The Fortunes of the Court

Bob Mullen, December 2000

What will become of the Supreme Court in the coming year? We must look to the traditions at the root of our legal system and how they led to the Court's most recent decision. One legal tradition, inculcated by the best law schools, is ``Sending out for Chinese'' when it appears an all-nighter is unavoidable. This must have happened December 11 when the sharply divided court debated Bush v. Gore. The next morning the kitchen was a mess, littered with containers, sauces, and cookies. My job was to clean up.

I started with the bag of unchosen fortune cookies in the center of the table: ``You will spend old age in comfort and material wealth,'' ``There is a beautiful house with many gardens in your future,'' and ``You will never need to worry about a steady income be thankful for this.'' Hardly news, those fortunes were intended for the Court, not me. The baggers at The Bon Won-Ton have a special bin of upbeat cookies reserved for the Court --- prophecies for the clerks; realities for the justices.

In the Court's kitchen the Justices make an effort to reach consensus about the proper division and interpretation of their fortune cookies. They scrutinize the fortunes vigorously and, although they never cite the cookies directly, inevitably the arguments and precedents established around the kitchen table sway their written opinions.

At the head of the table, at the right end, I found ``Share your happiness with others today,'' beside the discomfiting ``You will be crossing the great waters soon.'' These must have come from the cookies of Chief Justice Rehnquist. The next two were ``Happy events will take place shortly in your home,'' and ``Your love life will be happy and harmonious.'' No doubt they belonged to Justice Thomas whose wife works at the Heritage Foundation gathering resumes for Bush's transition team and who is known to be comfortable on Rehnquist's right.

The next two seats shared a single neat stack of fortunes: ``You are the center of every group's attention,'' ``You will be free of the heavy burden you have been carrying,'' and ``Now is the time to try something new.'' Justices O'Connor and Kennedy probably shared the first two. Rumors that a Gore presidency would delay O'Connor's retirement suggest the last fortune was hers alone. A sloppy pile nearby contained the basest flatteries and temptations: ``Your mentality is alert, practical, and analytical,'' ``Your ingenuity and imagination will get results,'' ``You will be awarded some great honor,'' and ``Your talents will be recognized and suitably rewarded.'' Clearly the centrists rejected these venal fortunes.

The next seat had only one cookie opened: ``You have the rare ability to recognize ability in others.'' Surely this belonged to Justice Stevens, who stated his unique confidence in the impartiality and capacity of the Florida judges. He said he saw no federal issue but --- perhaps characteristically --- he also failed to open his second cookie, ``You never hesitate to tackle the most difficult problems.''

On the other side, still at the left end, there were three cookies. The first two were opened. ``You are never selfish with your advice or your help,'' and ``Your skill and talents will be called on in unusual areas,'' certainly presaged Justice Ginsburg's generous but untypical defense of states' rights. If only she had opened her third cookie, ``Don't have bad manners,'' her dissent might have been more respectful.

Another set of three fortunes was on the table between the next two place settings: ``Every great accomplishment is at first impossible,'' ``Your objective is difficult but worth it,'' and ``You should be able to undertake and complete anything.'' These had to belong to Justices Souter and Breyer, who argued in dissent that Florida should have been allowed to attempt completing its recount by December 18. On the leftmost of the two chairs was a single crumpled fortune: ``You are the only flower of meditation in the wilderness.'' (Souter to the left of Breyer! Who knew?)

Only the fortunes of Justice Scalia remained. He is interested in a promotion that can only happen with the right person in the Oval Office. Did he yearn for the flatteries rejected by Justices O'Connor and Kennedy or did he in fact tempt them with those very fortunes? We can only guess the tone in which Scalia recited his own fortunes: ``Your modesty will shame those of lesser knowledge,'' and ``Don't wait for others to open the right doors for you.'' Antonin Scalia was no fool; Chief Justice Rehnquist knew at once his majority and his succession were both secure.