Author's Note: Well, I didn't expect any of the vignettes in my Amendments series to become stand-alones, but this one very quickly became the "Isaac and Ishmael" of my oeuvre, in terms of its reaction to real world events and its slight divergence from the timeline that I assume for all of my other "West Wing" stories. So it seemed only fitting to publish it on its own. (Apparently, I'm coping with post-election stress by using writing as a form of catharsis, and if my scribblings are as helpful for anyone else to read as they are for me to write, all the better. I promise that the rest of my Amendments stories will stay firmly within the "West Wing" world and will be fluffier in substance, for the most part.)
Also, for those of you who haven't read my longer "West Wing" SCOTUS fic Penumbra and aren't already familiar with bits of my headcanon for the contemporary Court, Jennifer Chang is a current Justice who was nominated by Matt Santos and is accordingly liberal. (She'll appear from time to time throughout the rest of the Amendments series, once chronologically relevant.) However, while Jenny is mine, Evelyn Baker Lang, Christopher Mulready, and Roberto Mendoza all remain property of the creators of "The West Wing" in spite of my unending wishes that I could claim them as my own.
Lastly, this fic has a very strong and unambiguous political point of view, even though the dialogues throughout it are drawn from conversations with friends from across the political spectrum. If you disagree with it, I respect that and would be more than interested to hear from you (especially given the difficulty I'm still having in understanding the results of the election). But I also maintain the right to delete any comments that are less than civil in tone.
Lacuna
AMENDMENT XII
Passed by Congress December 9, 1803. Ratified June 15, 1804.
Note: A portion of Article II, section 1 of the Constitution was superseded by the 12th amendment.
The Electors shall meet in their respective states and vote by ballot for President and Vice-President, one of whom, at least, shall not be an inhabitant of the same state with themselves; they shall name in their ballots the person voted for as President, and in distinct ballots the person voted for as Vice-President, and they shall make distinct lists of all persons voted for as President, and of all persons voted for as Vice-President, and of the number of votes for each, which lists they shall sign and certify, and transmit sealed to the seat of the government of the United States, directed to the President of the Senate; - the President of the Senate shall, in the presence of the Senate and House of Representatives, open all the certificates and the votes shall then be counted; - The person having the greatest number of votes for President, shall be the President, if such number be a majority of the whole number of Electors appointed; and if no person have such majority, then from the persons having the highest numbers not exceeding three on the list of those voted for as President, the House of Representatives shall choose immediately, by ballot, the President. But in choosing the President, the votes shall be taken by states, the representation from each state having one vote; a quorum for this purpose shall consist of a member or members from two-thirds of the states, and a majority of all the states shall be necessary to a choice. [And if the House of Representatives shall not choose a President whenever the right of choice shall devolve upon them, before the fourth day of March next following, then the Vice-President shall act as President, as in case of the death or other constitutional disability of the President. -]
* The person having the greatest number of votes as Vice-President, shall be the Vice-President, if such number be a majority of the whole number of Electors appointed, and if no person have a majority, then from the two highest numbers on the list, the Senate shall choose the Vice-President; a quorum for the purpose shall consist of two-thirds of the whole number of Senators, and a majority of the whole number shall be necessary to a choice. But no person constitutionally ineligible to the office of President shall be eligible to that of Vice-President of the United States.
*Superseded by section 3 of the 20th amendment.
Evie rarely welcomed dismal weather, but today, of all days, she looked out over the gray, rainy morning with a sense of grim satisfaction. In spite of how numb she felt, of how unreal the world around her seemed, she would have choked on the irony of a sunny sky in the District of Columbia. At least this way, the cosmos seemed to validate her mood.
"How?" Jenny was asking Roberto behind her. "I just don't understand how this could have happened."
"Never underestimate the ignorance and selfishness of others," replied Roberto bitterly.
