Decision (56 page)

“Therefore,” he concluded, “I’m like Dunc, begging your pardon, Clem: I’m keeping an open mind at the moment, too. And I must say
you
haven’t convinced me of anything yet, for all your bluster.”

And that, they thought, made two—on that side.

“Given the errors below and the general hectic atmosphere that has surrounded this matter from the beginning,” Justice Ullstein said gravely, “I find myself constrained to agree in large part with my Brother Wallenberg. I too find the death penalty abhorrent, and as you know have consistently voted against it here as I always did in New York. Putting aside my instinctive and very deep and genuine sympathy for the human tragedies suffered by our two junior brethren—which has not been easy for any of us to do, I am sure—I yet feel that the basic thrust of the plurality’s decision must come down on the side of petitioner if the law and constitutional guarantees are to be preserved…”

And in the same grave tone he went thoughtfully and precisely on, the beautifully behaved, strikingly handsome little boy whose extremely wealthy parents had given him every possible advantage and every possible loving encouragement to follow wherever his obviously brilliant mind would take him … who had thought at first he might be a great doctor, then had come to the conclusion, somewhere along the way in his undergraduate days at Princeton, that he would rather be a great lawyer … who had gone on to Harvard Law School, finishing first in his class … who had instinctively felt something of Clem Wallenberg’s sympathy for the underdog, though above and forever insulated—prompted by an innate goodness of heart that everyone who knew him well could recognize beneath the shy, almost cold, exterior … who obediently had entered corporate law in response to family desires and family expectations, never imposed upon him outright but just with that gentle, insistent, inexorable and inescapable family pressure that at his economic level of Jewish culture substituted for shouts and tears and wildly emotional demands that he not disappoint his parents … who yet retained in his mind and heart the feeling that somewhere, someday, he should seek the opportunity to do more for his less fortunate countrymen … who eventually found this when five of his major clients came to him one day and asked him to run for state attorney general … consulted with Hester, whom he had met and married at twenty-four and with whom he had three daughters and a son, all now in the law, to his delight; and was asked in return, “Why not?” … ran and won and, free of corporate restraints, began to speak out more and more vocally on social issues … was about to run for governor when the incumbent appointed him to the state supreme court … was appointed an Associate Justice of the United States Supreme Court, a total surprise to him but not to Senator Jacob Javits, who had been his chief and most active sponsor for years … had served with rigid integrity and quiet distinction ever since, a generally “strict constructionist”—on the liberal side—which had always galled Clem Wallenberg, who felt threatened because Ray had become something of a quiet hero to much of the media … one of the rocks of the Court, “good to have around,” as The Elph had told him once, which pleased him, since The Elph did not freely hand out compliments … troubled by the law’s injustices and inconsistencies many times but always able to find a sustaining faith in it, nonetheless…

“And so,” he concluded, “while I too am still open to persuasion, it’s fair to say that I’m leaning toward petitioner, particularly insofar as relates to conduct of the trial, denial of rights, violation of constitutional protections and the television proposal…”

And that made two on that side.

“Two to two,” Justice McIntosh remarked with a smile. “We’re up to the halfway mark and I’m going over the mark.” She adjusted her pince-nez, ran a quick hand over her close-cropped gray hair, clasped her hands in front of her and leaned forward earnestly as she used to do when addressing her law classes at Stanford. The gesture, so characteristic and instinctive, took her back immediately, even as she cleared her throat and began in her even, precise “decision voice,” as Moss used to call it in his more lighthearted days.

