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Supreme beings

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WASHINGTON -- The line of visitors to the court of last resort assembles on a marble slab. It is a gorgeous morning, too warm for overcoats. The statues on the tympanum high above us strip down to off-the-shoulder togas.

It's the first week of the fall term of the Supreme Court of the United States, the all-star nine that takes the field with four righties, four lefties, and a switch-hitter named Anthony Kennedy who decides the fate of nearly every pivotal case. This winter, these six men and three women -- these six Roman Catholics and three Jews; these seven whites, one black and one Latina -- will weigh the constitutionality of Barack Obama's health-care reform law, and, in particular, its requirement that every American be required to purchase insurance.

Sometime next spring, the judges will issue a (probably) non-unanimous yet incontestable ruling that may well bring down the insurance mandate, the entire so-called Affordable Care Act, and Obama's wobbly presidency.

Meanwhile, they earn their salaries by sifting through less portentous files, such as those pesky sentences of death that keep cropping up on appeal.

Two or three times a week, casual tourists are admitted to view the presentation of oral arguments in either of two categories. Hard-core law lovers who can endure a full hour of unexpurgated legalese may perch for 60 minutes. The rest of us are allowed to file through the wooden doors and thick red curtains for a 180-second glimpse of the august tribunal. I don't know a pro se from a sua sponte, so I figure three minutes should be enough.

As we wait for our brief turn in the courtroom, we survey the allegorical architecture. To our left, says our guidebook, is Contemplation of Justice, to our right is Guardian of Law, high above us is Liberty Enthroned guarded by Order and Authority and, right behind me is a 10-year-old boy from Texas whose pinky is in a splint because he accidentally sliced it with his hunting knife while stalking a wild boar.

A nod from a guard and two security screenings later, we are inside the Supreme Court itself, just a few feet from the famous justices on their high-backed rockers behind their mahogany bench. The permanent pews are stuffed with suits. We are plopped onto rickety wooden chairs that are positioned beneath, beside and frustratingly, right behind a forest of buff-and-golden Montarrenti marble columns that were a gift to the American republic in 1933 from Benito Mussolini. From where I'm sitting, I can't even see the rookie at the far end, Justice Elena Kagan.

Quickly, we learn the case being argued is a matter of a man's life or his extermination. It involves a (white) Alabaman named Cory Maples, who, more than a decade ago, dispatched a pair of his own companions, "execution style" with a .22-calibre rifle. According to the official transcript of the case:

Maples signed a confession, stating that he: (1) shot both victims around midnight; (2) had drunk six or seven beers by about 8 p.m., but "didn't feel very drunk"; and (3) did not know why he decided to kill the two men.

Even though Maples was under the influence and apparently not acting from malice aforethought, the laws of the Heart of Dixie were clear: if you kill more than one person in Alabama, sober or not, you die.

The serio-comic opera that followed formed the basis for today's jawboning. As I understand it, Maples decided to appeal his sentence on the grounds of "ineffective assistance of counsel," but the requisite correspondence from the State of Alabama to his pro bono New York attorneys was returned unopened with the marking, "No Longer With Firm." The clerk in 'Bama took no further action -- such as, um, calling New York to see if anyone else might be interested in saving Cory Maples's life -- and the appeal died on the vine.

Waiting for the wheels of justice to grind, Maples filled his days by composing anguished verses that can be read on a website sponsored by a group called the Canadian Coalition Against The Death Penalty.

Eventually, a team of surrogate solicitors came to the confessed killer's defence, demanding Alabama hear Maples's appeal, an argument powerful enough to draw the attention of the Supremes. The prisoner is not claiming he didn't pull the trigger, only that he didn't get a fair shake at a second trial because his lawyers took it on the lam. As we settle in, this exchange is going on:

Justice Kagan: How do we distinguish between abandonment and simply a botched, a very botched, transfer of responsibility within a law firm?

(Our three minutes turns to five, then 10, then 20. (No one must be waiting for our seats. The justices are inquisitive, demanding, as sharp as daggers. It's the best show in town, especially when the most reliably radical of the right-handers comes in to pitch.)

Justice Scalia: I often wonder... does anything happen to the counsel who have been inadequate in a capital case?

Lawyer: Your Honour, I suppose it would depend on exactly what the allegations are.

Justice Scalia: Have you ever heard of anything happening to them? Other than their getting another capital case?

"That Scalia's so funny!" whispers the man beside me.

"This is supposed to be serious," I reply. "It's a death-penalty case!"

"Yeah, but he's so funny!" says the giggling Supreme Court fan.

Allen Abel is a Brooklyn-born Canadian journalist based in Washington, D.C.

Republished from the Winnipeg Free Press print edition October 15, 2011 J11

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