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All Chapters of Mistaken Alliances : Chapter 141 - Chapter 150

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The Third Board

The year the Mensah decision was handed down was also the year Rosa turned thirteen.She had been writing for three years. The family court access argument was taking shape in her notebooks the way all the access arguments had taken shape before it, from the ground up, from the specific problem outward.At her birthday dinner in the Georgetown apartment she surprised everyone.After the cake and the gifts and the particular energy of a family celebrating someone they loved, she stood up.She was thirteen years old. She stood the way Nora had stood at her first Senate testimony. Completely prepared and not performing preparedness.She said, "I want to tell everyone about my argument."The table looked at her.She said, "Children in family court. The state removes a child from their home. The proceeding determines where the child lives next. The child is the center of the proceeding. The child has no lawyer representing specifically their interests in most jurisdictions."She paused."T

The Fight They Tried To Delay

The call came on a Thursday morning in September and I knew from the first word that something had gone wrong.It was Amara calling from Strasbourg.She said, "The Grand Chamber session has been postponed."I set down my coffee."How long?" I said."Indefinitely," she said. "The Hungarian government filed a jurisdictional challenge yesterday evening. They are arguing the Chamber does not have authority to hear the case because Kovács exhausted his domestic remedies incorrectly.""He exhausted them through the courts available to him," I said."Yes," she said. "But Hungary is now arguing that there was an additional administrative channel he should have used before bringing the case to Strasbourg. A channel that did not exist in practice but existed on paper.""They are inventing a procedural barrier," I said."Yes," she said. "After four years of proceedings. After the initial chamber accepted the case. After the briefing. After the hearing. They are now raising a jurisdictional chall

The Right Came First

The Beaumont briefing produced an opposition argument I had not fully anticipated.The petitioner argued that the access right extended through the reentry period because the reentry obstacles were the direct product of state action through conviction. The brief was built on the seventh paper's argument. It was sound.The government's brief in opposition was expected. The government supported the access framework as established but argued the extension to reentry was a step too far.What I had not anticipated was the amicus brief from a coalition of housing advocacy organizations.The housing advocates were not opposed to the access right. They were supportive of it. But their brief made an argument that complicated the reentry extension in a way that needed addressing.They argued that extending the access right to reentry would create an obligation that could not be practically satisfied. That there were not enough lawyers to provide reentry representation to every person coming out

The People Who Kept Watching

The morning the Beaumont decision was handed down, I called Gerald.The advocacy organization had his number and he had given permission for me to call him directly if anything significant happened in the reentry argument.He answered on the second ring."Gerald," I said."Yes," he said. His voice was careful the way it was when he was not sure what was coming."The Supreme Court just decided a case about reentry access rights," I said. "The decision establishes that people coming out of incarceration have a constitutional right to access legal help for the obstacles that are direct products of their conviction."A silence."The housing application," he said."Yes," I said. "And job applications. And license applications. And every legal process where the conviction creates an obstacle you need legal knowledge to navigate."A longer silence."Is that real?" he said."Yes," I said."It is in the Constitution?" he said."It is in a Supreme Court decision," I said. "Which is the same thi

The Gap They Found

Winter arrived and the court moved into the part of the term where the cases that had been argued began producing decisions.Three decisions in January that were significant. A Fourth Amendment case in which I was in the majority and in which the majority opinion I wrote was, the legal scholars said, the clearest statement of the exclusionary rule's constitutional purpose since Mapp v Ohio.An employment discrimination case in which I wrote a dissent from the majority that the Chief Justice told me privately was the most persuasive dissent he had read in his tenure on the court and that he expected would become the majority position within ten years."Within five," I said.He looked at me."The composition of the court," I said. "It will change.""You are speculating about future nominations," he said."I am noting a constitutional reality," I said."Five years," he said."We will see," I said.And a case that arrived from the Eleventh Circuit that I had not expected.A housing discri

Building For Tomorrow

The summer arrived and Rosa came to Washington.She was fourteen now and she had been in correspondence with Destiny in Atlanta for eight months and the family court argument had grown from a notebook idea into something with shape and structure.She came to my chambers on a Tuesday afternoon in July.She sat across from me with the notebook and three additional documents she had printed."Tell me where you are," I said.She told me.The constitutional foundation: the due process clause applied to family court proceedings under the Supreme Court's established precedents. Children in those proceedings were parties. They had interests that were legally distinct from their parents' interests and from the state's interests.The specific gap: no jurisdiction had established a constitutional right to counsel that specifically represented the child's independent interests as distinguished from the child's parents' interests or the state's protective interests.The empirical evidence: Destiny

The Work That Learned To Walk

December arrived and with it the end of the fifth term.Sixteen cases decided. Twelve majority opinions. Two concurrences. Two dissents.The dissents were the ones I thought about most.The first was in an immigration case where the majority had drawn a line in the adequacy argument that I thought was too narrow. The line excluded certain administrative immigration proceedings from the Mensah extension on grounds of jurisdictional complexity.I wrote twelve pages about why the jurisdictional complexity was not constitutionally relevant.The second was in a voting rights case where the majority had deferred to a state legislature's determination of its own remedial process in a way I believed undermined the constitutional protection.I wrote fifteen pages about why legislative self-determination had limits when constitutional rights were at stake.Both dissents were careful and precise and well-grounded.Both dissents were, I believed, correct.Both dissents would be used by lawyers an

The Bridges We Build

The housing discrimination petition that Gerald had helped build came to the court in February.The Eleventh Circuit ruling was the one that had held that using criminal history as the sole basis for housing denial was permissible. The petitioners were the group of formerly incarcerated people.The court took it.Six to three to grant.The Equal Protection argument was different from the access argument but the underlying logic was the same. The state had acted. The conviction was the product of state action. The housing denial was the product of the conviction. The perpetuation of state-created harm through private commercial discrimination was an equal protection problem when the criminal justice system produced racially disparate outcomes.The brief made the racial disparity argument with precision. The criminal justice system convicted Black defendants at rates that did not reflect underlying rates of criminal conduct, which the social science literature documented extensively. Us

The Law Beyond The Court

Summer recess and I did something deliberate with it.I went to Louisiana.Not officially. Not as a Supreme Court justice. I called the advocacy organization that had worked with Gerald and explained that I wanted to visit their office and speak with the people in their reentry program and I did not want it announced or covered.They arranged it.I went on a Tuesday in July.The office was in Baton Rouge. A storefront with modest furniture and good lighting and the specific organized energy of a place that was doing serious work with limited resources.Gerald was there.He was thirty-eight years old. He had been out for four years. He was a paralegal now, formally certified, working at the advocacy organization three days a week and at a public defender's office two days a week.He showed me around the office.He showed me the cases they were working on. The reentry reviews. The housing applications. The licensing processes. The specific stack of files that represented the Beaumont st

The Shape of Time Remaining

November arrived with a conversation I had been approaching from different angles for two years.Kade and I were at the Georgetown apartment on a Saturday, a rare day when nothing was scheduled and the city was gray and quiet outside and the kitchen was warm.He was reading. I was at the table with case notes that I had brought home and was ostensibly working through but was mostly thinking around.He looked up."You are not working," he said."I am thinking," I said."What are you thinking about?" he said.I put down the notes."Retirement," I said.He set down his book.He said nothing."I have been on the court for six years," I said. "The access framework is established. The enforcement is protected. The international dimension is developing. The next generation has the tools.""You are sixty-one," he said."Yes," I said."Justices serve into their eighties," he said."Some do," I said. "The question is whether they should.""Are you thinking about whether you should?" he said."I

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