Decision (55 page)

Chapter 7

There ensued for them all one of the most intensive periods of searching precedents, reviewing law, reading briefs and transcripts that any of them had ever known. The work filled their days and extended late into their nights. The Chief and Birdie canceled out on the White House dinner for the Prince and Princess of Wales. Clem and Maidie Wallenberg abandoned plans to host a small party at the Jockey Club. May McIntosh and her fellow Watergaters, Hughie and Kay Demsted, even abandoned plans to share potluck one night in May’s apartment. The Hemmelsfords and the Ullsteins, who had tickets together for a new play at Kennedy Center, turned them back. Tay and Moss, both still temporary bachelors, had planned to dine together at “one of those great little seafood restaurants” on the Potomac, but gave it up in favor, as Moss said, of “hitting the books just the way we used to.” Wally Flyte, who had planned to attend the latest party of the newest hostess, called regretfully and begged off.

They were secluded all day in their chambers and on both Monday and Tuesday nights they all remained until well toward midnight. Few saw one another, though in customary Court fashion phone calls and memos flew back and forth between chambers in attempts to influence votes and change opinions. The public was allowed to resume visiting the building, in small numbers tightly controlled because of the Chiefs concern for possible trouble from Justice NOW! But on the private corridors of the Court the hush of intense mental concentration fell.

Outside “in the real world,” as Justice Flyte put it, the vast juggernaut of public opinion ground on. The pros and cons of both sides were debated extensively in the media, in public places and private homes everywhere. The major newspapers professed to be horrified by the position of
CBS et al.
but moral indignation seemed to be inspired basically by a fear of being outscooped by the competition. Self-important churchmen and academicians issued denunciatory statements, earnest movie stars agreed. Demonstrations for and against Earle Holgren disrupted campuses from Stanford to Harvard. Justice NOW! bombarded the Court with letters, telegrams and telephone calls until the staff finally gave up trying to cope and simply bundled up the messages and put the calls on hold. The big mob outside was gone but a picket line on regular two-hour shifts kept vigil entirely around the building and entirely around the clock.

The matter was being decided in nine hearts and minds in the inviolable privacy of their awesome, lonely power. Everyone, it seemed, had an idea of how they should decide, and everyone made his or her opinion vociferously known.

Only silence came from the great white building.

Nothing would be known until its inhabitants were ready.

No power on earth, despite Justice NOW!’s bluster, could really influence them, hurry them or control them in any way.

During these hours before conference, which seemed endless to them all, Tay’s time passed even less easily, perhaps, than it did for the others. Moss obviously knew what he was going to do. Two or three others were leaning already in one direction or the other. The rest could probably distance themselves from it with some success regardless of their sympathy for him and Moss and achieve a relative objectivity. But it would be a long time before Tay could think of his daughter’s destroyer with anything other than revulsion and hatred.

This was a fact of life. Somehow he must fight his way through it and attempt to reach the law on the other side. It was probably best that the Chief had set a deadline. Otherwise he could go forever and never really come to grips with it. Now he must.

Twice he called Cathy on his private line, each time seeking reassurance he felt only she could give. Each time he received it, not so much in the words as in the all-embracing, unquestioning, non-judgmental acceptance and comfort. He did not ask her advice and she did not offer it. She showed an innate delicacy and sense of fitness—and, he thought, respect for others’ feelings—that only made him love her more.

He did love her now, fully and without reservation. He could hardly wait until it became possible to bring about the break with Mary and announce publicly his intention to marry Cathy. There was a certain pace that had to be followed for the sake of public opinion, the Court, Mary, Cathy, himself. But it was inevitable: a year, he thought. With good luck, perhaps less.

He did not call Mary but she called him, five times in two days. The theme was the same. He must vote to kill the monster. If the law stood in the way he must brush it aside. He could never look her in the face, never again consider himself worthy to be Janie’s father, if he did not.

He asked, and this time was told, her condition. Being a healthy child, she was recovering fast in a basic physical sense. Otherwise, no change. There were dreadful moments when he wished the Lord would stop it all and let her go. He got over these but they left their scars. Try as he might he could not keep them from haunting his decision as he slowly and painfully began to inch himself toward it over those two endless days.

