‘The United States Claims Court is now in session, the Honourable Thomas Oliver Morrow presiding.’
It was a well-rehearsed drill, perfected over fourteen years of sitting in the same courtroom. Judge Morrow timed his walk from the door to his seat to perfection, exactly coinciding with the duration of the bailiff’s announcement. He’s a good-looking man, tall and well-built, the hair grey now, but the military firmness still etched in his rugged face. Tomorrow has one of the best courtroom demeanors I’ve ever seen, firm when he needs to be firm, but unfailingly even-handed and courteous to everyone who comes into his courtroom. He has a laid-back manner on the bench, which can sometimes mask a quick, keen legal mind. Kiah and I both knew him too well by then to fall into that trap, but attorneys who weren’t familiar with him sometimes underestimated him, to their cost.
‘Please be seated,’ he said.
Everyone did, except for Kiah, myself, and Maisie. The hubbub of conversation that had filled the courtroom before the judge’s entry had subsided almost instantly on his arrival. The reporters were on the edge of their seats, ready now for the serious business of the day, and the army of law clerks, interns and students also had their laptops and pencils poised for action.
‘Call the case of Samantha van Eyck individually and on behalf of all those similarly situated, plaintiffs, versus United States, defendant,’ Maisie announced. ‘Your Honour, the case is listed for the hearing of the defendant’s motion to dismiss based on the statute of limitations. Counsel, please state your appearances for the record.’
‘Good morning, Your Honour. Dave Petrosian and Ellen Matthews for the defendant, the United States.’
‘Good morning, Your Honour, Kiah Harmon for the plaintiffs. In court with me is the lead plaintiff, Samantha van Eyck.’
‘Welcome to you all,’ the judge said, ‘and welcome to everyone in court. I see we have quite a crowd today. I’m pleased to see so many unfamiliar faces. It’s not often that the Claims Court commands such an audience, not often we have so many people interested in what we do here. It looks like we missed out on an opportunity: we could have sold tickets if we’d thought about it yesterday.’
There was some laughter from the press seats.
‘But I’m glad that the court is finally getting a chance to show off the work it does, and I’m glad you’re all here to see us in action. The only other thing I should probably say is to all you law clerks and interns I see out there from my colleagues’ courtrooms and from the Court of Appeals for the Federal Circuit: I hope you all got your judges’ permission to leave your stations and come to my court. I’m glad you’ve come, but I don’t want to catch hell from the other judges, so if you haven’t done it already, fire off an email now and at least let your judge know where you are.’
More laughter, this time from the law clerks and interns. But I was sure Tomorrow needn’t have worried about that. I would have put money on the fact that every judge in the building had ordered his or her clerks and interns to invade Tomorrow’s court and bring back a first-hand report of the proceedings to their chambers. The judges would have been here themselves if they weren’t so busy with their own work. In fact, having seen the crowd, I was slightly surprised that the other judges hadn’t called a recess for an hour or two so that they didn’t have to miss the fun.
‘Now, Mr Petrosian, this is your motion.’
‘Yes, Your Honour. Before I begin, may I ask how much time the court will allow counsel for oral argument? Will it be the usual twenty minutes for each side?’
If there hadn’t been so much going on before court began, I would have confirmed this with Maisie before we started. In most cases in the Claims Court, there’s no reason to ask. Twenty minutes is the rule, and if the judge has read the papers and your brief – which in the Claims Court you can usually take for granted – that’s about eighteen minutes longer than you need. If you want longer, you are supposed to ask for more time in your brief, though most of the judges aren’t too strict unless they have an exceptionally busy day, and they don’t call time on you for taking more than your twenty minutes unless you are repeating yourself or rambling on pointlessly. In her brief, Kiah had asked for an hour and a half, emphasising the unusual nature of the case, but I hadn’t seen any ruling from the court. It wasn’t the time I was concerned about; it was the implications of Judge Morrow’s decision.
I was hoping that I wouldn’t need more than twenty minutes. My pitch was that the statute of limitations was six years; the plaintiffs had missed the deadline by quite a margin; and whatever the Constitution said about the validity of the debt didn’t alter the fact that the Claims Court had no jurisdiction to adjudicate on a 200-year-old claim. If the judge agreed with me, then whatever constitutional arguments Kiah had raised in her brief weren’t really relevant, and we didn’t need to get side-tracked into exploring them in detail. I didn’t need twenty minutes to say that, and Ellen and I, while admiring Kiah’s scholarship, had convinced ourselves that this was the right way to look at the case. So if Judge Morrow was happy with twenty minutes a side, I figured that he was provisionally leaning towards the government and Kiah was going to have an uphill struggle to change his mind. On the other hand, if he gave her an hour and a half, I figured that he might have been seduced by the constitutional arguments and was going to accept her invitation to hold a law school moot court on the subject of Article Six of the Constitution. The answer to my question was not the one I’d hoped to hear. In fact, it was worse than my worst-case scenario.
‘You may have noticed, Mr Petrosian, that I have no other matters listed in my courtroom today.’
‘Yes, Your Honour.’ I had noticed, but I hadn’t thought about it long enough to draw any conclusions. I was drawing them pretty fast now, but even if I hadn’t, Tomorrow was going to enlighten me.
‘That’s because I have deliberately left my list for today empty except for this case. I think it would be highly undesirable to place time limits on argument in a case such as this, in which the court may have to decide questions of importance involving our Constitution, questions that may well come before a higher court one of these days. I’ve read the briefs filed by both sides, which are well-written and helpful, but I have a lot of questions, and I’m going to need counsel’s help to answer them. So I’ve decided to devote as long as necessary to this motion. If we need to take all day, we’ll take all day. I want both of you to say whatever you want to say. Don’t worry about time. Focus on the case.’
