Rachel Colleen Whitehead: journal

1. From the journal of Rachel Colleen Whitehead, Associate Justice

On the Court, in chambers

Martin Luther King Day

Before nomination of Suzuki for Chief Justice

 [Editorial Note: Rachel Colleen Whitehead’s nomination to the Court was purely ideological. Prior to confirmation she neither had nor wanted a judicial appointment of any kind, committing herself, immediately after law school, to Pro-Life legal action. Her finances were often precarious; when placed on the Court her net worth was around $90,000. Her pro-life practice had relied heavily on donations and stipend support from Christian groups opposed to abortion. But her successes were few, “fellow traveler” money usually scarce. Her fortune changed upon successful civil prosecution of a “regret” suit, a liability action against an abortion provider for unduly influencing the decision of a minor to obtain an abortion, leading to a charge of life incapacity of some kind thereafter. This civil action was largely Whitehead’s design, focusing not on the constitutionality of abortion but on the alleged abuse of the procedure by for profit providers. Her test case, Wiesel v Medical Services, Inc., involved a woman who, at age 16, obtained a legal abortion in New York State; she was, however, thereafter unable to establish a committed sexual relationship despite some 7 years of therapy. Ten years after her abortion, at age 26, she sued Medical Services, Inc., charging that employees at the time of her abortion had urged her to act quickly to avoid “social stigma” and “life stress.” Whitehead delved minutely into the history of Medical Services, establishing a pattern of “encouragement” and “false comfort” much as Wiesel described. At trial, the court allowed testimony of similar behavior by Medical Services after the date of Wiesel’s abortion, holding that an established pattern of corporate behavior may be used as evidence against the defendant to buttress evidence in the instance. The trial court agreed with Whitehead that the state of Wiesel’s mental health was sufficiently compelling to allow generalized evidence to reach the jury. The jury awarded Wiesel $810,000 in direct damages and $2 million in punitive damages. On appeal these were reduced to $300,000 and $800,000, respectively, with Whitehead’s liability logic intact. She became nationally known, funded handsomely by several pro-life organizations thereafter. Planned Parenthood estimated that 12% of abortion providers active at the time of the Wiesel verdict later folded, unable to meet consequent higher insurance costs, with the cost of an abortion rising some 35% for those remaining active. Planned Parenthood “guessed” that the availability of abortions declined by as much as 20% nationwide. While Whitehead’s now blooming legal group did not win all cases thereafter, her strategy of dodging the constitutionality of abortion in favor of demonstrable consequences shifted public debate further toward a pro-life stance, encouraging further State regulation via waiting periods and parental notification.


The issue of provider liability later reached the Suzuki Court, with Whitehead sitting, in Shihab v Planned Parenthood of New York, with the Court affirming liability suits but allowing the provider indemnity if a third party is hired for on sight counseling, the latter assuming liability for “regret” suits. Whitehead threatened dissent unless the third party was licenced and regulated by the State, demanding further that the State itself, if shirking this responsibility while allowing provider indemnity, be vulnerable to a constitutional tort. The Court, including Suzuki, agreed. Shihab’s suit was dismissed; she later successfully sued the State of New York employing Shihab v Planned Parenthood.


Upon nomination to the Court, Whitehead forcefully described herself as devoted to the “culture of life”; her jurisprudence would evolve by that standard alone, save where the explicit content of words demanded otherwise. Controversy in the Senate ensued. While Senators associated with the Christian Resurgence movement were delighted, some Republicans were dismayed by her refusal to affirm judicial reasoning apart from “the culture of life.” The Second President Bush refused to withdraw her nomination. She became the first Justice confirmed by a minority vote of the Senate, 49-48, with 3 (all Republican) abstentions. Republicans held a 58 majority; 47 voted for her, plus two Democrats. The three Republican abstentions remain a mystery. Dominant speculation holds that they anticipated a solid 42 no vote by all Democrats, which would have turned her out by a 47-50 margin, given the known Republican dissenters. But why anyone holding a pivotal vote would risk such a margin remains unclear. In outcome, a pure ideologue was seated on the Court; the Resurgence was triumphant. Whitehead’s journal reveals Benjamin Suzuki, appointed later as Chief Justice, took her seriously from the start (entries below). The Resurgence was later dismayed. It seems a culture of life could lead to unanticipated places.]