Eventually—a very long time, it seemed to him—they ended. He found himself again approaching the Conference Room, greeting his sister and his brethren, as in a daze taking his place, as the junior, at the foot of the table nearest the door. At his side his new law clerks had rolled up a book caddy containing the law books he wished to refer to, the notes and papers he wished to use in presenting his opinion to this jury of the only peers a Justice of the Supreme Court has. Along the table others were similarly equipped. He knew that in a sense his own symbols of preparation were only shadow play, for it was in the shadows somewhere, still unrevealed to him, that he knew he would ultimately find the words he would be called upon to speak when he voted on this case.

The Chief began it, as traditionally he always did with every case they considered. One by one in descending seniority they followed him. After the junior had spoken they would reverse the order and begin the voting from the junior up, although after the expression of views there usually was not much doubt where everyone stood.

Perhaps by then, the junior thought, seeming to draw up and away to some dream-place high above where he could look down, curiously, upon himself, he would know better what to do.

“You are familiar,” Duncan Elphinstone said, “with the basic outlines of the case against petitioner and of the verdict and sentences rendered in the courts below. Let me review them briefly before we open discussion.…”

Hear the stately words roll out, he thought to himself even as he almost automatically continued them until he had slowly, patiently and thoughtfully encapsulated all of the opposing arguments. How noble is The Elph and how mightily doth he pontificate! And how little doth he really know, when all is said and done, about what lies behind the law, the endless pain and clash and struggle of human beings back to the mist-lost centuries, as they have striven, with only feeble success at best, to bring their weaknesses—strengths—passions—prejudices—desires—ambition—hopes—dreams—amazing good, appalling evil—within the confines of the law.…

He could see himself in mind’s eye, twenty years old, just graduated from the University of Kentucky, arriving at Duke University Law School wide-eyed and bushy-tailed, ready to save the world … meeting Birdie almost at once, falling in love, very soon getting married … graduating third in his class, entering general practice with an old established firm in Louisville … moving along with growing success for a decade, fathering three … becoming a senior partner at what they told him was a remarkably early age, although in his impatience, which amused him now, he had expected it to happen virtually the moment he stepped in the door … becoming city attorney, county attorney, district attorney … serving in the state legislature for two terms … abandoning that to accept appointment, through the efforts of the late Senator Alben W. Barkley, as an assistant attorney general of the United States … resigning that to return to Kentucky as a member of the Kentucky supreme court … returning to Washington, again at the Senator’s insistence, as Solicitor General … being appointed Associate Justice of the United States Supreme Court … subsequently being elevated to Chief Justice … still trying as best he could to make some sense of the human story … believing in the law, defending it, upholding it …
trying to determine what it is and what it should rightly be…

“In general,” he concluded, “I find myself inclined to agree with respondent on the facts of the case. Petitioner has not yet convinced me, though I am keeping an open mind for the moment. I grant you there are gaps.”

That made one. “Open mind” or no, they were sure they knew where he stood.

“Gaps!” Clement Wallenberg snorted, out of order—Wally Flyte as senior Associate should have come next but Clem was too full of it to keep still. “I’ll say there are
gaps!
This case stinks to high heaven from beginning to end! I think you’ve given your usual excellent summation, Dunc, but you’re also giving us your usual disingenuous approach to it. ‘Open mind’! What’s to be open about? This individual was denied his rights—he was tried in an atmosphere so hectic that any other verdict was probably impossible—he was made a symbol and a scapegoat—he was given the death penalty which I will
never
support under
any
circumstances. Then some little two-bit judge who probably wanted to get his name in the papers agrees to the suggestion of somebody we
know
wants to get his name in the papers and orders this God-awful public-execution-on-television circus. My God, they probably cooked up the whole thing between them as a way to give this so-called Justice NOW! a boost! And you say you’re
in doubt?”
He glared up and down the table, daring anyone to argue with him. “I say that’s so much crap! The whole thing is a farce and an insult to the law!”