I saw Ellen looking at me with raised eyebrows. I nodded, hoping to convey an air of confidence. I had my notes in front of me. I wasn’t going to panic. There was no need to change our strategy just because the judge had some questions he needed answers to. Our position was that this was a simple procedural question, and that’s how I would deal with it.
‘Your Honour,’ I began, ‘assuming that Jacob van Eyck made the loans in question in the period 1777–1778, and further assuming that he was never repaid, the plaintiffs are out of time to bring an action in this court to recover the debt. The period of limitation is six years. Now we can argue, as Miss Harmon does in her brief, about whether they’re out of time by 200 years or more, or as little as 130 or so years. It doesn’t matter. The period is six years, and that period is long gone, and there is no constitutional issue in question here.’
Judge Morrow was shaking his head.
‘But if Miss Harmon is right, and the Revolutionary War debt is guaranteed by the Constitution itself without any limitation of time, how is that consistent with a statute of limitations?’
‘It’s perfectly consistent, Your Honour. The fact that the debt itself continues to be valid doesn’t mean that a plaintiff can sue in this court to recover it. This court has no jurisdiction over cases where the claim accrued more than six years before suit is filed.’
‘Well, if the plaintiffs can’t sue here – which is where Congress says you’re supposed to sue the government for claims such as this – where can they sue?’
‘I’m not sure they can sue anywhere, Your Honour. Frankly, that’s not our concern. Our point is that they can’t sue in this court, which is what they have chosen to do.’
‘So they have no remedy if the government fails to repay the loan, even though the Constitution declares the debt to be valid without limitation of time? Is that what you’re telling me?’
This wasn’t how I’d wanted the argument to go. I would have preferred to stay away from the moral aspects of it. Whenever Ellen and I had played lawyer and judge in preparation for the argument, with Harry sitting there and interjecting comments from time to time, we had always agreed that this wasn’t the way we wanted to portray it. It wasn’t that we weren’t right, legally speaking, but it wasn’t the most attractive position for the government to take: the van Eycks had a perpetually valid debt, but no way to claim repayment. We had decided to offer Tomorrow the only other possibility that made sense, one which didn’t come with a statute of limitations.
‘It’s open to the family to petition the Congress for the redress of grievances,’ I replied. ‘They can take it up with a member of Congress or a senator, and ask for legislative relief on behalf, not only of the van Eyck family, but any other families who may have similar claims.’
‘According to Miss Harmon’s brief, they’ve been doing that periodically for the best part of 200 years, and they’ve gotten nowhere.’
‘We don’t know how well it was presented to Congress on those earlier occasions, Your Honour. They may have failed simply because they didn’t have an attorney such as Miss Harmon working with them in the past. If they were to try again today, with an attorney of her ability –’
I turned towards Kiah, who was giving me an ‘oh, please, spare me’ look. The judge interrupted me in mid-sentence.
‘If they were to try again today, we all know what would happen, Mr Petrosian, don’t we? They would be stalled and rebuffed. If they pressed hard enough, eventually it might find its way into some congressional committee, but there wouldn’t be much an attorney, whether it’s Miss Harmon or anyone else, could do to move it along. Even assuming it made it into committee, it would probably die there; and even if it didn’t die there, it would then have to find its way into some piece of legislation that had enough bipartisan support to pass both the House and the Senate; and then, years later, assuming the President didn’t veto it, maybe – just maybe – the family might be awarded a few dollars that wouldn’t affect the budget too much.’
He paused.
‘I’m not sure I would call that a remedy. Forgive me if I sound cynical, Mr Petrosian, but I’ve spent much of my life in public service, and I’ve been around that block a time or two myself.’
Tomorrow was playing to the gallery – something I’d never imagined was part of his repertoire – but he wasn’t far off base. Legislatures the world over know exactly how to bury troublesome petitions for the redress of grievances, and ours is no exception. And I wasn’t unsympathetic to the point he was making; I hadn’t been unsympathetic when Kiah had made it to me. But that didn’t mean we weren’t right in law.
‘Your Honour put it to me that the family has no remedy outside this court,’ I replied. ‘I’m only pointing out that there may be a remedy. But frankly, Your Honour, even if it there isn’t, that doesn’t mean that this court has jurisdiction when the statute has run by more than 200 years.’
Judge Morrow was shaking his head.
‘So, the answer to my original question is “yes”,’ he said. ‘You’re saying that they have a valid debt but they don’t have a court in which to sue for it. And because this court wasn’t even in existence when the claim accrued, they never did have a court to sue in. It’s not a great advertisement for American justice, is it, Mr Petrosian?’
The sensible answer to that, of course, was that it wasn’t for me to say. Or, I could have pointed out that it’s for Congress to make the law, and if Congress agreed with the judge, perhaps they could take a fresh look at it. Those would have been the sensible answers. Instead I said: ‘No, Your Honour, I guess it’s not.’
The moment the words had left my mouth, I knew as if by revelation that I would be hearing them again on the Six O’Clock News. But they seemed to mollify Tomorrow. He was silent, nodding, for some time.
‘Well, you’ve made the government’s position clear, Mr Petrosian. I think I’d better hear from Miss Harmon, and I’ll come back to you if I have any more questions later.’
‘Yes, Your Honour.’
I sat down. I realised for the first time that I was sweating. Ellen was grinning at me. She leaned over to whisper in my ear.
‘A government lawyer caused a sensation today by admitting in court that the government’s failure to provide a remedy –’
‘Yes, thank you, Walter Cronkite,’ I whispered back.
‘But you were right,’ she said.