           My faith is not false belief. It is the sinew of my step, the surety of ground which propels me in forward balance. A ground of people never seen, of money not earned, of food unlabored. A ground also of support from my enemy: that is law. Not just the law of the State, but the unpleasant, awkward realization of moral overlap between myself and those I so bitterly oppose. Is that the Holy Spirit descending not to birth in conversion but provide victory through the hands of my opponents? I unbalance them through our common beliefs. Make them feel the echo of atrocity, a line in the dark to pull them into the light of their acts, or pause them in the hesitation which uneasiness gives.


           This is the battle of God, Holy Spirit descending to commune with lives I cannot comprehend. It has happened before, in events many would claim my faith should oppose. The Southern Civil Rights movement experienced the stayed hand many times, most dramatically Birmingham, where black protesters walked right through a police line, police numb against church practitioners marching toward, not away, from jail, the back-up firemen with their hoses ignoring the police chief’s call to hose the marchers, dropping those hoses instead–this for certain, some say dropping those hoses with tears in their eyes. These police and fire, certainly they spoke bitterly of the Movement; certainly they spit disdainfully on those trembling on the boundaries of the color bar; perhaps most plausibly some enjoyed or knew of pleasurable acts of miniature atrocity. Yet all–all–were numbed as the violated walked among and through them, dropped their painless weapons of humiliation with, some say, some say, tears, another weapon of water. The Holy Spirit alight, my enemy is mine. Yet the next encounter with hoses in Birmingham comes afar with blasting streams targeting children delicately placed in their path. The Holy Spirit never stays. It alights but briefly, leaving us to contend with the difference wrought.


           I claim this process as my own. I but sought to have conscience alight to forestall the grief of vanished love, antiseptic hands bloodless with cold. I came to this Court pariah. Fanatic pelting the wounds of those stumbling through life. No. I was of your next step, you liberals. I was new nonviolence. I was also in hope of the Holy Spirit alight. And now, here on this Martin Luther King Day, a day you took but no longer use, now I sit on this Court. And wonder what I can do, faith intact, tools gone.


2. From the journal of Rachel Colleen Whitehead, Associate Justice

On the full Suzuki Court, in chambers

            I am not placed on the Court for this. Certiorari of greed in greater right supplicate for our just blessing, hoping to scatter rivals on the floor, naturally selected for the quicker disposal. We intone faceless cases whose consensus is already lost to us, finding principle therein which might have broken the outcome if articulated back then. Our own findings may be passed over as inconvenient, or snatched for ends beyond our present labor.


           We piecemeal truth, hopping from quantum of rectitude to quantum. This we call the line of decision. We should rather call it our panicked run through a maze inadequately connected. We cannot connect the dots and hope no one notices–most of all ourselves. Hear me: truth is a whole thing, a place where travel is done, for all destinations are already present. I strive for this, not the piecemeal satisfaction of greed well served. You think I who have seen babies ground to mulch for ready entry into the sewer will tone the personhood of corporation? If life is to be my culture I cannot stop at the accountant’s book. I am not easy cause for electoral gain. You place me here and I am beyond my advocacy. You place me here and I do not know what I am.


           So our Chief Justice comes to let me know.


           A knock.


           “Come in.”


           From the other side of the door, unopened: “Come in? Really? Your clerks have gone out. Shouldn’t I be announced? I cannot be announced.”


           “Open the door, Chief Justice.”


           The door opens. Suzuki steps through.




           “Chief Justice.”


           “I am Chief Justice. Anne {Claire Young, Associate Justice] calls me Ben. Which provides greatest respect–Chief Justice or Ben? There have been but few Chief Justices. Never two at once. There are always numerous Bens. Ah. Ben provides more respect. There are many out there. Good to know. Takes the pressure off.”


