Allegiance (5 page)

“You wish you'd been here for the saboteurs' case,” he says. “That's the spirit. We served law and war together.”

I remember the news stories. A tribute to democracy, the papers said.
Proof that in the citadel of liberty, law and justice still function. “And now I'm doing certs.”

Frankfurter leans across the desk, taking hold of my elbow. “Perhaps you feel useless,” he says. “Sidelined. Many do, even among my Brethren.”

“I was supposed to fight,” I tell him. “I flunked the physical.” I feel a small sense of shame at the admission, but also some relief. Now it is out in the open.

Frankfurter nods. “Your ankles. I have heard. Well, I will not be carrying a rifle either. But we are still part of the struggle.”

“I don't know,” I say. “I have classmates in uniform.” Bill Fitch, with his curls cut short. His father pulled strings to get him into the Army Air Force, I heard, thinking he'd be safer. “I think about what they're doing, and all this seems . . .”

“So far removed? It is not, though. You read what happened. The enemy came to kill our fellows, and we meted out his fate. It is the stroke of a pen, not a sword, but the same responsibility.” Something kindles in his eyes. “You must be willing to do it, Cash. That is what it means to be a judge. You cannot write that opinion unless you would pull the trigger yourself.”

“I'm not going to be writing opinions, though. I'm just a clerk.”

Frankfurter's smile has a different aspect now, one conspirator to another. His shirt is fine white cotton, his cufflinks onyx. “Oh, clerks can be influential,” he says. “If I could be my brother Black's clerk for one year, the law would be much improved. I won't keep you from your work. But I will advise you to enjoy some music while you labor. And if you would like variety, you might try standing. I always write standing up at a lectern. It stimulates the flow of blood to the head. I learned it from Holmes; that's the way he wrote.”

He walks out. After a moment's thought I resume my seat and turn the radio back on. Before me on the desk lies a paper in which a farmer argues that he should be allowed to grow wheat free from government quotas. It is the kind of case the Court would have jumped at five years ago, when it was doing battle against the New Deal. But then Roosevelt announced his plan to pack the Court with his sympathizers. Owen Roberts changed sides, and the rest of the old guard stepped down or died. The Four Horsemen are long gone; of the nine Justices now sitting, Roosevelt has appointed seven. In their eyes, there is nowhere the arm of Congress cannot reach. Still, I think this
petition is worth hearing. It will be my first grant recommendation, and just typing the word makes me nervous.

I push the typewriter away and lean back in my chair. Despite Frankfurter's advice, I am second-guessing myself. Not just on the petition, but on the whole matter of coming here. The work is not what I thought it would be. And Washington is not Philadelphia. Neither is any other place in the world, of course, but Washington is not in a particular, distinctive way. It has customs and culture of its own. People are too busy to talk, or they speak only of politics and can't be silenced. And underneath the chatter and ostentatiously hurried walk runs another thread, one I cannot quite grasp. I see it here at the Court and outside, too. Frankfurter's strange allusions, the way a man looks at me on the street. Something is happening that I do not understand.

THE NEXT DAY
at noon I am working on certs when I hear a shuffle of steps and the familiar notes of “London Bridge.” I look up as the door opens and Black enters, felt hat on his head, battered suitcase filled with petitions of his own. He deposits the hat and suitcase without a word, gathers up his mail, and proceeds to his private room. Ten minutes later his head pokes through the door. “Seems a shame to waste the sun,” he says. “Come on, Cash, what do you say?”

“What?”

“You say ‘what'?” He walks to my desk and leans toward me. “Is that supposed to be funny?”

I sit bolt upright. “No, Justice. I just—I don't—”

Black interrupts. “Call me Judge. That's what the Constitution says.”

“Yes, Judge. I don't know what you're talking about.”

“Tennis, son.” Black sits down on the corner of the desk; I edge back. “They weren't lying about that backhand, were they?”

“I suppose it depends on what they said.”

“That's a good answer. Now you're getting funny.”

“But Judge, I have twenty certs to do today.”

