Decision (15 page)

Chapter 8

His parents and Erma Tillson were there, Janie was there, Sarah and Sue-Ann; Mary, dressed in a severe black dress with a single rose, face composed, expressionless; and in the special box reserved for the President, to the right of the bench as the overflow audience of press and public faced it, the President himself and the new Associate Justice: two days after the Senate vote, two days after his visit to the house on Fifth Street.

Looking a little tense, a little pale, not meeting his eyes but otherwise also perfectly composed, Cathy sat facing straight ahead in the regular media section to the public’s left.

It was exactly 10 a.m. when the bell rang, the red velvet curtains parted, the Marshal rapped his gavel, the President, Tay and the audience rose to their feet and the Justices in their solemn phalanx stepped through the red velvet curtain and took their places at their simple black leather rocking chairs.

The Marshal, a tall young Japanese-American who five years ago had been one of Justice Ullstein’s brightest law clerks, cried out the traditional words in a firm, commanding voice:

“Oyez, Oyez! All persons having business before the Honorable the Supreme Court of the United States are admonished to draw near and give their attention, for the Court is now sitting. God save the United States and this Honorable Court!”

Duncan Elphinstone and his colleagues took their seats, with a rustle and murmur the audience followed suit. He glanced thoughtfully out upon them for a second, then smiled as he turned to the President.

“We are greatly honored this day by the presence of the President of the United States, who I understand wishes to break precedent just a trifle. The Court”—his smile broadened—“thinks this can safely be done. Mr. President—?”

“Mr. Chief Justice,” the President said with a bow and a smile, “Your Honors. It is indeed my pleasant duty to present to you this day the Honorable Taylor Barbour. I wish to thank you, Mr. Chief Justice, for permitting me to usurp your prerogative and administer the Constitutional oath to an appointee of whom I am very proud.”

He left his box and stepped forward, Tay following, into the well of the Court directly below the Chief Justice. The Clerk handed him the worn and much-thumbed Bible that Frank Barbour had brought from the ranch in Salinas Valley, where it had occupied an honored place in the living room ever since it had crossed the plains with Tay’s great-great-grandfather in 1851. The President took it, held it in his left hand and raised his right.

“Place your left hand on the Bible, raise your right hand and repeat after me,” he instructed. “I, Taylor Barbour—”

“I, Taylor Barbour,” Tay said in a voice that trembled only slightly with the realization that it had all come true at last; and repeated phrase by phrase the oath required of all Americans taking civil or military position with the government of the United States, excepting only the President, whose oath, somewhat broader, requires him to “protect, preserve, and defend” the Constitution:

“I, Taylor Barbour, do solemnly swear that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter. So help me God.”

“Mr. Chief Justice, Your Honors,” the President said; bowed to them, handed the Bible to Tay, shook his hand, gave his arm a friendly squeeze; nodded to the Secret Servicemen seated along the main aisle, entered the protective square they formed immediately for him and walked quickly out. The Elph smiled down upon his new associate.

“It is now
my
pleasant duty,” he said, “to administer the Judicial oath. If you will place your left hand on the Bible, Justice, raise your right hand and repeat after me—”

And in a voice now completely steady, Tay complied:

“I, Taylor Barbour, do solemnly swear that I will administer justice without respect to persons, and do equal right to the poor and to the rich, and that I will faithfully and impartially discharge and perform all the duties incumbent upon me as an Associate Justice of the Supreme Court of the United States, according to the best of my abilities and understanding, agreeably to the Constitution and laws of the United States. So help me God.”

“Congratulations, Justice,” Duncan Elphinstone said with a broad and fatherly smile. “You can’t escape us now. This Court,” he added quickly, “will now stand in informal adjournment for ten minutes to permit applause, congratulations, hand shaking, and other forms of jubilation appropriate to the swearing-in of Justice Barbour.”

And he rapped his gavel sharply, put it down, stood up and led the applause which, never permitted in the Chamber save on such a rare occasion as this, now rose and filled the normally hushed and dignified high-ceilinged room.

Janie, tugging Mary by the hand, rushed up and kissed him; Mary did too, in a coolly dutiful way. He was very conscious of Cathy, caught her eye at one point, but she looked quickly away. The media, save for those regularly assigned to the Court, milled about and began to drift out. Helen Barbour laughed and cried and kissed him all at the same time. Frank Barbour shook Tay’s hands in both of his, beamed and then gave Erma Tillson, whom the Barbours had brought with them from California as their guest, an exuberant hug.