           “Mr. Chief Justice?”


           “Oh. Yes. The gift. Reason for my knock. Unannounced knock.”


           “Am I to fall over, stupefied, at this point?”


           “Yes.” He squints at me, although he wears his glasses. “Isn’t working. Must try harder. Where is manual of stupefaction, also known as law reports….”


           “You said something about a gift, Chief Justice?”


           “It’s because I am a neo-rebellious Buddhist.”




           “That’s why you call me ‘Chief Justice’.”


           “The gift.”


           “If you insist on having one.”


           He hands me a jewelry case. Inside I find a small square cross, in each quadrant another small cross.


           “The cross of Malta. One cross which is five. I got it in Acre, Israel, near a crusader ruin. I paid first quoted price. The young girl’s eyes bulged. Found out later I was supposed to bargain with her. Well, I guess Justice can pay first price.”


           Light weight, silver, with angles on the crosses which make it sparkle.


           “Five crosses made one. Five crusading armies with singular goal–but we won’t talk about that. No commanding army, no commanding cross. Nice trick. All may be the supporting center cross. Better: each flutters from cross to cross among the five. All are supported, all support.”


           “This was before the awakening of my faith, Chief Justice.”


           “Your barbaric ancestor, then, without which you would not be.”


           I tilt my head. He looks very serious. I will remain silent. Let him make his point without my help. Unless that’s the help he needs.


           “That’s the symbol, but it was fake. Each army sustained itself, rampaging its need. Still, in crucial battles, the symbol worked. Now the armies are gone but the symbol remains.”


           “Just as Jesus is gone but the symbol remains, Buddhist?”


           “You say that, not me! Besides, where would you place Jesus on this five cross cross? Most confusing. Cross has been separated from Jesus, here.”


           “Why give me this, Chief Justice?”


           “It is a gift! Gifts are very confusing.”


           I say nothing.


           “Ok. Fine. This symbol built from carnage–it endures, carnage gone. Can we use it? How to support and be supported, how move from center to side to center, without rampage? That is our inheritance.”


           Cross in my palm, I tilt my hand slightly left, right. Sparkle. Sparkle. Sparkle. One cross flickers, then another.


           “Our inheritance? You are not Christian.”


           “Is this Tibet? I am American. It is my inheritance.”


           “An inheritance known to but few Christian, relatively speaking.”


           “If inheritances were widely known there would be no lever.”


           “To move the world?”


           Suzuki is silent, his face smooth, devoid of expression. Then: “Why you think so big?” A small smile appears.


           “Well. Now we have symbol. Flicker, flicker. All on center, all on side. A Christian symbol. How many faiths on that symbol?”


           “Is the center cross a place of crucifixion, Chief Justice?”


           “Now I feel awkward. I must go.” And he does.


           Sparkle, sparkle. I turn off my desk lamp. In the dusk of late afternoon the cross becomes indistinct in my hand. Lamp on. Sparkle, sparkle. In this hand lies the terrible gift of centuries. This is what I am, right now.



3. From the journal of Rachel Colleen Whitehead, Associate Justice

On the full Suzuki Court, in chambers, during Doe v Dawkins of the Superior Court of Alaska

           When we win, the floods will come. We have stood so long with the helplessly innocent, with those products of passion, manipulation, aggression, these swirling into one another to blind responsibility; stood so long with those unable to play by our sacred rule of self-preservation, stood so long we hear nothing but their silence. What will we do when their lungs scream self-preservation as the rest of us, when they become common notes in ungrasped dissonance? We will be forced to hear it all, including those we presently force to silence in reply to the helpless silence. The cacophony of victory will be upon us; so too the sight of the drowned. And a new, helpless silence. An innocent silence? Mostly not. Is this our faith? To walk away once innocence is lost? To open the world for entry into the ruthless game, then leave?