Across the street, the eggshell dome of the Capitol appeared fuzzy through the drizzle, almost fading into the pale gray of the clouded sky. Cars with their windshield wipers sweeping back and forth trundled by on 1st Street NE, not visibly shaken by the cataclysm of the previous night. Beneath the overwhelming sense of disbelief, the part of Evie that could still feel emotions twinged with sudden fury. How could things stillseem so normal, so everyday, when the world had flipped on its head overnight? She took a deep breath, urging her mind to control that anger and not let it erupt into unrestrained grief.
"Evie?"
She turned away from the window and looked at Roberto.
"You OK?" he asked.
"Are any of us OK?" she answered in a hollow voice.
There was a pause, during which Jenny sniffed furiously, and then gave up and pulled a tissue from the box that Roberto nudged across the coffee table in her direction.
"Well, Ron and Chris are probably popping champagne bottles somewhere in the building," she said, her voice laced with spite. "At least someone's happy about how totally screwed we all are."
"Things might turn out better than we expect," Roberto reasoned, and when Jenny and Evie stared at him skeptically, he continued. "Really, we've gotten spoiled by the past sixteen years. The Democrats lose a lot; we just haven't felt it as acutely in recent times because they've held the Presidency for the past four terms. But there have been presidents before with agendas that have been less than friendly to racial minorities and women and various religions, and the country has somehow survived, along with all of the values for which it stands."
"Try telling that to the Cherokee," muttered Jenny.
"We are not going back to the days of genocide," Evie promised as she moved away from the window and sat down on the couch next to Roberto. "I refuse to believe that the American people are that barbarous."
"Really, Evie?" Jenny snapped. "Because I don't know what I can believe anymore. I had thought that we were better than this. I had thought that presidential candidates had to act like adults, for god's sake, or at least refrain from committing and glorifying criminal behavior. But I guess I put too much faith in decency and rationality and accountability, because it turns out that the majority of Americans just don't give a damn about any of it."
"Not the majority," Evie reminded her.
"Fucking Electoral College," Jenny spat, seizing another tissue.
"America today is exactly the same country that it was yesterday," said Roberto. "That may not sound comforting, but it's true. Yesterday, there were just as many people out there who cheered at every line of hateful rhetoric that has been spewed since the campaign season started; there were just as many people who think Muslims are universally evil; there were just as many people who think that a man who looks like me shouldn't have the right to judge a man who talks like him. One single event doesn't change the fact that these people have always been out there, and one single event also doesn't change the fact that there are still millions and millions of people who disagree with them, and who will perhaps be even more vocal than before in their dissent, in light of what's happened."
"But now all of that vitriol's been legitimized," Evie sighed. "Already, the news has been reporting a spike in hate crimes. Are we going to have to deal with four years of people thinking that they suddenly have a right to treat others like they're not human beings, simply on account of their race or religion or gender or sexuality or physical ableness?"
"I'm not saying that things aren't going to get rough, because of course they are," Roberto said. "But even under a Santos Administration, young, unarmed black men are being shot by trigger-happy police. Even under a Bartlet Administration, I could get pulled over by the cops just because of the color of my skin. Of course, it doesn't help to have this clown insinuating that all Latinos are criminals, but my point is that this country has never been perfect, and it'll take more than a changing of the guard to shift the cultures on the ground from locality to locality, for better or for worse. As we've seen, not even a competent President with the best of intentions can snap his fingers and alter reality to fit his vision."
"So, by that token, you think that not even an incompetent President with the worst of intentions can destroy what's good in this nation?" Jenny asked, unconvinced. "Maybe that's true, but if Congress continues to turn a blind eye towards everything that he's done already, who's to say that they're not going to keep on doing that once he's in office, so long as it advantages them politically? Corruption is going to hit sky-high levels, and we'll be the laughing stock of the world because of it. How can we argue that liberal democracy is a better and more stable form of government than autocratic dictatorship, when we've now shown that things like this happen when people are given the right to choose their own leaders? Plus, from a purely policy-oriented perspective, their having this level of political control across the board is going to screw over a lot of people."
"Well, at the federal level, things look pretty grim. At the state level in a lot of places, too. But there are still some jurisdictions where plenty of progress can be made at the local level, no matter what's happening nationally."
