Decision (20 page)

“Once, in the first days I came here, I started to use the garage entrance to the building. I still do, to large degree, as do we all, because it is the most direct and most private access for us. But every once in a while I still do what I used to do quite deliberately two or three times a week then, and that is, enter from the First Street side as we did tonight, so that I can come up the steps to the main entrance. And there before me, chiseled in the marble, I see our historic charge: Equal Justice Under Law.

“Under
law—that is the gist of it. The law that men have fought for, died for, given everything for, over so many long centuries;
the orderly process,
which in its way is almost—not quite, but very close—almost more important, even, than the substance it embodies.

“To do things peaceably and without violence. To consider all views fairly and equably. To reach agreement sensibly and patiently. To give all sides an equal hearing, and accord to each the right to state his point of view. To impose the will of one upon another only after the most scrupulously fair and honest balancing of opposing opinions. Above all,
to deal with one another in peace and without violence.

“These, it seems to me, should be the highest aims, as they are the noblest indications, of truly civilized men. They are increasingly, terrifyingly, rare in this world we live in now. It is they that we nine in this house, and all our brethren and sisters of the law wherever they be found, are charged with preserving. We cannot enforce them, for that rests in other hands; but we can state them and we can define them and we can perfect them, so that all may hear a clear call and all may have a common standard to adhere to.

“I do not pretend”—and here his eyes became troubled, his kindly face concerned—“that in these days this is an easy task; or that all men pay attention; or even that all of us so charged throughout the land are equal to the task, or able—or even desirous—of responding with such high standards. But we must try; we must try. Above all we,
we of this Court,
must try.

“We cannot prevent the errors of others, but in our own house we have inherited from great men the power to correct them. And this we must do—imperfectly, sometimes, but always, I would hope, as honestly and diligently as we can.

“So again, Justice Barbour: we are glad to have you here. We hope you will find us congenial companions in the long, never-ending march toward the rule of law. It is not here yet—indeed it is retrogressing everywhere in these troubled times—but there is no better alternative. We must keep striving. Both the goal we hope for, and the penalty for humankind if we do not achieve it, are very great.”

He picked up his glass of wine, raised it high.

“To Taylor Barbour, of the Supreme Court of the United States, Associate Justice,” he said solemnly. “We wish you well. May the law always be your principle, as you are now pledged to be its servant. And may all go well with you on this Court, and everywhere.”

“Hear,
hear!”
Wally Flyte cried, as they all rose, took up their glasses, drank deep; even Mary, though Tay could sense her rather amused and patronizing attitude. He did not care; he was deeply moved and not at all sure, as they resumed their seats, how he would reply. He took a deep breath and straightened his shoulders. None of them would ever forget how he had looked in this supreme moment just before his world began to shatter and collapse: tall, dignified, honest, sincere; grave, handsome, self-possessed; both judicious and judicial, as became his new position.

Softly and deliberately he began to speak to these few, these precious few, his brethren and his sister who lived and worked beneath the banner that was theirs to uphold, EQUAL JUSTICE UNDER LAW.

“Mr. Chief Justice,” he said, “my sister and my brethren—my friends. I would be a poor human being and a poor servant of the law if I were not profoundly moved by the remarks the Chief Justice has seen fit to address to me. They are the words of a wise and generous man, one who leads this Court with kindness, decency and compassion; one whose grasp of the law far exceeds my own and to whom I expect to look often for guidance in the days ahead. May I propose a counter-toast:

“To Duncan Elphinstone, a great Chief Justice, a great friend, and above all, a great human being.”

And once again they were on their feet, glasses raised, while The Elph blushed and smiled and finally, with a hurried, abashed and touching gesture, dashed a hand across eyes that had filled, spontaneously and quite innocently of artifice, with tears.

“My friends,” Tay resumed when they were seated again and watching him once more with a generous but intent surveillance, “my concept of this Court began a long time ago—and with it, I think, though I was not conscious of it at the time, my concept of myself both as a lawyer and as a person.”