“Petitioner,” she said, “comes here carrying a heavy burden. Circumstantial evidence grounds the verdict of guilty; it does not, it seems to me, excuse the errors and inadvertencies, if one can accept them as such, that seem to surround his capture and trial. Nor does it, in my estimation, excuse the attempt by Judge Williams to turn this into a mind-boggling television extravaganza. As a matter of fact, this in itself puzzles me: the transcript shows him to have been such a fair-minded, level-headed man. It is as though all whom petitioner touches seem to undergo some change. He must be a strange individual, to cause such reactions. I wonder if that is sufficient to excuse them…”

Curiosity about other people’s reactions, she supposed, was what had underlain most of her life and brought her finally to the high eminence she now held. She had always been a curious child, a restless and dominant mind constantly searching for a proper channel. She was the fourth child of five born to a lawyer turned professor; and when he came presently to the Stanford Law School faculty, she felt that she had found her way at last. Not for her the placid routines of marriage, childbearing, housewifery followed by most of her contemporaries in those days: she was going to be a lawyer like Daddy. She was going to show Daddy, whom she worshiped but felt some impelling, never-articulated need to excel. And so she did, graduating with highest honors from high school in Palo Alto … going on to complete her pre-law course at Stanford
magna cum laude
 … graduating second in her class at Stanford Law … applying for and immediately receiving a position on the faculty at Duke, where she stayed for ten years, then moved to Northwestern where she became, after a five-year stay, assistant dean of the law school … returned triumphantly three years later to Stanford at the personal request of the dean of the Law School, who had big things in mind for her (though not, as he confessed in an affectionate letter from retirement when she was appointed to the Court, quite
that
big) … began to settle into the comfortable groove, as assistant dean, where she fully expected to stay for the remainder of her professional life … was promoted quite unexpectedly to dean … was, amazingly, nominated to the Supreme Court … took it in stride, though not without a secret inescapable thrill when her father, long since retired, her mother, her two sisters and two brothers and their respective husbands and wives and a joint total of sixteen nephews and nieces came to Washington to see Aunt May sworn in … assumed her duties with a diligence, vigor and decisiveness that won her the immediate admiration of her brethren and a consistently good press—“Very important,” as Clem Wallenberg assured her approvingly soon after she got there, “as a lot of it is image, you know; a lot is image” … extremely bright, hardworking, fair-minded, “liberal” in the main, though sometimes wandering, as they all did now and then, confounding critics who wanted to put them in immovable categories … married to the Court as she had been married to the law all her adult life … and never missing, except in the long hours of lonely nights that sometimes shook her more than her brethren ever dreamed or she would ever admit to anyone, the routine of marriage, children, housewifery that in her day had been the eagerly sought and joyfully accepted lot of so many of her contemporaries… Good Old May—like Good Old Wally and Good Old Ray—a workhorse, a reliable, a rock … resting sometimes on shaky emotional foundations but always managing to restore them to stability before they tipped too far and anyone could suspect…

“Petitioner,” she said, leaning back with both hands now outstretched before her, firmly grasping the edge of the table—another characteristic gesture when she was about to conclude—“undoubtedly
is
guilty, in my estimation, and certainly, based on a reading of the transcript, needs deep psychiatric treatment and confinement, probably for life. Like my Brother Ullstein and my Brother Wallenberg, I too am opposed to the death sentence as a matter of lifelong principle, and I certainly am opposed to any TV extravaganza. It seems to me the plurality might be able to find some middle ground in all this. At any rate I am leaning toward such a solution.”

“Which makes it three to two?” Justice Demsted inquired with a smile. “Or is it two to two and a half?”

“Three quarters, maybe,” she said with an answering smile. “I haven’t quite decided yet.”

“Very enlightening,” Justice Hemmelsford said with a good-natured grumpiness, twitching his eyebrows and peering along the conference table in mock severity. “Women! I must say. It reminds me of the story—”

“No time for stories, Rupe,” she said. “This is serious business.”

“Yes,” Moss said in an expressionless voice, breaking an impassive silence heretofore. “Yes, it is.”

There was a moment’s uncomfortable pause. Then Justice Hemmelsford cleared his throat and began in a straightforward manner, eschewing the twitchings and twinklings, the leers and the Old Rupe-ings.

“I find it difficult to see,” he said, “how my Sister McIntosh and my Brethren Wallenberg and Ullstein manage to skirt so neatly around the nature of petitioner’s crimes and their very horrendous, heinous nature. These were cruel and monstrous crimes and I think they deserve the condemnation of all decent people.”

