Decision (57 page)

“So it seems to me,” he said in conclusion, “that counsel for the state is essentially correct in what I consider some of his most telling points: that the infringement of petitioner’s constitutional rights at the time of his arrest was inadvertent and occurred in the heat of battle, so to speak; that denial was a natural human reflection of the abhorrence felt toward the crimes committed—an abhorrence that should not be too glibly overlooked here, it seems to me; and that denial was speedily rectified within an hour or so when tempers had a chance to cool a little. As I said, I think we had best stay out of the television issue. There is no compulsion upon us to get involved in that. Prudence would indicate silence, in my estimation.”

The tally at this point appeared to stand three to three.

“I am afraid,” Justice Demsted said, leaning back thoughtfully, “that I cannot agree with my Brother Hemmelsford, or with others who have indicated a desire to evade the clear-cut challenge to human decency, to the right of privacy, to the very fabric of Western civilization inherent in the television issue. Such evasion, it seems to me, would be a craven abdication of our implicit duty to uphold certain norms and decencies of society. I think we have a duty to stand against it. It is a simple matter of human decency. To me it is one of the fundamentals of this case.”

And as he had done all his life, he went earnestly ahead; not as witty and coruscating as some, perhaps, not as brilliant as others, but sound, solid, good-hearted, compassionate and above all, as Mary-Hannah had once murmured to Clem during one of Hughie’s opinions from the bench,
good …
good as a child, when as the oldest of four in Northeast Washington he had helped his widowed mother every morning take care of the younger ones before she went off to her job as secretary to one of the top officials of the Department of Justice … good as a boy when he began to bring home better and better grades from school and apply himself, where many of his contemporaries did not, to improving his knowledge, improving his grammar, improving his appearance, improving
himself …
good as a youth when, with his mother remarried to a bright young lawyer from the Solicitor General’s office and the family in better financial shape, he was able to concentrate on his studies and conclude high school with high academic honors and a growing interest in the law prompted by his stepfather, who was perceptive enough to recognize Hughie’s potential and generous enough to push it in every way he could … good as a student at Howard University, where he finished his pre-law course with top honors … good as a student at Howard Law School, where his work was outstanding and where he graduated fourth in his class … good in practice with one of the capital’s leading black law firms … good as a husband and father after he met equally bright Katherine Bastian, a fellow lawyer, married her, and broke away to establish their own small firm dealing principally in cases arising under civil rights laws and statutes … good as a father when Kay had a son, a daughter and a second son in quick succession and decided to be a housewife, though always at his side with invaluable advice and support as he became more actively involved in the civil rights and social areas, more and more deeply involved in politics in the District of Columbia … deciding to run for public office, becoming successively city councilman, mayor of Washington and finally, for two terms, the District’s nonvoting delegate in the House of Representatives … being appointed assistant secretary of the Department of Housing and Urban Development, elevated two years later to Secretary when his predecessor resigned to seek a Senatorship … nominated and confirmed six years ago by a vote of 83‒16 an Associate Justice of the Supreme Court … voted one year to be “most valuable member of the Court” by the American Bar Association, which he knew was an example of self-conscious reverse discrimination, but also knowing that he genuinely
was
one of the best … in love with the Court and still, in his heart, in awe of its enormous breathtaking power and his own share in it, and humbly and deeply grateful for the opportunity … aware, like all of them, of the law’s difficulties and inadequacies in the face of a doom-threatened, chaotic age … but determined, as they all were, to try to make some sense of it and help to hold some kind of line against all the forces that threatened to send the world spinning out of control, off the edge, into the final nothing…

“I would like to be able to agree with my Brother Hemmelsford,” he concluded, “and with my Brother Flyte and my Brother Elphinstone, but I cannot. Not only on constitutional grounds but on the television issue, I am afraid I must part company. The state has not convinced me. Petitioner may be worthless as a human being, and indeed in this privacy I am prepared to concede that he is. But the law is the law, and as I read it, his arguments have not so far been successfully refuted.”

And that, according to their individual calculations, as they came finally to Moss, was four to three. They were all sure it would soon be four to four. What it would be after that, when the most junior spoke his piece at last, none of his colleagues at that moment would have ventured to say.

Nor was he yet prepared to say himself, he realized with something close to panic, as Moss cleared his throat and spoke very briefly in a calm and level voice that did not invite, and clearly would not accept, interruption:

“An obviously psychotic petitioner is before us. He has committed heinous crimes. Society would obviously be better off without him. Which is the greater good, the ‘rights’ of an individual who cares nothing for law or human life and has by his own deliberate act forfeited all claim to charity, or the good of the society which has already suffered deeply from his twisted evil, and could suffer much more if swift and final punishment is not visited upon him?

“This is, quite simply, a
bad man—born
bad, apparently—victim of some twisted turn in his own nature for which his parents are not responsible, nor society, nor anyone but the Lord in His mysterious wisdom. But that does not mean that the rest of us should have to suffer as”—his voice hesitated, almost broke, resumed and went steadily on—“as my wife, my daughter, myself, Tay and Holgren’s hapless woman and child have suffered.