(And how is that concept doing now?
a small inner voice inquired.
Now that you have gone to Fifth Street and rutted like an alley cat?
But this was so unfair to Cathy that he silenced it with savage sternness, hesitating only the slightest of seconds, which Moss perhaps would have noticed. But Moss at this moment was far away, and dreadfully occupied.)

“As you know, my emphasis all these years has been on what some might call the ‘liberal’ side of things”—Rupert Hemmelsford stirred in his chair and Tay caught his eye and winked, which amused them and brought a reluctant grin from Rupe—“but which, I like to think, is simple compassion, decency and common sense.

“I have never been one to feel, as some who claim the liberal label do, that everyone who disagrees is a sinister reactionary whose character, career and achievements must be destroyed as ruthlessly as possible if he dares to question the accepted liberal faith. Nor do I feel, as some of them do, that any form of censorship and suppression of opposing viewpoints is justified. Nor do I feel that derogation, belittlement, besmirchment may, and should be, substituted for fair argument. I think, and have tried to practice, that it is fair to state one’s own point of view as strongly as one can when one has reached what one believes to be valid conclusions, but that one should also give an equal hearing to those who disagree. One should not censor or suppress them and I do not believe I ever have. It is my belief that convictions, if honestly held, may be honestly and strongly stated, but arguments leading up to them should be fair and open to all comers.

“To me, moderation and fairness are major signs of a true liberal.”

“Hear, hear!” Wally Flyte said again; and approving applause agreed.

“The whole thrust of my social beliefs is that government has the right and the obligation to exercise its powers for the betterment of the individual and the improvement of the whole society.

“But”—his tone turned somber—“it is, as President Grover Cleveland said, a condition which confronts us, not a theory. And the condition, as we are all aware, is very grave.

“I do not have to review, here of all places, terror in the streets-violence of all kinds general and political—citizens living in fear, going about their business in fear—worrying about themselves and their children—empty, senseless, pointless death occurring on a moment’s whim—contempt for law, contempt for kindness, contempt for life—the whole fabric cracking at the hands of criminals, pathologues, punks. We are in a sorry state at this moment, a culmination of family breakdown, parental irresponsibility, economic uncertainty, inadequate police, overcrowded courts, excessive coddling of criminals by many greedy and overliberal lawyers and by many courts including, let us face it, this one—the whole paraphernalia of a society inexorably breaking down under an excess of its own basic principle of freedom for all—except, in recent years, the poor unfortunate victim who happens to be in the way.

“The American reaction to this—let us say the human reaction, for never was there a nation whose form of government gave it more chance to express every aspect of human nature, good and bad—the American human reaction, naturally, is to go too far the other way.

“Action and reaction, failure and result: the inevitable twins. Posing for this Court, and probably very soon, a decision or decisions we may desperately wish we were not required to make.

“So, my sister and brethren”—he paused and saw they were all enrapt save Mary, whose carefully controlled but faintly disapproving look he ignored—“how shall we meet the challenge when it comes?

“For myself, I am going to try hard—try my damnedest—to hold to the principles of fairness and justice in which I believe. I know we all are, and I am not assuming any special virtue or superiority about it or implying that anybody will do less. I am just trying to say what I think. I am going to try to be true to the Constitution and its protections for all citizens, accuser and accused, victim and criminal, individual and society.

“Maybe that can’t be done, in a climate becoming as tense and frightened as the one we live in. Perhaps fairness and moderation are going to lose the battle, at least temporarily—I hope to God temporarily, if it happens. Perhaps—the Constitution being what we say it is, as some of our less guarded predecessors on this Court have been known to state—it will be impossible to maintain all of its protections for all citizens, fairly and squarely across the board. But I am going to try, because that is the way I am: try with a fairness and dispassion as determined, as unwavering and as free from hampering emotion as I have in me.

