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141 Capítulos

The Argument Grows

The sixth paper became the project I had not planned for but could not stop.I was on the Supreme Court. I could not co-author a paper that might come before the court as the constitutional argument in a case. That was the ethical constraint. But I could read the drafts. I could ask questions in my capacity as the intellectual architect of the framework they were building on. I could ensure the argument was correctly grounded in what the previous five papers had established.Amara was in New York for three months.She worked with Josephine and Andrés and two new researchers who had joined the Columbia team. She produced a draft in January that was sixty-two pages of the most technically sophisticated constitutional argument I had encountered in the international human rights field.I read it the weekend it was completed.Then I called Oliver in London."You are in London," I said."Yes," he said."The Tate residency," I said."Three months left," he said."There is a researcher named

Make It Hold

The Simmons case was the hardest conference I had participated in since Torres.The In re Gault argument was sound and I made it. The due process clause applied to juvenile proceedings under Gault. The adequacy standard was grounded in due process. The extension was logical and constitutionally required.Two justices were persuaded immediately.Three were uncertain about the scope. Juvenile court was different in character from criminal court. The rehabilitation purpose of the juvenile system was different from the punitive purpose of the criminal system. Did the adequacy standard apply in the same way to a system with a different purpose?I said that the purpose of the system did not change the constitutional protections to which a fifteen-year-old defendant was entitled. That Kayla Simmons had been a minor in a legal proceeding where the state was a party. That the state had deployed its apparatus against her. That the due process clause did not ask about the purpose of the proceedi

A Sunday In June

The year Kayla Simmons won her review was the year Nora finished her book.She called me on a Thursday evening in March."It is done," she said."Tell me the title," I said."The Right That Reaches You," she said.I sat with that."That is exactly right," I said."I know," she said. "It was the last thing I figured out.""When can I read it?" I said."I am sending it tonight," she said.I read it over the weekend.Four hundred pages. Not academic and not journalistic. Something between the two. The full history of the access framework told in the language of the families it was built for. The story of Cruz's office and the foundation cases and the Senate years and the constitutional argument, told without jargon, told as the story of a problem that needed solving and a series of people who solved it.The Torres family was in it. Robert Calder was in it. Gerald from Louisiana was in it. Dani was in it.The families.Not the arguments. The families.The arguments were there, explained c

The Gap After Freedom

The thing nobody tells you about the Supreme Court is how quiet it gets between terms.June arrived and the opinions were handed down and the chamber emptied and the building settled into the particular hush of an institution that had said everything it was going to say for the season and was now waiting for the next season to begin.I sat in my chambers on the last day of the term and read through the year's opinions.Sixteen decisions in which I had been part of the majority. Four dissents. Three concurrences that had become, as the Chief Justice predicted, the positions other justices built from. The Simmons opinion on juvenile court adequacy. The Torres enforcement opinion from the previous term still sending ripples through implementation.By any measure it was a productive year.But something was nagging at me and I had been pushing it down for three months and now in the quiet of the empty building it was rising and I could not push it anymore.The nagging thing was a case the

The Right That Reaches You

Oliver's new series was revealed in September.He had been visiting juvenile detention facilities for three months before the Simmons decision and for two months after. He had received access through the advocacy organizations and through the juvenile justice reform groups that had been working on the issue for years.He had produced fourteen paintings.He did not show them to the family before he showed them publicly. He showed them to the gallery first, which was his practice, because the gallery needed to see them properly before anyone had a prior relationship to them.The gallery was in Brooklyn. Not the lower Manhattan gallery of the first solo show. A different space, larger, that he had been working with since the courthouse series.The opening was a Saturday in September.We went. All of us who could.The paintings were on the walls in sequence. Not chronological. The sequence that Oliver had decided told the story correctly.The first was a facility from the outside. Not thr

The Argument Was Always For Them

Nora's book was published in November.The Right That Reaches You. Four hundred and twelve pages. The full story of the access framework from the first family in Flatbush to the monitoring statute, written for anyone who wanted to understand it.The publication event was at a bookshop in Brooklyn that Nora had chosen because it was three blocks from Cruz's office.Cruz came. Dani came. The whole office came.Nora read for twenty minutes. Not the constitutional argument. The stories. The families. Robert Calder. The family in Flatbush. Dani's eleven months. Gerald's letter. Elena Torres's two years.The bookshop was quiet in the way of rooms where people are listening completely.After the reading, during the signing, a woman came through the line who I did not recognize. She was in her fifties. She had the look of someone who had dressed carefully for the occasion.When she reached Nora she said, "My son was represented by a public defender with three hundred cases. He went to prison

The Next Gap

The summer brought a development in the Carter family that had been coming for a while.Rosa was twelve.She had turned twelve in the spring and the twelve of it was visible in the specific way that twelve is visible in a child who is about to become something larger than a child. She was tall and precise and had the Killian smile and the Elena reasoning and something underneath both that was entirely herself.She had been writing in the notebook for two years.She showed it to Nora the previous year and to nobody else.In July she showed it to me.She brought it to the Georgetown apartment on a Sunday visit and after dinner she handed it to me and sat across from me in the same way Nora had handed me her four-page analysis at eight years old."What is this?" I said."I want you to read it," she said. "And tell me if it is right."I looked at her."What is it about?" I said."Access law," she said. "But the part that nobody is working on yet.""Tell me which part," I said."Children i

The Size Is The Point

The Anderson conference was in December.Nine justices in the room.The states' arguments were strong enough that the room was genuinely divided in a way I had not seen since the early adequacy cases.Three justices were persuaded by the anticommandeering argument.Two were uncertain.The Chief Justice was watching carefully.When it was my turn I presented three things.First, the distinction between a federal program that activates on state failure and a federal mandate on state officials. I made the argument precisely and I had eight pages of concurrence already drafted to back it up.Second, the Spending Clause relatedness. The federal interest in access to legal representation was not adjacent to the access program. It was the program. The condition and the interest were the same thing.Third, the human cost.I said that the legal argument was sound on all three grounds. I said the framework of the opinion I was prepared to write would address every concern raised by the states'

The Next Frontier

Spring on the court.Three significant decisions in March and April. A Fourth Amendment case in which I wrote a majority opinion that drew on the access framework's logic in an unexpected way, applying the principle that constitutional rights were hollow without mechanisms to vindicate them to a surveillance context.The Chief Justice read the opinion and said, "You used the access logic in a Fourth Amendment context.""The principle is not limited to access," I said."No," he said. "It is the most general principle in constitutional law. Rights require remedies.""Marbury," I said."Always Marbury," he said.An administrative law case in which I dissented from a ruling that I believed was too deferential to agency interpretation. The dissent was careful and precise and three of the most read legal blogs in the country described it as a template for the court's eventual reconsideration of the deference doctrine."You are writing for the future court," the Chief Justice said."The futu

The Chain

The Mensah opinion was the longest I had written.Fifty-nine pages.The extension of the adequacy standard to removal proceedings required addressing three distinct constitutional arguments.First, that removal proceedings triggered the due process clause in the same way that criminal proceedings did. The court had addressed this partially in earlier immigration cases but not specifically in the adequacy context.Second, that the adequacy standard as established in the access and adequacy framework applied wherever the due process clause applied. This was the logical extension of the In re Gault reasoning from Simmons.Third, and most importantly, that the nature of the stakes in removal proceedings, the permanent separation of a person from their established life and often from their family, made the adequacy standard's application not merely logical but constitutionally necessary.The stakes argument was the one I spent the most time on.I described what Amara Mensah stood to lose.

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