"Oh, great, so we need to place all of our hope in the certitude that New York City and San Francisco aren't going to be taken over by crazies anytime soon, too." Jenny shook her head. "Jesus. Maybe there would be some self-preserving merit to retreating back to sunny, hippie California and pretending this all isn't happening."
"Even if there were some way to demote you back down to the Ninth Circuit, I wouldn't let you go," Evie told her. "California is powerful enough that it can continue being its liberal self, no matter what happens at the federal level, and we need you here in Washington to protect people in states that aren't so lucky. If Congress is going to give the executive a blank check, and pass who knows how many laws that will hurt people who already have too little political power, that's where we come in. The courts are going to have to defend the people's rights, if elected officials aren't going to, and we all have to be ready to do just that, if it comes to it."
"Plus, you are not budging from your seat and giving the incoming administration a chance to fill it," Roberto added.
"We're going to get through this together, somehow," Evie promised. "A lot of damage can be done in four years, but Rob's right; the United States have been through the mill, and yet here we are. Now all we can do is work to ensure that the least damage possible is done before those four years are up."
"Or eight years, or eternity, if voting rights get seriously screwed up," muttered Jenny.
"Jenny..." Roberto said warningly.
"I'm just saying," Jenny ranted, "we have a man with the emotional temperament of a three-year-old and no respect for, or understanding of, the rule of law coming into office. We're handing him the most powerful military in the world, and a goddamn nuclear arsenal to boot. How exactly is anything good going to come of this?"
"Nothing good," Evie acknowledged, "but hopefully nothing irreversibly bad."
The phone rang, and Roberto picked it up.
"Hello?"
Evie and Jenny stood, recognizing that this was probably their cue to leave their colleague's office. Roberto, listening to the other end of the line, waved at them as they slipped out the door.
"You seem to have absconded with Roberto's tissue box," Evie remarked as they headed down the hallway towards their own chambers.
"I'll pay him back in kind, one day," said Jenny glumly, cradling the item in question in one arm. "You need any?"
"I think I'm covered, thanks."
"Hey, Evie?" Jenny stopped just outside the door of her chambers. "Thanks for not losing your head about all of this. I know I'm sounding totally crazy right now, and I'm being an absolute pessimist about everything, but I really do appreciate the fact that you're coping with this catastrophe so rationally."
"I'd be thrilled if I could be as cautiously optimistic as Roberto is being, but I think it's safe to say that he's had much more experience than I have at finding some sort of silver lining in the face of extreme adversity. I just wish I knew if that sort of positive thinking were actually helpful, or merely a socially-acceptable form of denial."
"I suspect that, once I stop bursting into tears every few minutes and am able to view this from a slightly more detached standpoint, this whole thing is going to play as some sort of dark surrealist comedy to me." Jenny smiled grimly. "I mean, look at the three of us this morning: A Latino, a Chinese American, and the first female Chief Justice of the United States walk into the Apocalypse together. There's gotta be some sort of punch line in there, right?"
"When you think of one, let me know."
"I will, if it's not as racist and/or misogynistic as I suspect it'll be." Jenny sighed and turned to enter her chambers, pulling several tissues out of the box as she did so. "Christ, we're screwed."
But halfway between Jenny's chambers and her own, Evie began wishing that she had taken some of the purloined tissues with her. She had remained relatively calm in front of her colleagues because she knew that it was what Jenny needed from her at that moment, but now that she was alone, the panic that had been building in her started seeping through the cracks in her composure. Just outside the door to her chambers, she stopped and leaned against the wall for support, covering her face with her hands and willing herself to stay as level-headed as possible, in case her clerks were around and counting on her to be a source of stability. When she felt that she could, she exhaled slowly and stepped inside.
Evie's clerks were indeed all waiting in her chambers, and they looked up expectantly when she walked in, their eyes filled with tears and a plea for reassurance that everything would be all right. She was struck suddenly by how young they all were, by the fact that they had all come of age during the Bartlet and Santos years, and that this was even more jarring for them than it was for her.