“We certainly started something, didn’t we, Erma?” he asked. She smiled, a tiny birdlike person now, almost a ghost from the past, who had lived long enough to see one of her most cherished dreams come true.

“Yes, sir, Frank,” she agreed with a wink at Tay and Helen which Frank saw, grinned at and returned, “we certainly did, didn’t we?”

“Justice!” the Chief called down. “Tay! Come on up here. You have friends here who want to congratulate you too, you know; and Court resumes in five minutes. And you’re on it now. So hike up here!”

“Yes, sir!” he said with a bow and mock salute, seeing all their smiling faces beaming down upon him. “I’ll be right there.”

He gave his mother and Erma final kisses and hugs, shook his father’s hand again, kissed Janie and Mary once more, waved to the still standing, eagerly watching audience. Out of the corner of his eye he saw Cathy picking up her coat and purse.
Don’t go!
he cried inside.
My first day!
But she obviously thought it best, because she turned away without looking at him again and started toward the huge oaken doors giving onto the Great Hall. Just before she got to them she turned back for just a second: her eyes met his in the faintest of salutes. Then she turned and was gone. Behind him at the bench, Moss looked startled for the smallest second. It was long enough for Mary to catch his expression, glance at him and hold his glance with a deliberately quizzical look until he turned almost angrily away and said something innocuously jocular to Wally Flyte.

In a moment Tay had come up the short flight of steps and joined them. The next minutes passed quickly with a kiss from Mary-Hannah, hearty handshakes from the Chief and his new Associates. A law clerk respectfully murmured his name. He turned and found her holding out a black robe draped over both arms. With a smile he took it; with a smile she helped him put it on. Duncan Elphinstone stepped to the bench, the Marshal raised his gavel and brought it down. An immediate respectful silence fell, during which audience and Justices rustled back into their seats. Tay found his where it is for the most junior, to the far left of the Chief, at the end of the line. He took it, drew a deep breath and smiled out upon the members of his family and the now silent and respectful audience. The one he wanted to see was no longer there, but the world, as represented by the Chamber, was watching Taylor Barbour.

It saw a dignified man who looked the part because he had always been destined for the part.

I
will be good,
he promised the world.
I will administer justice without respect to persons, and do equal right to the poor and to the rich.

“The Court—the full Court,” the Chief said with a note of pride in his voice, “is now in session. We have presently before us
Steiner v. Oregon.
Counsel, you may proceed whenever you are ready.”

And John Marshall’s institution, being once again complete, leaned forward attentively and proceeded on its patient, traditional way.

In the thoughts going through Tay’s mind at that moment, Cathy and the Court were inextricably mixed. Memories of the meeting at the house on Fifth Street commingled with the many impressions he had accumulated over the years of the awesome body of which he was now a member. For a time, inevitably, the Court predominated; insistently and not to be denied, the episode of two days ago came back. Sometime, he suspected with a moody foreboding, the two would have to be reconciled.

He was glad the time was not now, for he did not know at that moment how it could possibly be done.

Almost furtively he glanced along the row of attentive faces beside him: the Chief Justice, neat little figure upright and dignified, staring down impassively at counsel for Steiner; Justice Flyte, leaning forward chin on hand, following every word; Justice Wallenberg slumped back in his chair, twiddling a pencil in his fingers, deceptively casual, ready to pounce; Justice Ullstein, hands folded in front of him, leaning forward with earnest attention; Justice McIntosh, face pleasant but communicating nothing to the pleader at the bar, making a note from time to time on the yellow legal pad on the desk before her; Justice Hemmelsford, eyebrows twitching automatically now and then, half-smile on lips that might at any moment open to utter some devastating comment to confuse and confound the advocate; Justice Demsted, chin also on hand, handsome face earnest and intent; Justice Pomeroy, expression revealing nothing, nodding from time to time in a manner the lawyer took to be supportive but might find out at any moment was not.