“I like to think, perhaps falsely, that that’s a lot…

“I am afraid I have spoken too long and too egotistically, but I wanted to state to you—and maybe also,” he added with a sudden disarming smile, “to myself, that I will not be found wanting or failing when the great tests come.”

He started to sit down, but they were all on their feet applauding (even Mary, politely but evidently not quite daring to refrain), and then they were crowding around him, the men to shake his hand and slap him on the back, the women to give him hugs and kisses. Somewhat to his surprise, even May McIntosh participated in this, throwing her arms around him in what he knew must be an uncharacteristically impulsive gesture and murmuring in his ear, “You’re
wonderful!”

“Thank you, Mary-Hannah,” he said, with a pleased chuckle. “Now I can say I have been kissed by a Justice of the Supreme Court.”

She laughed.

“A few years ago it could never have happened. But now, if you live up to all you say you will, it might even happen again sometime.”

“I’m going to do my best,” he told her solemnly. She squeezed his arm.

“We know you are,” she said, equally serious, “and we know it’s going to be great.”

Summoned by the Chief Justice’s antique hand-bell bearing the authentic inscription
John Marshall—
given the Court a year ago by an admirer down in Virginia who had recently come across it among some old family relics—the special staff from the kitchen entered and began serving the meal; and for the next few minutes they all chatted amicably, gradually relaxing from the solemn mood induced by Tay’s and the Chief Justice’s remarks. Both had gone to the fundamentals of the Court and the hard realities of the times. It took a little while to move from under their spell back to the easy exchanges of ordinary dinner-table conversation.

He knew he had made a great hit. He could sense it all around the table in the warmly approving comments, the cordial glances, the new respect that he saw in all eyes but Mary’s; and her reaction, he realized suddenly, did not really matter anymore. He felt himself suddenly free—completely and genuinely free for the first time since their marriage. He found himself wishing—was at first ashamed of himself, then defiant, then glad of the thought—that Cathy could have been there to hear him. He knew now that whatever doubts he had harbored about seeing her again were banished. He would see her again. He would tell her about this. And they would be happy for him, together.

He felt a sudden great impatience for this to happen, and was lost in contemplation of it when he became conscious of a phone ringing somewhere in the background. Conversation hesitated a second, then resumed. One of the waiters went to get it, a moment later came to Tay and leaned down to murmur quietly,

“Justice, Justice Pomeroy is on the phone and wants to speak to you. At least,” he added in a puzzled tone, “I
think
it’s Justice Pomeroy. He says he is, anyway.”

For a moment after he picked up the receiver and said hello, Tay was not sure himself, so husky and ravaged was the voice in his ear. But it was Moss, all right; and although Tay immediately said, “Hi, where are you, Columbia?” in an attempt to keep the world on an even keel, he knew with an awful instinctive certainty that for some reason it was not, and might never be again.

“What is it?” he asked sharply, more loudly than he intended. He was conscious of another sudden halt in the conversation, this one a full stop: his own tone had been too obviously alarmed not to bring silence. He turned toward their anxious faces, receiver to his ear, as if seeking reassurance; so that they knew as soon as he that something was terribly, dreadfully wrong.

“What is it?” he demanded again. “Moss, what is it?”

He realized with a knowledge that set his heart racing and almost, it seemed, out of control, that Moss was crying.

“Moss,” he said more softly, his voice perfectly audible in the now entirely silent room. “Moss, old buddy, what is it?”

“Our—baby—girls,” Moss managed to say; broke down; and started over. “Our—baby—girls—”

“What’s wrong with our baby girls?” he demanded, and Mary screamed, rushed to his side and grabbed his arm. He flung it off with a glare he made no attempt to conceal.

“Moss,” he said, voice trembling and almost out of control. “Moss, you must calm down and tell me.
What about our baby girls?”

“There’s been,” Moss said, “there’s been an—an explosion.”

“What?”
he cried in a dreadful voice and was conscious that somewhere almost beyond hearing Mary was screaming again and that they had all uttered sounds of fright and apprehension.