The Tenth Justice: Chapter 3


Standing in front of Armand’s pizzeria, Ben enjoyed the cool late October breeze. As summer officially ended, so did Washington’s unbearable humidity. Without his jacket, and with his shirt sleeves rolled up to his elbows, Ben relished the quiet that blanketed the area. Already forgetting the green of summer, he stared at the brown and orange hue that decorated the trees along Massachusetts Avenue. Relaxed, he waited for his lunch companion. After a few minutes, he felt a tap on the shoulder. “Ben?”

“Rick?” Ben asked, recognizing the voice of Justice Hollis’s former clerk. Rick wore an olive-green suit and a paisley tie. His most noticeable features were his eyes, puffy and slightly bloodshot. With thin, blond hair that was combed to perfection, Rick was tall and rangy and older-looking than Ben had anticipated. “It’s nice to finally have a face to put with your voice,” Ben said as they shook hands. “After all the advice you’ve given me in the last two months, I figured it was time to find out what you look like.”

“Same here,” Rick said as they walked into the restaurant. “So how has Hollis been treating you?”

“He’s fine,” Ben said as they sat down at a table in the corner. “It’s been about a month and a half since he got back from Norway, so I think I’m finally used to his idiosyncrasies.”

“He can be extremely odd, don’t you think? I never understood why he would write only with pencils. Do you think he’s allergic to pens?”

“I think that’s just part of his personality,” Ben said. “In his mind, nothing is written in stone; it’s all changeable. I just wish he wouldn’t eat the erasers from his pencils.”

“He still does that?” Rick laughed. “That used to make me sick.”

“It’s one thing to eat a clean eraser. I’m all for clean erasers. But he gnaws on the dirty ones. One time I saw him erase half a sheet of paper. There was rubber fallout all across the paper and the eraser itself was pitch-black. He put that sucker right in his mouth and started chewing. It came out with nothing but metal showing. His teeth were all black, it was nasty.”

“Ah, yes, I do miss those days,” Rick said, looking down at the menu.

“Don’t even bother with the menu,” Ben said. “There’s only one thing to get here.” Ben pointed to the unlimited pizza bar that was Armand’s specialty. “All the pizza you can eat for only four ninety-nine. It’s just about the greatest thing in the city as far as I’m concerned. I can’t believe you never heard about this place.”

“I clearly missed out,” Rick said, surveying the various pizzas.

After giving the waiter their order, Ben and Rick walked up to the pizza bar and grabbed three slices each. When they returned to the table, Ben said, “Meanwhile, thanks again for the advice on the Scott case. I didn’t realize Hollis was so adamant about ruling for defendants on those.”

“Our fair justice has never seen a Sixth Amendment case he didn’t like,” Rick said. “By the way, how did that death penalty case turn out?”

“You know I’m not supposed to tell you that,” Ben said, forcing a slight laugh. “We signed an ethics code—everything’s confidential.”

“I signed the same agreement,” Rick said, folding up a slice of pizza covered with onion and garlic. “And I’m still bound by it. Believe me, I know what it’s like to sit in those chambers. The responsibility never ends.”

Ben looked over his shoulder, then leaned over to Rick. “We’re working on the dissent. The justices voted five to four to fry him. It was a heartbreaker.”

“Hey, don’t let it get you down,” Rick said. “You guys did a great job in setting up that case. You can’t—”

“I know, I can’t win them all,” Ben said. “I just wish we could’ve saved that guy. He got screwed by the trial court.”

“He’s not the first, and he’s certainly not the last,” Rick said. “So what else are you working on? What’s happening with the CMI merger? Doesn’t that come down next week?”

“Actually, it probably won’t come down for another few weeks. Blake and Osterman asked for more time to write their opinions. You know how it is—merger cases always wind up confusing everyone. It takes forever to sort through all the regulatory nonsense.”

“So who wins?”

“It was actually pretty amazing,” Ben said, once again checking over his shoulder. “When the justices were voting in Conference, it was five to four against CMI. At the last minute, Osterman took Dreiberg out of Conference and into his chambers. According to Osterman’s clerks, Osterman then convinced her that the regulations ran in favor of CMI, making the merger with Lexcoll completely legal under the Sherman Antitrust Act. Charles Maxwell is going to skip to work when this decision comes down. Rumor says he’s spent well over five million just on legal expenses to get the case up to the Court.”

“Any idea what made Dreiberg switch?”

“None. You know how Osterman is. He probably leaned on Dreiberg intellectually and Dreiberg gave in. It’s hard for the newest justice to stand up to the chief justice.”