"Everyone doing OK?" she asked them, not missing the irony of the fact that she herself had all but told Roberto that it was a stupid question to be posing to anyone right now. "Look, I know that you're all feeling very uncertain about the future, maybe even outright scared. But there's nothing that we as individuals can do about the results of the election, and our job remains to make the best legal determinations that we can, based on the facts in front of us. We're going to continue to do the best work that we can do to deliver justice to the American people, because that's our duty to the nation, and because it's something that we can control that will make a difference." She paused. "I can't guarantee that things will be fine. No one can, and I'm reminding you of this not to make you panic, but because I know that you're all bright young adults who know full well that statistical analyses and talking-head prognostications never predict the future with absolute certainty. But even if I can't give you the answers you want, if any of you would like to talk about this or anything else, please don't hesitate to let me know. All right?"
"Yes, Your Honor," her clerks mumbled.
Evie smiled sympathetically at them and opened the door to her office.
"Oh, Justice Lang..."
Evie froze in the doorframe, frowning.
"Justice Mulready decided to wait for you in your office," one of her clerks pointed out unnecessarily.
"So I can see," Evie muttered. "Thanks. I'll see what he wants."
She closed the door behind her and turned to Chris, who was sitting on her couch and reading a copy of the Wall Street Journal with his brow furrowed.
"If you're here to gloat, then I'm going to have to ask you to leave," said Evie shortly, walking around her desk and taking a seat behind it.
"Why on earth would I have come here to gloat?" asked Chris, annoyed, as he put the newspaper down on Evie's coffee table.
"It was a clean sweep for your people, wasn't it?" Evie tried to keep her voice calm, but her hands were shaking as she began to unnecessarily stack unread briefs into piles. "Governorships, local legislatures, the House, the Senate..."
Evie tried to complete the list, but feared she would either burst into tears or throw something, or both, if she did.
"Well, you've finally taken your country back, so enjoy it," she spat bitterly. "Go ahead and return us all to the good old days of Jim Crow and Japanese American internment camps. Let the KKK and the neo-Nazis celebrate in the streets as gays are beaten and jailed for loving each other, and women die in agony from back-alley abortions, and Jews and Muslims and Latinos are harassed by white supremacists, and journalists are intimidated and assaulted for daring to insult the supreme leader. Is this the America you wanted, this virtual compilation of the most condemned highlights of our nation's history? Because it sure sounds great to me."
"Evie, will you stop this?"
"Will you stop this, Chris? That's the real question." Evie laughed mirthlessly. "Look at all of the people who held their noses and endorsed this absurdity, not because they think any of it is a good idea, but because of the opportunities that channeling this sort of mob mentality could bring them. They took a gamble, and it's paid off, and now they're embracing all of the people who brought them victory, even the most deplorable. But it'll come back to haunt them one day, either when reason is restored and they look in horror at the people they invited into their beds, or when they're eaten alive by their own creations. So, where will you be throughout all of this? Pushing back against some of this hatefulness? Aiding and abetting it? Or simply standing by silently, letting evil triumph?"
"I'll still be right here with you, where I've always been." Chris had to shout over Evie to be heard, her own volume had risen so high, but to her surprise, there was no malice in his voice. "For god's sake, Evie, what kind of a monster do you think I am?"
"You'd be surprised how many people have asked me that about you at holiday parties over the years," Evie grumbled.
"Of course this changes things," Chris continued, ignoring her, "but you can't let it change who we are and what we do. You can't let it change what the nation is and will continue to be. We're going to continue to disagree on issues, and I'll certainly be a lot less uncomfortable than you about some of the things that the incoming administration will want to do. But if it comes to fundamental issues – freedom of speech, freedom of the press, voting rights, checks on executive overreach – then you can rest assured we'll be on the same side."
Evie raised her eyebrows at him.
"Corporate money in elections? Striking down the core of the Voting Rights Act?"
