was a sure thing, Justice Alito would phone into the deliberations. He had phoned into conference many times already this term and his colleagues were accustomed to his sick day voice. It was the same as his regular voice but he fake coughed more. Once when he thought he had diabetes, he kept having to go to the bathroom, and dropping the call. It got so annoying that Justice Scalia told him to put a potato chip bag clip on his dick or else he’d never get to write a majority decision again. It wasn’t really up to Justice Scalia to threaten that punishment but if the Chief argued with him, it’d be this whole thing. Sometimes it was easier to let Justice Alito be bullied. Maybe he didn’t come to work because the experience was so unpleasant for him? An issue for another morning. There were admissions policies to change and eggs to fry.
“This is the exact same case we heard three years ago. Abigail Fisher still did not get into the University of Texas,” the Chief began.
“And she is still not over it,” Justice Kagan interrupted. Justice Sotomayor snapped her fingers like she was in a non-exclusive sorority with Justice Kagan.
“Justice Kagan, because this is the same case as three years ago, and you argued part of that case in your capacity as Solicitor General, you’re recused and you’re free to leave,” the Chief continued. Justice Thomas snapped his fingers to mock Justice Sotomayor until he remembered that he liked Justice Sotomayor now.
“That’s right!” Justice Kagan said. She immediately kneeled on one knee and made a ‘yes’ motion with her arm. As usual, Justice Kagan farted when she knelt. The other Justices were so used to her farting in their presence that they didn’t react when they heard the sound. Justice Ginsburg did open her spiral notebook (she took notes by hand; handwriting helped focus her.) and made a hash mark on the back page. There were twelve other hash marks already on the paper.
“That leaves seven of us, making a tie effectively impossible. Deadlock won’t be an issue, finally,” the Chief said. “If we call Justice Alito at home.”
Justice Thomas groaned but he just had heartburn. He was as used to calling Justice Alito at home as he was to smelling Justice Kagan’s farts.
“We’re going to go around the room and say our vote. Before you say your vote, let the chef know what kind of omelet you want and if you want it made with fresh eggs or Egg Beaters.”
“Egg beaters. For those of us who didn’t receive the eggs are now healthy memo,” Justice Kagan added.
“There’s no memo to receive because the FDA is too incompetent to circulate one,” Justice Alito said. He had dialed into the conference. The Chief regret bringing up Egg Beaters. Anything tangentially related to food guidelines, and therefore Michelle Obama, could be a trigger for his conservative colleagues.
“Justice Alito, thank you for joining us. How are you feeling?” the Chief perfunctorily asked.
“I have chest pain under my rib cage and painful coughing.”
Justice Thomas googled symptoms of mesothelioma. He showed his phone to Justice Sotomayor who winked at him. Then she remembered that Justice Thomas was about to dismantle affirmative action policies at all public universities, and thought again about being friendly with him.
“I feel uncomfortable that you guys can declare affirmative action unconstitutional with just four votes,” Justice Sotomayor said. Justice Thomas pulled his phone away from Justice Sotomayor. It was going to be like this, he thought.
“Your omelet order?” the Chief asked. He already didn’t like where this was headed, but he couldn’t let another conference spiral into nonsense. Omelet orders in.
“Greek but no olives,” Justice Sotomayor cooperated.
“How do we even know that four votes will be enough to make something unconstitutional? It took five votes to make it so. How can it only take four to undo it?” Justice Kagan asked.
“I thought she was leaving?” Justice Kennedy asked the Chief.
“There were five votes, yes,” Justice Alito said from home. “But Retired Justice O’Connor said in Grutter that we’d only need affirmative action for twenty five more years. So this isn’t any old decision we’re reversing. It’s one with an expiration date.”
“She didn’t mean it like that,” Justice Ginsburg said.
The Chief did not feel good about where this was headed. Discord seemed imminent.
“How did she mean it then?” Justice Thomas asked. It wasn’t like him to care what a liberal like Retired Justice O’Connor meant by something, but he was getting tired of the Constitution not being colorblind.
“She meant it figuratively. Like when racism is over,” Justice Breyer offered.
Justices Ginsburg and Sotomayor looked at each knowingly because they knew racism would never be over.
“Let’s ask her what she means. Is she here today?” Justice Alito asked.
The Chief muted the telephone. “Come on, everyone. Let’s not bring Retired Justice O’Connor into this. She’s at the Montessori today. She’s not a Supreme Court Justice anymore. Figurative or not, the twenty-five years thing was just dicta. Calling her in here every time someone wants to clarify something she wrote is bad practice. She’s not playing ball here anymore.”
The Justices murmured to each other.
“He’s your boy,” Justice Thomas said to the Chief about Justice Alito. “Rein him in.”
The Chief unmuted the phone. It sounded like Justice Alito was watching the Price is Right in the background? The Chief took three deep breaths. “We’re not going to asked Retired Justice O’Connor what she meant when she wrote that in twenty five years the University Michigan Law School would not need to consider race in its admissions decisions. Instead, we’re going to say how we’re voting in this case. We’re going to give our omelet order. And Justice Alito, if the chest pain under your rib cage isn’t too unbearable, and you’re at work tomorrow, you’re going to figure out if we can make affirmative action unconstitutional with only four votes.”
