8 – Boston
The courtroom was in what was called the New Courthouse building, which meant it was the half of Boston’s main courthouse that was built in 1937, rather than the half from 1822. Characteristically, the two buildings were joined together with their floors at different heights. Walking from the third floor of the new courthouse you entered the second floor of the old courthouse. In the seventy-five years since the two halves were mated, nobody thought, or bothered, to change the room numbers. Courtroom 320, in the “new” building, was down the hall from Courtroom 211, in the “old” building.
All this could explain why Ben Shapiro’s clients had not shown up for the hearing on the preliminary injunction he was seeking, a court order he hoped against hope would allow the passengers of the two ships to come ashore. Maybe they’re lost, he thought.
Or maybe they took off.
The suit was titled John Doe, John Roe, and John Coe vs. Lawrence Quaid, President of the United States of America. Shapiro wondered while drawing up the legal complaint what he would do if he ever had a client actually named John Doe. He’ll probably want to be called something else to preserve his anonymity, Shapiro thought.
At some point each man had to stand before a judge and admit he’d escaped from the ships. Without that admission, the case would never be decided on its merits but would simply be dismissed for lack of standing. Shapiro had prepared and filed affidavits from each client making these admissions but leaving out their names. Today was the day when each man was to stand before the judge and claim an affidavit as his own.
Normally, a case against the United States government would be brought in federal court, not state court. Shapiro realized, however, that this case did not stand a chance of winning in the federal court system, a system in which almost every judge, right up to the Supreme Court, had been appointed by increasingly conservative Republican Presidents. Cutting edge civil rights decisions these days came from state courts, interpreting state constitutions, often in a more liberal manner than their federal counterparts. Massachusetts had led the way with its state supreme court’s decision legalizing gay marriage, a decision based entirely on the Massachusetts Constitution, ignoring the U.S. Constitution. Shapiro hoped to follow that path in this case.
Shapiro brought this case in state court under the Massachusetts constitution, the Declaration of Rights of the Inhabitants of the Commonwealth of Massachusetts, a document older than the U.S. constitution. It was a creative, but risky, maneuver.
The instant Shapiro learned which judge had been assigned to the case, he realized his roll of the dice had come up with legal snake eyes, a loser.
The back wall of the courtroom was lined with television cameras. Shapiro knew that Superior Court Justice Francis X. O’Sullivan, despite his ranting about cameras invading his courtroom, loved nothing better than to strut back and forth behind his desk and glance at the cameras swiveling to remain centered on his startling white hair while he glowered down at an attorney whose back was to the cameras.
O’Sullivan, called back from retirement to temporarily fill a vacancy on the bench, enjoyed reminding young attorneys that he’d been wearing a black robe when they wore diapers.
Shapiro sighed with relief and walked toward his clients when they appeared at the end of the corridor. The three young men were dressed in nearly identical, and obviously brand new, navy blue suits as they walked toward him. He ushered them into the courtroom and sat them in the first row of wooden benches.
At precisely 10:00 o’clock the court officer rapped his hand three times on the wall and read from the same wrinkled card he’d been reading from for ten years, “Hear ye, hear ye, hear ye. All persons having business before this Honorable Court come forth and you shall be heard. God save the Commonwealth of Massachusetts.” Shapiro wondered to himself, as he did nearly every time he heard those words read, why there was not a court officer in the Commonwealth who seemed capable of memorizing that short speech.
The officer finished his oration and held the door open for all five-feet-two-inches of black robed His Honor Francis X. O’Sullivan, the morning’s Boston Herald tucked beneath his arm.
O’Sullivan did not sit. He stood behind his chair, the famous custom-made low-backed high-backed chair that, like O’Sullivan, was brought out of retirement for him so he would not look like a Lilliputian with his head reaching only halfway up a standard judicial chair. After a glance at the cameras to assure himself there were no technical problems, he pointed his right arm, palm down, fingers outspread like a Biblical prophet and glared at Shapiro, completely ignoring the assistant attorney general representing the Commonwealth.
“Mr. Sha-pie-ro, Mr. Sha-pie-ro,” O’Sullivan boomed in the deep baritone that shocked everybody who heard it for the first time, expecting a high pitched shriek from such a small mouth. He mispronounced Shapiro’s name as three separate and distinct syllables. “I take it you were so enwrapped in your legal research that you did not have time to peruse this morning’s newspaper.”
The judge unfolded the newspaper and waved it back and forth in front of his chest, careful not to obscure his face from the cameras.
“President Boots Jews” covered the front page of the tabloid.
“Mr. Shapiro, Mr. Shapiro,” O’Sullivan would soon be frothing at the mouth, Shapiro mused, knowing what was in store for him. “You want me to disobey my Commander in Chief?” He threw the newspaper onto his desk. “You may not appreciate that I am a veteran, Mr. Shapiro.”
“With all due respect Your Honor. My clients have constitutional rights that not even the President can take from them.” Shapiro said.
“Who are your clients? Mr. Doe. Mr. Roe. Mr. Coe. Moe, Larry and Curley? I’ve read their affidavits, Oh I have read them very carefully. Where are these men, these men who drop atom bombs on innocent children?”
The judge stood on his toes, scanned his head from side to side, his palm over his eyebrows for all the world like Tonto searching for his Kimosabi.
“Stand up if you are here. Stand up. Stand up.”
With a deep breath, Shapiro turned to the three men in the front row and motioned them to rise, noticing the cameras swivel toward them.
“For the record, Your Honor, my clients are before the court.”
O’Sullivan reached down and grabbed the newspaper and held it at arms length in front of his mouth, as if it would somehow ward him against contact with the men.
“Are you the plaintiffs in this case? Did you sign those affidavits? Answer me. Answer me each of you one at a time. For the record. For the record.”
Again Shapiro nodded to them.
“Yes, Your Honor,” each man said clearly, one after the other. The three men remained standing silently.
O’Sullivan took a step backward, as if struck by a sudden gale force wind.
“Mr. Court Officer,” he intoned. “Take these men into custody. I have already called the Coast Guard to escort them back where they came from. And for God’s sake be careful, be careful. Don’t let them escape again.”
When O’Sullivan turned his back to the courtroom, the court officer looked at Shapiro and shrugged his shoulders. The three men filed out of the courtroom, meekly following the court officer.
When they were gone, O’Sullivan turned again to face Shapiro. “I would no sooner prohibit the forces of our government from taking any step necessary to safeguard our Homeland than I would order the Lord to stop the flowers from blooming.
“Mr. Shapiro. You yourself should ponder long and deep what you were about to ask this court to do and what it would have meant to you had I not taken this matter from your hands. Ponder, Mr. Shapiro. This is no time for your kind of fish to swim against the tide.”
The judge pivoted so quickly that his black robe swirled around him. He walked straight to his chamber door, leaving the courtroom in silence until the reporters surrounded Shapiro, asking if he would appeal the decision that was apparently made before he’d spoken a word in defense of his clients.
Ben Shapiro struggled to maintain his composure. He’d won cases and he’d lost cases and he accepted that was how the law worked. What Shapiro could not accept, and what was increasingly causing his formerly unquestioned passion for the legal system to wither, was when prejudice conquered reason, when the law became a cudgel for beating people down rather than a scalpel for excising what was wrong.
What does the tzadik, the righteous man he yearned to be, do when his hands are tied, Shapiro had begun to ask himself.
In such circumstances, Shapiro had not found an alternative to the legal system, but he suspected that such an alternative existed.