"Free speech and states' rights – I know you read my opinions, so stop pretending you don't understand my reasoning."
"Your reasoning is all well and good, Chris, except for the fact that it presumes that we live in a perfect universe in which people are better than they actually are. The law simply doesn't exist in a vacuum, and it's our duty to see how its implementation impacts the real world."
"It's our duty to apply the law, nothing more. But that doesn't mean..."
"Of course it's our duty to apply the law, but you seem to forget that laws were created for the maintenance of a civilized society, and not the other way around!" Evie burst out. "You know your Rousseau and Locke, Chris, just as well as you know that the Constitution was written by mere mortals with plenty of flaws and foibles, not handed down by some divine power like the Ten Commandments! The Founders wrote the damn document so that we could create a more perfect union, and that means using it to protect people, because being a part of a society means that you have to look out for others and sacrifice a little bit of your personal freedom for the sake of the greater good. That's our job now, to make sure that Congress doesn't make a practice of bullying the most vulnerable. And don't even try to give me that 'legislating from the bench' line, because I'm sick and tired of conservatives pretending that only liberals twist the meaning of the Constitution to fit their own agendas."
Evie's voice caught, and she angrily swiveled her chair away from Chris and took a deep breath to steady herself.
"Two million people whose votes for an infinitely more qualified candidate meant nothing," she muttered bitterly. "More than two million. That's larger than the overall populations of some NATO member countries. So much for 'one person, one vote' guaranteeing equal voting power for all citizens."
"Evie..."
"What?" she snapped.
"Will you at least do me the courtesy of looking at me while I'm speaking to you?" When Evie didn't budge, Chris sighed and walked around the other side of her desk to stand next to her chair. "I'm not going to let this election ruin the country, and I'm not going to let it ruin our friendship."
Evie still was refusing to look at Chris, in part because she was trying so hard not to start crying again. She knew that she wasn't fooling him, and that he could see exactly how distraught she was, but at this moment, she didn't want his sympathy, not when it was the kind of condescending pity that a victor could afford to spend on the vanquished.
"Look," Chris said, sitting down on the edge of Evie's desk behind her, "I know you're upset. I know this was a shock – none of us were expecting this to happen, frankly. And you have a right to be angry, but you don't have a right to take your anger out on me. Even if our Constitution was written by mere mortals, I wasn't one of them, and I've been equally disappointed by the outcome of elections, but this is how our democracy works."
"I just have to ask, though," Evie interrupted, "did you ever really question that Matt Santos and Jed Bartlet respected the rule of law? Or separation of powers? Or the very office of the President? Because your candidate hasn't shown an inkling of respect for any of the above, or for the people he'll be serving, and that to me doesn't seem at all in keeping with how our democracy works."
"Would it make you feel any better to know that he wasn't my candidate?"
Evie blinked, and then finally swiveled around to stare at Chris.
"You're not about to shock me by telling me that you...?"
"No, of course I didn't," Chris scoffed. "But just because I didn't vote for your candidate doesn't mean I voted for him."
For the first time that day, a quavering smile flickered across Evie's face.
"Well, I'll be," she said. "I know you're not going to tell me, but this will keep me speculating all day long now. You don't strike me as the type to leave a blank space on a ballot, so that means either a vote for the Libertarians or a write-in like Arnie Vinick."
"Arnie Vinick's too liberal for me."
"I don't recall you feeling that way when he ran for President."
"He was the lesser of two evils, at the time," Chris argued, but with a smile. "Had I really led you to believe that I would support someone like the President-elect?"
"This cycle has broken all of the rules," Evie shrugged. "There's no precedent for any of it. Like I said, plenty of politicians whom I hold in high regard endorsed him. I was afraid to know whether you would have joined them, if your office had permitted you to make such partisan comments."
"And remind me again how long we've been friends?" Chris rolled his eyes. "Honestly, Evie, you should know by now that I only support morally-upstanding, disciplined, intelligent, qualified candidates who demonstrate a commitment to conservative values and an abiding respect for the Constitution. And this self-serving ignoramus meets exactly none of those criteria."