“No,” Justice Ginsburg piped up. “You’re not doing this with four. Especially when your fourth vote is home today. We’re not ruling on university admissions policies when our own admitted students can’t even show up to work. Wait until Merrick Garland gets here and convince him, or spend the summer trying to flip the Rust Belt for Trump.”
Everyone was really pissy today, the Chief thought. Implying he’d campaign for Donald Trump to influence the result of a court case? Justice Ginsburg was angry. And if she were angry, the other liberals would be angry soon. How to resolve this? What, again, would the CEO of Zappos do? Indulge a rogue employee? This workplace culture stuff was so tricky. Justice Ginsburg seemed to like reading her dissents from the bench, so maybe if he asked her to explain why she thought the way she did, that could cheer her up?
“Why should someone get something simply because of his or her race?” the Chief asked Justice Ginsburg.
“Right,” Justice Kennedy said. “It’s like how you guys support Hillary just because she is a woman.” Justice Kennedy had worsened an already ham-fisted question.
“Hold up,” Justice Sotomayor chimed in. “First, Justice Kennedy, go fuck yourself. Second, where the fuck is my omelet?” She stood up for this part. “Third, let me tell you why I support Hillary.”
“I didn’t know Hillary when she was at Yale. She was a decade ahead of me. But I studied in the same library she studied in. I ate at the same shit cafeteria. I got passed over by the same white shoe law firms. This woman calculated that the only way for her to get to the White House, a goal she held since kindergarten, was to attach herself to the man who she knew in her bones would one day become president. She knew that he had the x-factor to get there, and though he was deeply flawed she knew that she, only she, could pull him over the finish line. And then he’d owe her, and help her do the same thing. And so she married him. Hillary Rodham, young Republican from Illinois, marries the charismatic redneck, Bill Clinton, so that she could one day become president herself.”
“Justice Sotomayor, the case we’re discussing?” the Chief asked. A Hail Mary to get these deliberations off the Clintons before another Kennedy storm out.
“I’m getting there, Chief. I’m voting for Hillary because she plays the fucking long game. She’s been playing it for years. Marrying Bill. Hillarycare. The Senate. The State Department. The Foundation. The email servers. This game has lasted decades.”
“Your omelet is ready.” The chef handed Justice Sotomayor her breakfast.
“I’m voting against Abigail Fisher because she does not play the long game. In fact, she’s not playing any game whatsoever. She’s calling in sick. She’s whining about the fucking rules from the sidelines.”
“And you’re mixing your metaphors,” Justice Alito said from the phone.
Jake could see that the Chief had completely lost control of conference again. He needed help up there. How could Jake divert everyone’s attention away from controversy drummed up by right wing interest groups and towards a more mindful workplace?
“Justices?” Jake said. He hadn’t spoken to them as a group since the sensitivity training, a disaster, so his voice shook. “Let’s make this less stressful. Instead of what you think about affirmative action or Abigail Fisher or anyone running for President, why not say what your walk-up song is. Like if you were on a Major League Baseball team, the song they’d play when you walk up to bat.”
“What a fun idea,” Justice Ginsburg said.
“A Milli,” Justice Kagan screamed. She still hadn’t left the room, even though she had been recused.
Seconds later, Justice Kagan rescinded. “Nevermind, Get Ur Freak On. They’re both canon but I want a walk-up song from a woman rapper. Because she is a woman, and because it’s a better song.” Justice Sotomayor snapped her fingers.
“Jake, what was that song I liked from SoulCycle the other day?” Justice Breyer asked.
“From the Weezer ride?”
“No, from the Justin Bieber comeback ride.”
“You liked Where R U Now.”
“Great choice,” Justice Kagan said. “My favorite comeback since the second presidency of Grover Cleveland.”
“Anything Chris Stapleton,” Justice Thomas answered.
“Joshua Tree is my favorite album,” Justice Alito said from the phone. “I liked Bono before he thought it was his job to heal the wounds of 9/11.”
“Lol,” Justice Thomas said, and he pronounced it ‘loll.’ He muted the phone. “Watch him say, Where the Streets Have No Name,” he said to Justice Sotomayor.
“Where the Streets Have No Name,” Justice Alito said.
Justice Sotomayor took a bite of her omelet. “I pick New York Groove.”
“Yessssss,” Justice Ginsburg said. “I want, You Make Me Feel So Young.”
“The Promentory from Last of the Mohicans, obviously.”
“That’s a bit long,” Justice Kagan pointed out.
“Isn’t this only hypothetical, Jake?”
“Well, yeah. I mean we could start a softball team maybe? But hypothetical for now.”
“Jake, I’ll pick Jay-Z’s Big Pimpin’,” the Chief said. Justice Kagan unlocked her phone and started playing Jay-Z’s second best song. Everyone was enjoying each other’s company finally.
“What is everyone else picking?” Justice Alito asked. His colleagues had never unmuted him. Justices Kagan, Sotomayor, and Thomas all snapped their fingers.
The Supreme Court hadn’t accomplished anything productive that morning. In fact, it seemed like eight Justices, and especially seven, wouldn’t be enough to rule on the constitutionality of affirmative action. Regarding matters of law, the Court was more fractured than ever. But Jake did teach the Chief Justice a valuable lesson about teamwork. All of his colleagues, even the ones who hate baseball or who call in sick, knew what their walk-up song would be. From there you build goodwill.