Sara smiled. “What’s so funny?” he asked.
“You sound a lot like your brother.”
Fiske paused and rubbed his hand across a water ring on the table. “You spent a lot of time with Mike?”
“Yes, quite a lot.”
“Socially too?”
“We had drinks, dinner, outings.” She took a sip of her drink and smiled. “I’ve never been deposed before.”
“Depositions can actually be quite painful.”
“Really?”
“Yes, like this for instance: Something tells me Mike’s death didn’t seem to surprise you all that much. Is that true?”
Sara instantly dropped her casual manner. “No. I was horrified.”
“Horrified, yes. But surprised?”
The waitress stopped by and asked if they would like some dessert or coffee. Fiske asked for the bill.
Then they were back in the car and heading toward the District. A light rain had begun to fall. October was a quirky month, weatherwise, for the area. It could be hot, cold or mild during any given stretch. Right now it was very hot and humid outside, and Sara had the AC on high.
Fiske looked at her expectantly. She caught his gaze, took a troubled breath and started speaking slowly.
“Recently, Michael did seem nervous, distracted.”
“Was that unusual?”
“For the last six weeks we’ve been cranking out bench memos. Everybody’s short-fused, but Michael thrived under those conditions.”
“You think it was related to something at the Court?”
“Michael didn’t have much of a life outside the Court.”
“Other than you?”
She glanced at him sharply but said nothing.
“Any big controversial cases pending?” he asked.
“Every case is big and controversial.”
“But he never mentioned specifics to you?”
Sara stared ahead but again chose not to answer.
“Whatever you can tell me will help, Sara.”
She slowed the car slightly. “Your brother was funny. Do you know that he would go down to the clerks’ mail room at the crack of dawn to get an early jump on any interesting cases?”
“I’m not surprised. He never did things halfway. How are the appeals normally processed?”
“The clerks’ mail room is where the filings are opened and processed. Each filing goes to a case analyst to make sure that it complies with the requirements of the rules of the Court, and so forth. If it’s handwritten, like a lot of the in forma pauperis appeals are, they even make sure the handwriting is legible. Then the information goes into a database under the last name of the party filing the appeal. Lastly, the filing is copied and sent to all the justices’ chambers.”
“Mike once told me how many appeals the Court gets. The justices can’t possibly read all of them.”
“They don’t. The petitions are divided up among the justices’ chambers, and the clerks are assigned to do certorari pool memos on them. For example, we might get in a hundred or so appeals in a week’s time. There are nine justices, so each chamber gets roughly a dozen appeals. Of the dozen appeals sent to Justice Knight’s chambers, I might write a memo on three. That memo is circulated to all the chambers. Then the other justices’ clerks look over my memo and make a recommendation to their justice on whether the Court should grant cert or not.”
“You clerks have a lot of power.”
“In some areas, but not really with the opinions. A clerk’s draft of an opinion is mostly a recap of the facts of the case and then stringing together cites. The justices just use the clerks to get the grunt work done, the paper pulp. We have the greatest impact in the screening of the appeals.”
Fiske looked thoughtful. “So a justice may not even see the actual documents filed with the Court before deciding whether to hear the case or not? He’d just read the pool memo and the clerk’s recommendation.”
“Maybe not even the memo, perhaps just the clerk’s recommendation. The justices hold discussion conferences usually twice a week. That’s when all the petitions screened by the clerks are discussed and voted upon to see if there are at least four votes, the minimum you need, to hear the case.”
“So the first person to actually see an appeal filed with the Court would be someone in the clerks’ mail room?”