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.”