“Especially when she’s a woman,” Rick said.

Surprised by Rick’s comment, Ben said, “I wouldn’t say that. Even if Dreiberg were a man, she’d have a hard time facing Osterman head-on.”

“I guess,” Rick said.

“What time is she coming over?” Nathan asked, polishing his shoes on the living-room coffee table.

“She should be here any minute.” As Ben was working on his own shoes, he noted Nathan’s meticulous rubbing and buffing. “How about I just pay you to do mine?”

“This is a passing of tradition, boy,” Nathan said. “From father to son. From son to friend. Polishing shoes is a part of life.”

“I can’t believe I’m doing this,” Ben said, rubbing the black polish into the loafer. “I feel like my grandfather. I mean, only old people shine their own shoes. I’m probably aging as we speak.”

“Age has nothing to do with it,” Nathan said. “I’ve been self-polishing since I was twelve.”

“Yeah, but you also iron your socks.”

“Just my dress socks,” Nathan corrected. “As if you’re one to speak.”

“Don’t give me that,” Ben said. “I may be organized, but you’re King Anal.”

Nathan brushed the side of his shoe and added a little spit. “In your dreams.”

“Is that why your credit cards are alphabetized in your wallet? Or why none of the clothes in your closet can ever touch each other?”

“I just want everything to have its own personal space,” Nathan explained.

“Sure you do—and it’s not because you’re a freak.” Staring at the loafer on his right hand, Ben added, “If Lisa saw me doing this, she’d have a field day.”

“I can’t believe you still haven’t brought her by.”

“I think you’ll really like her,” Ben said. “She’s got spunk.”

“Then why don’t you date her?”

“I can’t,” Ben said. “We’re too close. It’d be like dating my sister.” He slipped his feet into his gleaming loafers.

When the doorbell rang, Ben went to answer it. “Nice place,” Lisa said as she stepped inside. “Better than I thought it’d be.” Against the far wall in the living room sat a large, deep-blue couch. A smaller striped love seat served as a way station for jackets, briefcases, wallets, and keys. Both had been bought with the proceeds from the roommates’ first paychecks in Washington. Over the larger couch hung an enormous, empty gold frame, surrounding a splattering of red, blue, yellow, and green paint, which Eric had painted directly onto the wall when they first moved in. In Eric’s words, it was “primary colors in action”; in Ben’s words, “a nice first attempt—if you’re into the whole Jackson Pollock thing.” In Ober’s words, “it didn’t suck.” Nathan proclaimed it “a disaster.”

Ben walked into the living room with Lisa and introduced Nathan, who was still polishing his shoes.

“Nice to finally meet you,” Lisa said. Sniffing the air and noting the shoeshine kit, she added, “If you guys want, we can go catch a movie. They have a senior citizens’ discount.”

“Make fun if you like,” Ben said.

“Oh, I definitely like,” she said, glancing around the room. “By the way, what’s with the coffee table?” The coffee table in the center of the room was actually a poster of Elbridge Gerry—according to Ben, the country’s worst vice president—mounted on a piece of Formica, resting on concrete blocks.

“That’s the most politically obscure coffee table in town,” Ben explained proudly. “Where else can you rest your feet on the face of someone who refused to sign the U.S. Constitution?”

“You’re really freaky sometimes, y’know that?” Lisa said. Walking past the glass dining-room table that was set up between the kitchen and the living room, Lisa entered the kitchen and approached a calendar attached to the refrigerator. “Is this a Miss Teen USA calendar?” she asked, noticing the logo under the picture of a young girl in an evening gown. Flipping through the months, she said, “This is pathetic.”

“I knew you were a flipper,” Ben said, watching her from the living room. “There are two types of people in this world: those who never look ahead on a wall calendar so they can be surprised every month, and those who flip ahead, racing to see all the months at once.”

Lisa headed back to the living room. “I thought you said there were only two types of people: spaghetti-twirlers and spaghetti-slurpers.”

Ben paused, then eventually said, “Okay, there are four types.”

Suddenly, Ober walked in the door. “I’m home! Is the lesbo here yet?”

“Actually, there are five types,” Ben said.

As Ober approached Lisa, Ben shut his eyes and prepared for disaster. “You must be Ober.” Lisa extended a hand. “That’s funny. Ben said your palms would be much hairier.”

As Nathan laughed, Ober said, “Really? He said you’d be more butch.”

“He said you couldn’t walk upright,” Lisa countered.

“He said you could pee standing up.”

“Cute,” Lisa said. “He said you didn’t have opposable thumbs.”