“Which they have,” Justice Flyte said calmly. “Mush on, Brother.”

“Well,” Justice Hemmelsford said, not mollified much by his old friend and fellow ex-Senator, “my position, I am afraid, is not quite so noble as some. Nor do I feel that it is a position unsupported by law. I think the law is completely on the side of the death penalty, providing it is surrounded with safeguards such as those carefully delineated in South Carolina law. While I have considerable qualms about the television aspect, still I think that, too, lies within the discretion of the court below. I think that if we attempt to pass on it we would be stepping into an area that does, as
CBS et al.
argues, go to the heart of present-day American civilization.”

“If such it can be called,” Justice Demsted said dryly. His Brother Hemmelsford peered down at him at the other end of the bench and said, “Bah!”

“I am not going to indulge in whimsical sophistries with my Brother Demsted on this issue. I think this Court, to put it bluntly, would be well advised to duck the television issue altogether. Far from condemning it or entering into the controversy, as that little biddy who represents petitioner wants us to do, I think we should stay far and away the hell out of it. I am not afraid of controversy, God knows, but we have reached a situation in the country on this issue where we are in danger of running head-on into a majority of public opinion.”

“That stops Senators,” The Elph said calmly, “but when was it ever supposed to stop a Justice of the Supreme Court?”

“Oh, Dunc, stop being holier-than-thou!” Rupe said in an annoyed tone. “Particularly when you’re the one who caved in to public pressure and rushed us into this early session, hardly giving us time to read the briefs!”

“Yes,” The Elph admitted, “I was the one. But I didn’t detect any great ground swell of protest when I called you all and consulted about it before making the announcement. I did it because I was thinking of the Court. I thought it was wise to tack with the wind a little. I don’t think we’re really going to bow to our friends out there”—he too gestured in the general direction of the faithful picket line—“when it comes to the decision. Do you?”

“Certainly
I’m
not,” Justice Hemmelsford said. “I say we should react like decent human beings to this worthless thug and treat him the way decent human beings should treat him. And I’m not forgetting the law, either! I find plenty of it on my side… Now,” he said, more calmly, “I want to tell you how I see it.”

And, a bit flamboyantly, he did, with the gestures and the orotund language befitting one who, born and bred a Texan, had started orating at age ten and discovered then that he possessed the innate ability to hold and sway an audience … who had honed and improved the talent as he moved on through his grammar school and high school years to seek and win one elective class office after another, so that he wound up in his senior year in high school as president of the student body … who went on to attend the University of Texas, where he played football, made Phi Beta Kappa, was president of the debating society, and once again president of a student body in his senior year … by then had determined that the law, and very likely politics, would be his ultimate destination, and was sent off to Harvard Law School by his modestly fixed parents who had long ago determined that they would give their only child every possible advantage that they could, and scraped and saved to do so … applied himself with fierce ambition and determination, aided by “Miss Sally” Ingraham, whom he met and married at twenty-three and who possessed an ambition for him as fierce as his own … graduated second in his class and within two weeks had a job in Washington as assistant to his local Congressman, an easygoing soul of great wealth in oil and land who did not pay too much attention to his constituents and left “most of that borin’ stuff” to Rupe and within four years found himself ousted by his young protégé, who served three terms in the House and then ran successfully twice for governor … and then moved on to the United States Senate, where he soon became part of the inner circle whose members really run the Senate … proved himself to be a shrewdly brilliant and practical mind, basically conservative on most social issues, dissembled behind a deliberately cultivated “typically Texas” flamboyance … elevated to the Supreme Court by a President who felt the Court needed a little more conservative balance … a “strict constructionist” but one who on some issues showed a surprising liberalism … generally considered, even by his strongest initial critics, to be “one of the better members” of the Court … quite set in his opinions by now and basically as intolerant as Clement Wallenberg of everybody else’s … rather more typical than most of the rather odd grab bag of differing Presidents’ beliefs, impulses and political necessities that the Court, in essence, is …