“And that one's bad. Why do you swoop after you soar? A man needs exercise. You'll do more work, and you'll do it better.”

Are these the predicted results of exercise, or an unrelated command? I cannot tell, but I grab my hat and follow him out the door.

We proceed to the Court's basement garage. “I'll drive this time,” Black tells me. “You can once you know the way.” He pulls out into traffic. “People seem to feel uncomfortable with me behind the wheel. I guess they think a Justice shouldn't be driving himself. I don't mind, of course, but if it makes you feel better . . .” His voice trails off as he changes lanes rapidly. I grip the seat, thinking that his companions' discomfort has a different source.

Black drives as though only speed and not direction is essential to travel and tends when talking to lose track of his surroundings. It is a relief when he makes a rapid turn into a driveway half hidden by overgrown privet. Gravel crunches under the wheels. “Stay away from that tree,” he warns, gesturing toward a buckeye at the edge of the drive.

“The nuts fall?”

He shakes his head. “Birds. They'll get you every time. Deadly stuff. Eats through the paint in minutes.”

I nod. Bird droppings are playing a larger-than-expected role in my Supreme Court clerkship.

Black pulls his briefcase from the backseat and shuts the door loudly. He spreads his arms to encompass the house standing before us. “What do you think of the old place?”

I am unsure what to say.
Small
is my first thought, a red brick Federalist with two dormer windows emerging from the tiled roof. It would be fair-sized for a Philadelphia row house, but standing alone in Alexandria it is a good deal less impressive. By Haverford standards it is a cottage. Black smiles. “You can't see what I've done to it.” He leads me around the side, gesturing. “Used to be a slave shanty here. Knocked it down myself.” Another wave directs my attention to a sprawling garden. “And that was the house next door. I bought that, knocked it down too, and now we're in business.”

“I'm amazed you have the time, Judge,” I say.

“There's time for everything worth doing,” he answers. “Problem is there's too many things not worth doing competing for that time. You know anything about a garden?”

“I see you've got roses,” I say. “And wistaria.” The familiar purple trail creeps along the top of the wall. “Named for Caspar Wistar, properly pronounced to rhyme with malaria, not diphtheria.”

“What?”

“He was a Philadelphian. We keep track of each other.”

“You do?”

“It's what Judge Skinner always told me. He was a friend growing up.”

“Oh,” says Black, nodding. “Old Sam Skinner.” There is amusement in his voice, but no warmth. He points to a different vine. “Well, what do you have to say about these?”

My knowledge is exhausted. “Those are grapes.”

“Scuppernong,” Black pronounces with enthusiasm. “From Alabama.” He plucks a clump, large and bronze, and hands me one. “Squeeze it out into your mouth. Not the seeds.” With a practiced motion he flattens a grape against his teeth, extracting the pulp and leaving the seeds in the empty skin. Mine explodes against my lips, viscous and sweet. I pick a piece of pulp from my face, and Black laughs. “You'll get the hang of it.” He opens the garden gate. “And now it's time for the main attraction.”

When we get around the back, I can see why the house is so small. In addition to the half-acre garden, Black has a clay tennis court. “Designed it myself,” he says. “Now you can show me that backhand I've been hearing about. There's some clothes in the house. I think you're about Sterling's size.”

Black isn't particularly good, but he is serious about his game. “The Senate doctor told me no man in his forties should play singles, so I waited till I was fifty,” he tells me cheerfully. “I can still beat both my sons. And now that I've switched to an Eastern grip I think I'm safe for another five years.”

Not from me. Black and I have similar styles—we are both retrievers, cautious, letting the other man make the mistakes. But my shots are better and I am faster. I win the first set we play, 6–2. Black leans on the net post, gasping. “Let's try it again. I think I can beat you.” His wife, Josephine, has come and gone, her sky-blue eyes flashing amusement, but their five-year-old, little JoJo, is still watching from the shade of a peach tree. “Go get us some V8,” he calls, and she scampers off, blonde and precious. “My orange juice is over Hitler's rooftops,” Black says, quoting a War Information poster. “V8's better for you anyway.”