Nothing had changed over the past two minutes. The sky outside was still gray and weeping; emboldened neo-nationalists were still out there spray-painting swastikas onto the sides of synagogues and shouting at people of color to get out of the United States of America; and protestors were still gathering at the centers of cities across the country to voice their collective mournful fury. Everything was still so completely wrong. And yet, in spite of it all, some very small spark of hope had been kindled in Evie by Chris's words. Even if none of this was normal, and even if it would be a long time before anything felt normal again, at least she now had proof that her friend was still the man that she had always trusted he was. And that was some comfort in a world that had become so frighteningly unfamiliar.
"Things are going to get so weird, Chris," she sighed.
"I know. But at least soon we'll know how weird that will be. I always find it much more anxiety-inducing to sit around contemplating the worst, than to actually evaluate and address a situation when it comes. You just can't let the waiting period over the next few months throw you into a panic that's disproportionate to the reality of things."
"I'm more worried about the future state of the rule of law than I should probably admit."
"Keep in mind that it's not in the best interest of Congress to let the President hold too much power. Enough Senators have lean and hungry looks that I suspect they'll organically prevent an imperial Presidency from becoming entrenched and taking away their own chances of running for the office."
"Well. The world really must be ending, if Chris Mulready has something nice to say about the Senate."
"I'm saying that they'll keep the country from sliding into authoritarianism purely because most of them are ambitious egomaniacs who can't bear the thought of anyone else holding that much power. I'm not sure that actually counts as a compliment. And I still think there's a better chance that we'll be the ones holding the executive branch accountable for wrongdoing than Congress."
"I'm not comforted every time I remember that we have absolutely no means of enforcing any rulings that we may hand down, even on issues of political corruption or malfeasance."
"The day that the American public ceases completely to respect the authority of the Supreme Court is the day that American democracy as we know it ceases to exist."
"At which point Locke kicks in and social contract theory demands that we the people forge some new form of representative government?"
"Let's not get unnecessarily revolutionary," Chris recommended. "I'd prefer to get through this period of uncertainty without any redux of the Civil War."
"God, no," Evie agreed with a harsh laugh, swiveling slightly away as she contemplated that terrifying possibility.
Chris put a reassuring hand on Evie's shoulder, and after a moment, she reached up with her own hand and rested it on top of his. Years and years ago, when they were younger and brasher and newly nominated to the Supreme Court, they had stunned the Washington political establishment by insisting on accompanying each other to the toughest of one another's meetings with various Senators, and then again by attending each other's confirmation hearings before the Senate Judiciary Committee. When someone had shoved a microphone at Chris as he left the third day of Evie's hearings, and asked why he was spending so much time demonstrating support for a judge with whom he disagreed on so many fundamental levels, Chris had scornfully replied, "It's simple: She's a brilliant, qualified, thoughtful jurist, and I would be honored to serve alongside her on any bench. So the very least that I can do is show up in person to make it one hundred percent clear that I'm with her." He had been there for her then, and he had stood by her side innumerable times since. And now, no matter what happened, no matter how many cases brought them head to head once more, Evie firmly believed that Chris would still continue to be there with her, where and when it really mattered.
"Thanks, Chris," she said, glancing back over her shoulder at him. "I'll swing by later on today."
"Is this a more diplomatic way of asking me to leave your office?" Chris asked, standing and sliding his hand off of Evie's shoulder.
"Yes." Evie swung her chair around and watched Chris as he walked back around her desk and across her office. "We're in uncharted territory from here on out, even during these last few months with President Santos. We'll be dealing with situations that no Supreme Court has ever seen before, for which there's no existing law on the books, and that means that we have even more work to do. So we might as well start now."
Chris nodded and opened the door halfway.
"Madam Chief Justice," he said. And he left her with a small, trusting smile whose warmth lingered after Chris himself had departed, a smile that told Evie that, for all of her fears and worries, she would not face the uncertain future before her alone.