With just two Mondays of decision left this month, somewhere deep in the bowels of the Supreme Court, the nine justices are sitting at a table staring at a whiteboard. The whiteboard is blank except for the bullet points “DOMA,” “VRA,” “Affirmative Action (this is BIG!)” and the word “Constitution???” in big uneven letters from when Justice Scalia was taking notes earlier. Around them are empty Chinese food boxes, eight empty mugs of coffee and the refuse of several days in a room without sleep.
“Our deadline is coming up,” Justice Roberts says. He stands next to the white board and picks up a pen.
“I work better on a deadline,” Justice Kennedy says for a third time. “It’ll be fine.”
“Will it, though?” Justice Ginsburg asks. “You always say that, and then sometimes it isn’t.”
Justice Thomas says nothing.
“Idea,” Justice Scalia says. “What does the Constitution say? What did the founders want? WWJD?”
Justice Sotomayor mutters something that sounds like “not this again.”
“WWJD?” Justice Kagan asks.
“The J is for Jefferson,” Justice Scalia says. “It’s clearer if you read where I have the full phrase tattooed on my left thigh. I can show –”
“Please, not now,” Chief Justice Roberts pleads. “Okay, so what do we have? People seemed to like our gene ruling. No patenting your genes! Maybe we could do something inspired by that.”
“These were so easy just a few years ago,” Justice 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 just tell America, look, let’s agree to disagree on this one?”
Justice Breyer emits a hollow laugh.
“The deadline is going to inspire us,” Justice Kennedy says.
“I keep telling you, go back to the founders. What would they have said about these things?”
“Shut up, Justice Scalia,” Justice Breyer says.
“John Marshall would never have said that,” Justice Scalia mutters under his breath.
“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 pretty good, but the majority really ruled on that one,'” Justice Alito sighs heavily and spins a pencil in his fingers. “But every time I sit down to actually write anything — poof. It vanishes.”
“Which one is this?” Justice Roberts says.
“Wait, we still have all four of those left?” Justice Alito asks, looking panicked. “I thought we’d already done at least two of them. I thought that was why we were allowed to participate in Softball Week.”
“I won’t hear any snide remarks about the softball,” Chief Justice Roberts cuts in.
“You just say that because you got to spend all day calling balls and strikes,” Justice Ginsburg says. Chief Justice Roberts glowers at her.
“Those were all strikes,” Justice Scalia says. “Also, the Founding Fathers never played softball.”
“Would you shut up about the founders?” Justice Sotomayor asks. “I doubt some of the founders would have let Justice Kagan or me own property apart from our husbands.”
“Well,” Justice Scalia says, “neither of you have husbands.”
“Oh, my God,” Justice Breyer says, under his breath.
Justice Kennedy starts scribbling frantically. Justice Kagan passes him more paper. He scribbles for several minutes. The rest of the room falls silent and watches him.
“What is it?” Justice Sotomayor says. “Do you think you’ve got it?”
Justice Kennedy holds up a very detailed picture of Justice Roberts high-fiving a squirrel. “It just came to me,” he says. “Is this helpful?”
“No,” Justice Ginsburg says.
Justice Scalia shakes his head. “The founders would have drawn a marmoset.”
“Oh my God, Antonin,” Justice Breyer says, “the founders didn’t have flush toilets, and you use those all the time.”
“Do I?” Justice Scalia asks, glowering. “Maybe I just go stand inside them from time to time to be polite. Maybe I conceal an authentic 18th-century chamber pot beneath my robes at all times. Maybe I’m secretly wearing a tiny tri-cornered hat somewhere on my person AS WE SIT HERE. MAYBE –”
There is a knock on the door. Chief Justice Roberts frantically scribbles a series of random phrases: “Precedent!” “Concur/dissent,” “Softball was a good idea!” “Jurisprudence, and LOTS of it!” on the board to make it appear that something is being accomplished.
“Somebody ordered pizza?” says a timid voice.
Justice Thomas silently raises his hand.
“Finally, someone has done something productive,” Justice Ginsburg says.
“Wow,” the pizza guy says, unloading several deep dish pizzas divided 5 to 4 into violently different sets of toppings. “So this is the Supreme Court? Are you Justice Roberts? I’m a big fan of your work. I loved Citizens United. And Obamacare? Man! Really, just, subversive, just, totally wild. Can’t wait to see what you guys come up with next. I read all your decisions cover to cover.” He hands the bill to Justice Thomas and glances up at the whiteboard. “Looks like you’re making some good progress.”
“Oh,” Justice Roberts says, smiling a little too wide. “Oh yeah. Tons of progress.”
“We’re basically done with the decisions,” Justice Kennedy says. “We just like to polish them up before we send them out.”
“Yeah,” everyone says, unanimously. They smile in silence as the pizza guy slips back out the shut door.
“Whew,” Justice Alito says. “That was close.”