By the second set I have learned to anticipate his only dangerous shot, a tricky forehand sliced down the line, spinning so it curves out of the court.
I am serving at 4–1 when he tries it in desperation. I am there in plenty of time, sliding into position on the red clay, racquet accelerating into the stroke . . . and suddenly I am on my back, looking up at the sky. I turn my head slightly to the left. The wall I collided with is inches from my face.

“Sorry,” Black calls. He walks around the net, hand raised in apology. “Not a lot of space there. You're not used to it.”

“That's okay,” I say. I flex my fingers experimentally. Nothing's broken, but I've lost some skin from the knuckles. “I think I'll call it a day.”

“No you won't,” says Black. His voice is no longer apologetic. “You'll keep going.”

“My hand's a little sore.”

“You think you can quit and it won't matter,” Black says. “What's a tennis game? Give up and go on. But one day you'll find something where if you don't keep going, you might as well be dead. That's what I'm training you for.”

I look at the spots of blood on my knee. “I wanted to talk about some of the certs, Judge.” I rack my brain for a viable case. “There are these children who don't want to recite the Pledge of Allegiance.”

“We'll get to that,” Black says. “Right now I want to see that backhand.”

• • • • 

It is getting dark as we go to shower, and by the time I am dressed again Black is out in the garden, watering. In the twilight he names the plants for me as he goes. “Those are turnips,” he says, “and rhododendrons here. Rosa rugosa—easy to take care of.” A glossy beetle clings to a pink petal, and he strikes it to the ground and stamps on it. “Where I'm fighting the Japs.”

A flicker of annoyance passes through me. “To save the roses,” I say. It is all irrelevant: the certs, the tennis, the flowers.

Black turns to me with a look that suggests I have his full attention. “Do what you can,” he says, “with what you have, where you are.” A moment, and he's back to his task, shifting the nozzle with a practiced flick of the wrist. Arcs of water hang unsupported in the air, glistening and falling. Black coils the hose. “You see how I'm doing this,” he says. “Set it right, it'll coil itself next time. Let it go wrong once, it wants to do that forever. You'll understand when you have children.”

A grill is heating on the porch. Black ties an apron around his waist and
puts steaks down to sizzle. He tends them with a parent's care, flipping, prodding, sprinkling spices. By the time he lifts them off, I can see they are ruined. “Here, lamb,” he says, as Josephine joins us.

“Thank you,” she says, smiling with real gratitude as he offers a plate. But she raises her eyebrows at me as I take my first bite and stifles laughter at my reaction.

“A doctor fellow told me to eat steak every day,” Black says. “I've done my best to follow his advice.”

“It keeps him young,” Josephine says. I nod, cut another piece, and move it to the opposite side of the plate. She smiles. “A perfect stranger came by here once, you know,” she says. “He just rang our doorbell and asked if this was a public court. I told him no. But Hugo saw him over my shoulder and offered to play.” She tucks a strand of hair behind one ear, a girlish gesture. In New York, the women have started using dye, one of many things that are not done in Philadelphia. In Washington, the propriety is debated, but Josephine abstains. She is more than a decade younger than her husband, but her hair has gone mostly gray, almost white in places. Still, when she turns those blue eyes on you it is easy to see how Black decided no other woman would do. Her attention pours out hungrily; it makes you feel that you are the most important person in the world.

“I beat him, too,” Black adds. He has almost finished his steak. “So, Cash. Better than an afternoon of certs, isn't it?”

My feelings are mixed. “They'll still be there tomorrow, though.”

“Exactly.” He exhales with satisfaction. “Cash is just about a match for Sterling,” he says to Josephine. “And of a size. Couple times there I thought it was him on the other side of the net.” He doesn't notice her face change. “The backhand, though . . .”

At first I cannot figure out why she is looking at me that way. Then I understand. I wore the whites of her drafted son. We are of a size, we move the same way across the tennis court. She is wondering why I could not put on the uniform instead, wondering if some magic can still exchange our fates. And I have no answer, no reason it should be him and not me, only that my chance to take his place fled when the doctor smiled through his beard and shut the folder on my war.