“I don’t get it,” Ober said, stumped. “What’s an opposable thumb?”

“If you didn’t have them, you’d be hanging out with monkeys. Or reptiles. Maybe bacteria. Lower life forms—”

“Ooookay, I think we get the idea,” Ben interrupted, stepping between his two friends. “I can see you two will get along great. Now what are we doing for dinner?”

“I thought Lisa was cooking for us,” Ober said, taking a seat next to Nathan on the large couch. “No—that’s right—she was going to fix my car.”

“Don’t start,” Ben warned. “How about we order in some Chinese?” With a nod, the three agreed and Ben called in the order. As he hung up the phone, Lisa reached into her bag. “Ben, I meant to show you this.” Pulling out a ten-page document, she explained, “I just pulled this off of Westlaw. It’s our first published opinion.”

Ben smiled as he read through the official document. “I can’t believe it! These are our words! This is the law!”

“I still don’t understand this,” Nathan said. “You decide the cases for the justices? Is that legal?”

“We don’t decide the cases. We just write the opinions,” Ben explained, waving the document in the air. “Every Wednesday and Friday the justices have Conference, where they vote on the cases. Based on our memos and research, they determine what their decisions will be. Say there’s a civil rights case before the Court. The justices vote and five think the defendant is liable, while four think he’s not. He’s therefore liable. But the decision doesn’t just get announced. The actual opinion has to be assigned and written. That takes from one to six months. So if Hollis is assigned the opinion, he comes back from Conference and says to me and Lisa, ‘We’re writing the majority opinion; the defendant is liable. I’d like to see you approach it from a Fourteenth Amendment perspective.’ We take a shot at it and hand it in to Hollis. Usually, he makes significant changes before it emerges in final form, but it’s still primarily our work.”

“And here it is,” Lisa said, pulling the document from Ben’s hands and giving it to Nathan. “Hollis decided this months ago, but it just came down this week.”

“Very impressive,” Nathan remarked.

“See this paragraph over here?” Lisa pointed to the page. “We worked on that for two days straight. Hollis didn’t want to overrule one of his earlier decisions.”

The doorbell rang. “Food. Food. Food,” Ober said, running to the door.

“It’s not the food,” Ben called out. “We just ordered.”

Ober opened the door, but was disappointed to discover Eric.

“Sorry, I forgot my keys at the office,” Eric said, running his hands through his uncombed hair.

“Perfect,” Ober said, excited. “C’mon, there’s someone I want you to meet.” Dragging Eric into the living room, Ober said, “Lisa, this is Eric. He’s a virgin.”

“You’ll have to forgive him,” Eric said as he shook Lisa’s hand. “He’s so proud of me, he can’t contain himself.”

“Nice to meet you,” Lisa said. “I’ve heard a lot about you.”

“You, too,” Eric said.

Ignoring Ober, Ben asked Eric, “Do you want to have some dinner? We ordered Chinese. It should be here any minute.”

“That’d be great,” Eric said. “Meanwhile, have you heard about the CMI merger?”

“No. What?” Ben asked.

“I was in the newsroom when it came across the wire. Just as the market closed, Charles Maxwell bought another twenty percent of Lexcoll stock. Lexcoll stock shot up fourteen points in the closing three minutes, and investors are predicting CMI will rocket up thirty percent by nine-thirty-five tomorrow morning. The traders on the floor were ripping their hair out.”

“Maxwell couldn’t have known, could he?” Lisa asked Ben.

“No. No way,” Ben said, a chill running down his back as he remembered his conversation with Rick. Maxwell couldn’t have known, Ben told himself. “There’s no way. It was a lucky guess. The Court’s decision isn’t completely unpredictable. Maxwell must’ve spoken with his legal experts.”

“Whatever he knew,” Eric said, “they’re calling it the riskiest decision Maxwell’s ever made. If he’s right, he’s a billionaire, but if the Court denies the merger, he’s invested all of his money in the worst communication alliance in history.”

When Ben arrived at work the next day, a memorandum was sitting on his desk. Addressed to all clerks, the memo stated that due to the recent circumstances regarding the CMI merger, everyone should be reminded that all Court information is extremely confidential and should not be released under any circumstances. Suddenly, Ben felt a hand on his shoulder. “Who the f—” he yelled, spinning around.

“Take it easy, big guy,” Lisa said.

“You scared the shit out of me,” Ben said, wiping his forehead.

“Can you believe this memo?” Lisa was holding up her own copy. “Who the hell do they think they are? Is this an accusation or what?”

“I don’t think it’s so bad,” Ben said as he fidgeted with his tie. “I think it’s just a reminder. I’m sure the press is all over them to see if Maxwell’s guess was correct.”