How different they were, yet essentially, he supposed, how much the same as the five who were serving in February 1801, when President John Adams, having failed to persuade John Jay to return to the Chief Justiceship he had resigned six years before in the earliest days of the Court’s shaky and as yet undefined power, turned to his Secretary of State, John Marshall, and persuaded him to serve.

John Marshall, history showed, had not been at all reluctant, for he had been imbued from the first, apparently, with the same fierce reverence for the Constitution and desire to see it work that now infused his distant inheritors almost two hundred years later. Before he took his seat as Chief Justice on February 4, 1801, he had been a lawyer in his native Virginia, then Congressman from Virginia, then Secretary of State. Much later William Wirt, one of the most brilliant lawyers of the early Republic, summed up the Chief Justice who served thirty-four years and almost single-handedly created the Court as Tay and his country now knew it.

“Marshall’s maxim,” Wirt said, “seems always to have been, ‘Aim exclusively at
Strength.
’”
And Marshall himself, long before the great decisions that were to define and sanctify in law both the great powers of the federal government and the great powers of the Court, argued for the new Constitution in the Virginia ratifying convention of 1788 with the words, “Why then hesitate to trust the General Government? The object of our inquiry is—
is the power necessary—and is it guarded?”

He had given a resounding and unshakable
Yes
to the first question; and despite the hatred, annoyance and constant opposition of his cousin Jefferson, he had determined—and got away with it—that the answer to the second should be a
Yes
fully as resounding and unshakable.

Altogether, as most lawyers conceded and as nearly all subsequent Justices of the Supreme Court recognized gratefully, an amazing and remarkable man, who even more than Jefferson and the other Presidents he served with and outlasted in the thirty-four years from 1801 to 1835, placed the stamp of his personal ideals, beliefs and convictions upon the American government.

The great cases thundered down the years in Tay’s memory as they did in that of every lawyer who ever studied the Court:

—Marbury
v.
Madison,
1803: Marbury, a justice of the peace in the District of Columbia, had been appointed by outgoing President John Adams but denied his appointment by incoming President Thomas Jefferson. He sued Madison, Secretary of State, demanding his commission. John Marshall used the case to establish the right of the Court to declare acts of the government unconstitutional. First he threw a sop to his cousin by ruling that the withholding of Marbury’s commission was legal; then he skillfully cut the ground out from under his cousin by going on to state that the law under which Congress gave the Court jurisdiction in the case exceeded the Court’s original powers as stated in the Constitution, and therefore was itself unconstitutional—as
decided by the Supreme Court,
which, Marshall asserted, had the right to determine such constitutionality or unconstitutionality. It was a masterpiece of yes-and-no—or, rather, no-and-yes. From it the Court emerged, almost behind the President’s back, as the arbiter of the Constitution. The dislike between the cousins grew, but the Chief Justice had claimed his ground and the President, frustrated and angry, could not decide how to dislodge him. And although Andrew Jackson was to remark spitefully in a relatively minor case years later, “John Marshall has made his decision, now let him enforce it,” the Court’s prestige survived and it went right on successfully exercising the power John Marshall had blandly and designedly appropriated for it.

—United States
v.
Burr,
1807: Jefferson’s renegade former Vice President, Aaron Burr, was accused of treason. Burr demanded that a subpoena be issued against the President, requiring him to appear and produce his evidence against his former Vice President. Marshall, sitting as Circuit Justice for the Fifth Circuit in Richmond, upheld the request and issued the subpoena. Jefferson, furious, insisted that the President was not subject to such action. Marshall backed down to the extent that he ruled that the President’s attorneys might examine the evidence and withhold anything they deemed vital to national security. Jefferson backed down by instructing his attorneys to do this, though he himself still refused to appear. Marshall felt he had vindicated his position that all citizens, no matter their station, were equally subject to the law. Jefferson, the presumed democrat, felt he had vindicated his position that the President was above the law and could defy the mandates of the courts. Both cousins realized they could push their contest no further without shattering forever the delicate balances of the American system as it then existed. It was not until 1974 that the Supreme Court ruled 8‒0 that Richard Nixon must produce his Watergate tapes. One hundred sixty-seven years after
United States
v.
Burr,
John Marshall won his battle with his cousin. The law finally, in a much stronger nation and a much different climate, was declared equally applicable to all—but only then, perhaps, because of the personal nature of the President, which was far different from that of Thomas Jefferson.