           No. There is still a place to stand. The perpetual recovery of innocence lost, a fault of birth. A new silence confronts us, a silence of innocence lost to innocence. An innocence which declaims innocence. Those we make silent against their will, or so they shall say, are our future clients. You say it is not the same? You say these are not the unborn? Consider: do the unborn want birth? When is wanting real and not imposed? The want we impose is our need.


           The unborn are made in passion, manipulation, aggression. Not only in the womb. Sin is an innocent state. Innocence will not let us be, is always with us, even as we attempt its recovery. We are innocence speaking, pleading, with itself. We are innocence recovering itself. This too is Justice: the perpetual recovery of innocence.



4. From the journal of Rachel Colleen Whitehead, Associate Justice

On the full Suzuki Court, in chambers, about one week after entry 2.

            Servants of God are innocent, praying not for kind of use but use unfettered of hopeless negotiation with the Absolute. Walk your life until use comes unbidden, the world transformed into choreograph, moves in grace performed, body sail tacked to universal breath, origin of all movement, even of the short, stale breath of self. Know, for that moment, in that moment, breath beyond those pell-melling us into action, we flotsam on turbulent sea. Innocence knowing release to greatest power, innocence knowing there is no escaping use, only the use of those among us.


           I struggled incessantly for efficacy. But it was always the sly entry of strangers that brought the breath of God. My struggles were not useless; but effect never cumulated solely in my plans. I learned not to plan in fine; and here I sit on this Court. This is why I know the suicides of 9-11 are wrong–they planned too minutely to be the hand of God.


           Walking an arcade, reply to our Chief Justice beckoned me. I purchased, all meaning now mediated through money, now transporting reply with purposeful entry into the Chief Justice’s outer chambers. A clerk looks up. “Oh no,” his face informs. What will the fanatic do this day? I feel sorry for these clerks. The Chief asks nothing of them for long periods, then makes–unusual–requests.


           “May I speak with the Chief Justice?”


           “Do you have an appointment?” he blushes at this ritual defense.


           “Do you know who our Chief Justice is?”


           “Oh, right.” Glancing at the frame I carry, picture turned away from him, he frowns, his face then contorting into shrug. “A moment, Madam Justice.”


           Soon, from inner chambers: “Justice Rachel! Come forth!”


           I enter. “Chief Justice, I’ve brought you… what is that?” On the wall, behind his desk, over his chair, a reproduction hangs. A large, overly simple picture of two thin figures crossing a log, log bridging a crevasse. The forward figure is bent nearly parallel with the log, an almost stick of arm fulling extended ahead, a blind man stretching far to sound the world. His companion is more vertical, but moving, presumably, toward the same posture, although with a walking stick in hand.


           The Chief Justice starts. “What! Has something been seen?…Ah. Master Hakuin.”




           “Late 17th Century. A hard, essential man, in practice and art. Much loved once safely gone.”


           “And this is called…”


           “‘Two blind men, crossing a long.’ Esoteric name.”


           “Two blind men?”


           “Hah! Blind leading the blind! Accurate description of jurisprudence. So it faces those entering to see me on my throne…er, sitting at my desk.”


           “How do they know there is a crevasse?”


           “You ask much of dead painter!”


           “Is not the answer in your esoterica?”


           “What esoterica? You mean legal briefs? Why would legal briefs mention Hakuin? Oh. You mean pages of headache. No. Not there. But answer is obvious. They threw a rock and heard no fall. A fall is known through its ending. This toss had no ending–for them. Precipice of endless fall.”


           “Not if they trip. They’ll end all right.”


           “Why bring in world beyond their inference! They act on what they are.”


           “How do they know the log ends in safety?”


           “They do not. They tap log, move forward, these taps a ‘yes/no’ of the world. We do this too. Great talk of law, of rights, talk flaying about, hoping to encounter something–tap! tap! Ah! That way a place to stand. Spew forth more words, hoping for a tap. So Justice moves.”


           “Many fall that way.”


           “Rachel, we are nothing more than those yet fallen.”