“Well, the decision’s been pushed up to next week, so all the vultures will know soon enough it he’s a guru or a goofball. Listen, I’m going to get some coffee. You want anything?”

Ben shook his head. When Lisa left the office, Ben went straight to his Rolodex and looked up Rick’s number. After picking up the phone and dialing the number, he was surprised to hear a mechanical female voice say, “The number you have reached is no longer in service. Please check the number and dial again.” Confused, he redialed, double-checking each digit. “The number you have reached is no longer in service. Please check the number and dial again.”

Slamming down the phone, Ben crumpled the Rolodex card in his hand and threw it against the wall. Damn, he thought. What the hell do I do now? He picked up the phone, and quickly dialed information. “In D.C., I’m looking for the phone number of a Rick Fagen. F-A-G-E-N.” Ben tapped his pen nervously.

“I’m sorry, sir,” the operator said. “I have no Fagens listed.”

“How about if I give you his old phone number? Can you see if there’s a forwarding number?” Ben asked.

“I can try,” the operator said. Ben ran to the other side of the room to retrieve the Rolodex card. “Sir, are you there?”

Ben raced back to his desk and sat in his chair. “I’m here.” He read off Rick’s old number.

“I’m sorry, sir,” the operator said, “that number is no longer in service.”

“I know that,” Ben snapped. “That’s why I asked if there was a forwarding number.” Bristling, he asked, “Can you tell me where the bill was forwarded to?”

“I’m sorry, we cannot give out that information.”

“Thanks,” Ben said, hanging up the phone. In a full-fledged sweat, he put his forehead down on the desk. There must be an explanation for this, he told himself. Rick just moved. There’s no reason to panic. There’s nothing to be upset about. He redialed information and got the number for the phone company. “Hi, my name is Rick Fagen,” Ben said to the operator. “I recently disconnected my number, and I think I might’ve given you the wrong forwarding address. Can you check it, because I don’t want to be late on my payments.”

“Let me transfer you to the accounts payable department, Mr. Fagen,” the operator said.

“Can I help you?” the new operator asked.

Ben described his situation again.

“What was your old phone number?”

Ben read the number off the crumpled Rolodex card and waited. Finally, the operator said, “Mr. Fagen, I’m glad you called. You never left a forwarding address.”

“Are you sure?” Ben picked up a pen. “What address do you have?”

“All we have is the old one,” the operator said. “Seventeen eighty Rhode Island Avenue, Northwest. Apartment three seventeen.”

“That’s the old one, all right,” Ben said, writing down the address. “Well, as soon as I have a new address, I’ll be sure to let you know.” Ben hung up, then slid back in his chair, trying to think of another way to track down Rick. After checking the index on the Supreme Court directory, he left the office and ran down the hallway. Ben raced down the suspended spiral staircase, an architectural marvel that was off limits to everyone but staff. Running through the Great Hall, he followed his mental road map of the Court’s layout, weaving his way through the corridors to the personnel office.

“Can I help you?” a woman asked from behind the counter.

“Hi, I’m Ben Addison, a clerk with Justice Hollis. We were trying to have a reunion for all of Hollis’s old clerks, and I remember filling out all that paperwork for this office when I first started. Do you happen to have a list of where some of the old clerks might live?”

“Oh, we’ve got everyone here,” the woman said, proudly. “Since we do the security forms, we know every place you’ve lived in the past ten years.”

“Well, all we need is the address of one past clerk. We have everyone else.”

“Security card?” the woman requested.

Ben reached into the front pocket of his dress shirt, pulled out his Court I.D., and gave it to the woman. After swiping it through a small, electronic machine on her desk, she stared at her computer, waiting for Ben’s security clearance to appear.

“C’mon,” Ben thought, his thumbs tapping against the high counter.

“What’s the clerk’s name, honey?” the woman finally asked as she handed Ben his I.D. card.

“Rick Fagen,” Ben said, returning the card to his shirt pocket. “I guess it could be under Richard.”

After typing the name into the computer, the woman said, “I don’t have anyone under that name as a clerk for Justice Hollis.”

Surprised, Ben said, “Maybe our master list is wrong. Can you check the list of clerks for the other justices?”

As the woman reconfigured her search, Ben continued tapping.

“Sorry,” the woman said, “I have no one under that name listed as a clerk.”

“That’s impossible,” Ben said, his voice rising in panic.

“I’m telling you,” the woman said, “I checked our entire personnel database. No one named Rick Fagen ever worked at the Supreme Court.”


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