So he went on for perhaps ten more minutes, hashing and rehashing, while they patiently heard him out, elaborating and re-elaborating, while through his mind, too, went memories of a logger’s son in the Michigan north woods who dreamed of being a lawyer someday … who went to a little one-room school for eight years, a tiny rural high school for two more … completed his studies himself at home because his father died of a heart attack and he had to drop everything to support his mother and two younger brothers … finally was able to go to the University of Michigan and from there to Northwestern University Law School … met Maidie, married, had a son and a daughter, both now tragically gone, the son in an auto accident, the daughter of breast cancer … became fired with the New Deal vision, plunged into social work in Detroit’s ghettos for a time, became a defense lawyer for many activist groups in many genuinely humanitarian causes … ran for state attorney general, made it, held the job for eight contentious years battling “big business” and anyone else who happened to arouse his evangelistic ire … was appointed by the then President to be solicitor of the Department of Labor … was appointed to the U.S. Circuit Court of Appeals for the Sixth Judicial Circuit … was appointed Associate Justice of the Supreme Court and confirmed by a vote of 53‒43, which, as he took pleasure in recording in his biography in the Congressional Directory, was “one of the closest confirmation battles in the history of the Supreme Court” … and fought, and continued to fight, for things as he saw them, which, as Hughie Demsted once wryly remarked, “makes it easy for him, because he only sees them one way” … never had qualms or hesitations or uncertainties … and never doubted, or ever would doubt, that his views on all subjects were the only ones possible to rational men…

“You know where I stand,” he rasped out in conclusion. “This was a crappy case, and it’s a crappy verdict. I never have and I never will support the death penalty and I certainly won’t support it tied up in a little blue ribbon of prime time television!”

And that made one, on the other side.

“I, too,” Justice Flyte said, “if I may now be permitted to speak,” he added dryly—“have been struck, like my Brother Wallenberg, with the denial of petitioner’s rights at time of arrest and with the general atmosphere of universal pressure which surrounded the case in South Carolina and, of course, has surrounded it here. But I wonder, really, if denial of rights is really all that important when the denial was undone and rights conferred within an hour—I believe we have heard it was about that—of time of arrest. As long as rights were granted within a reasonable time of arrest, I wonder if initial denial was really all that important to petitioner. I wonder if he was really hurt by it.”

“You would!” Clem said. “If there’s ever a weaselly way out, Wally, you’ll find it.”

“That’s my Senate training,” Justice Flyte said cheerfully, being used to this type of attack from his Brother Wallenberg. “Rave on, Clem. But I think I have a good point. Furthermore, while the pressure was great, it seems to me that it was not an insupportable burden. It’s made
us
speed up things a bit, and it made
them
speed them up a bit down there, and I’m not so sure that’s been a bad thing for either of us. As for the television bit, I find that abhorrent too, and I think we’re going to have to handle it very carefully…”

And he went on in his owlishly cherubic, half-kidding, half-serious way as always, the little boy who grew up in southern Illinois, scion of an extremely well-to-do, for those days, railroad family, quite the cutest, brightest, roly-polyest little boy his teachers had ever seen … who got straight A’s in everything all the way through grammar school, high school and college (Dartmouth), and then went on to graduate first in his class at law school (Yale) and move immediately into one of the three biggest law firms in Chicago … who then went on in quick succession to state senate, U.S. House of Representatives, United States Senate, was thrice unsuccessful candidate for President whose needed support for another was finally won by the promise of an Associate Justiceship on the Supreme Court … childless survivor of the late Marie, whom he had wed quite late, at thirty-five, loved dearly and with great devotion for twenty years, lost to cancer and grieved quietly but intensely to this day with a depth of feeling very few were perceptive enough to realize he possessed … bon vivant, inveterate party-goer, amiable, easygoing, extremely popular survivor in Washington’s ever-tossing social sea … frequent brooder—although, again, very few ever realized it—about the law, who, like The Elph (who did realize it) often reflected humbly on the enormous power the nine shared, and frequently felt that he really was not worthy to help exercise it … but did, with a lively flair and a jaunty spirit because, as he once confided to Dunc, “Somebody has to do this peculiar job, and we’re it, so onward and upward!” … never complained, rarely argued, always accepted without demur the opinions assigned to him to write, receiving thereby the media sobriquet “the workhorse of the Court”—to which he responded amicably, “Thanks, but I’d rather be in Philadelphia” … Good Old Wally, the eternal reliable…