           “I prefer the sure step.” 


           “Their steps are as sure as can be, ground present or not.”


           “Whence comes the solid ground?”


           “I must cross log and you ask me why there is log? I may lose my balance!”


           “You may gain knowledge of the nature of logs.”


           “Ah! Good answer! Let us stand on this log atime and ask what it is.”


           “Not what, but how it came to be there.”


           “But the perpetual falling which began the crossing remains.”


           He is afraid of the surety of ground. He prefers perpetual loss to the relief of Creation. Will you, Chief Justice, condemn others to live in your fear? If you lack strength to accept absolute comfort, will you deny it to those with such strength? To know weakness is a mercy of God.


           “I have brought you a gift in reply to yours.”


           “What? Is not ‘perpetual falling beginning the crossing’ irritating enough for reply?”


           I thrust the painting into his hands, exposing it to his eyes. His eyes widen. It is the detail of hands from Michelangelo’s “Creation.” Adam’s hand darker than the Lord’s, outstretched, fingers limp, pointing downward. The Lord’s hand horizontal, finger seeking to close the gap between them.


           He looks, saying nothing, places the reproduction on the guest chair. After a moment he claps his hands together, fingers interlocked.


           “You employ the Cross of Malta!”


           And creation slips from my grasp. I am contrite, Lord; it was never mine to hold. The choreograph begins, my moves not my own.


           “Michelangelo’s ‘Creation.” But just the hands, that which has become the painting’s essence. Surety of ground, Chief Justice.”


           “Clerk! You–called ‘clerk’”


           I am startled by the shift. Through the open door to outer chambers, a clerk appears.


           “Yes, sir.”


           “Have you PhD or law degree?”


           The clerk, used to such absurdities, says, “Law degree. I am a lawyer.”


           “Then find hammer and nail. A PhD might bungle it.”


           Apparently used to such requests, he exits without protest.


           “Here God’s finger is outstretched, Adam’s passive. Why does Adam not try similarly?”


           “He awaits the spark of life.”


           “Full painting shows Adam looking. He is aware. He has placed his arm in the right direction.”


           “A convention of the artist.”


           “Maybe God wants this more than Adam.”


           What do you reply to such absurdity blind to the joy of touch?


           “Would you, Chief Justice, make of Michelangelo a follower of your faith?”


           Eyebrows raise in surprise. “Faith, not belief.”


           I flush, part of the dance not mine.


           Silence. He goes on:


           “I see perpetual creation in the social act of reaching out. To label this ‘The Creation,’ the first creation, is to soar your God to heights unreached. I see the creation which is the core of all Justice. We write to facilitate that touch.”


           And now I see my end step in the dance.


           “Can not the first creation be such an act as well?”


           “Would Adam be without the touch?”


           Cul-de-sac. Why Adam at all? It is not enough that we are made. Why are we made? But such whys are the social touch, not the touch of God.


           “Would you be without the social touch?”


           “Would God be, Rachel, without that touch?”


           The dance complete, I marvel at where I have been placed. I know I am not to answer this last gambit.


           “See: log covers the entire field of the picture. There is no evidence of support on either side.


           “The log is without end. There is no supporting ground to reach. The log is the only supporting ground. There is no why, surety of ground in its answer. Only what is made of the touch.”


           “Are you the leading blind man, Chief Justice?”


           “No. I am just a place on the log. Creation is movement on the log. My job is to let that creation come. They tap me. I make noise.”


           “Then where is your support?”


           “Clerk! You have returned! You know your role.”


           A resigned clerk stands at door, holding a hammer upright in one hand, a nail in the other.


           “We shall place creation above Hakuin. He would be irritated. Shows good plan.”


           He pauses. “This is not just the touch of Adam.”


           “No, Chief Justice, it is not.”


           “Touch of God to you. Touch of you to me. I bow.”


           As the clerk pounds the wall, I leave. Hidden from all, the Cross of Malta dangles from a chain onto my bosom, underneath my blouse.

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