“We cannot be our brother’s keeper on every possible occasion, though that has been fashionable philosophy in recent years. There is a limit.

“This petitioner, in my estimation, has gone far beyond it. It is time, I think, to forget the precious niceties of the law, the extreme straining after gnats that has plagued our jurisprudence in these recent decades, the general emphasis on further punishing the victim by letting the criminal either go free altogether or escape with chastisement that is not only inadequate but is, in a grim, ghastly sort of way, outright laughable.

“I stated my view basically when I rejected the appeal for stay. I intend to expand upon it further in a separate opinion when decision is rendered. I think it is clear enough where I stand.”

He sat back and for several moments no one spoke. Sarah Ann Pomeroy supported him and in her presence there was no possible counter argument anyone could offer her father. Fond as they were of him, and sympathetically as their emotions were bound up with his, no one tried.

The division now apparently stood four to four.

“And what say you, our Brother Barbour?” the Chief inquired softly, and the room became very still as they all turned at last to await the evidently now decisive view of their newest member.

For what seemed to him a very long time he did not look up or acknowledge their gaze or in any way respond to the Chiefs gentle question, which was also, in some degree, command. He remained motionless, face somber, staring down the length of the table, which by now was covered with a sprawl of books and papers, half-empty cups of coffee, half-drained glasses of water and yellow legal notepads scrawled with notes. He was not yet ready. Something still held him back. Slowly he looked along their worried, sympathetic faces until his eyes met those of Duncan Elphinstone, facing him at the other end of the table.

“Would it be entirely out of order and too offensive to the Court,” he asked in a voice that showed considerable strain, for he did not know how they would take it, “if I were to request that I be allowed to pass at this time and state my views and my vote at the conclusion of the tally?”

Again there was silence. Finally the Chief smiled.

“No. For lawyers here we have rules but for Justices we have only customs: we have no binding rules. Constitutionally there can be none, since we are each of us a part of a sovereign branch of the government and therefore sovereign in our own right. If our Brother Barbour needs further time, he has it.”

There were murmurs of assent and with a matter-of-fact air softened by the archaic language he liked to affect on such occasions, he turned to Moss as the next most junior and inquired,

“How say you to the petition, Brother Pomeroy?”

“I say no,” Moss responded quietly, “reserving the right to express my views on certain aspects of the case in a separate opinion.”

“And you, Brother Demsted?”

“I say yes,” Hughie said, “with similar reservation.”

“Brother Hemmelsford?”

“I say no, with similar reservation.”

“Sister McIntosh?”

“I say yes,” she said, “with similar reservation.”

“My goodness,” The Elph remarked with a smile, “we’re going to have opinions to end opinions, on this one. Brother Ullstein?”

“I say yes, with similar reservation,” Ray said quietly.

“Brother Wallenberg?”

“I say yes,” Clem said bluntly, “and I don’t have any reservations. I reject the state’s whole damned proposition.”

“Brother Flyte?”

“I say no, with similar reservation.”

“I too say no,” the Chief said, “with similar reservations … and so, our Brother Barbour, we come back to you. Are you ready to state your views and vote?”

Twice he started to reply. Each time he felt a choking sensation as though a hand had closed over his throat. He realized his heart was beating rapidly, his face felt flushed, his skin hot. He was actually physically uncomfortable, in an odd but perhaps not surprising reflection of his inner turmoil. Now that the moment had come he again felt completely uncertain and adrift as though he were floating somewhere out beyond the edge of reason.

“I—” he began; stopped; swallowed. “I…”

The Chief studied him for a moment with a kindly expression.

“Would you like more time, Tay? We really aren’t under all that much of a deadline. If you want another day or two—”

“I could take ten,” he said, finding his voice with a wry bitterness, “and still be no surer. Why don’t you give me overnight, if “—he looked along the table: sympathetic looks responded—“if that wouldn’t inconvenience the rest of you too much.”

The Elph nodded.

“If you’re sure that’s enough—?”

“It’s got to be,” he replied, something close to desperation in his voice. “I can’t keep myself from facing this any longer.”

“Very well,” the Chief said. “We’ll meet again at ten tomorrow. Will you be in your chambers most of the time?”

“Except when I go home to sleep, I expect. If I can sleep.”

“Good,” the Chief said. He smiled. “No doubt some of us will want to communicate with you to help you make up your mind … since you’re the swing vote, now, and the final decision is up to you.”

And so it was, with no possibility of equivocation or evasion any longer. Now the twistings and turnings, the balancing of arguments, the battle of pros and cons that had occupied most of his active hours and underlain all his days and thoughts since his return to Washington must cease. There was no more hiding place down here. Now he was about to find out what it could mean to be a Justice of the United States Supreme Court with everything depending, and the attention of his country and the whole world focused, inescapably, upon him.

For an hour or so after he returned to his chambers he simply sat, hardly thinking at all, while time drifted, his mind drifted, the universe, it almost seemed, drifted.

He hoped for a while that out of the drift would come some sudden revelation, some blinding answer that would make it all clear. It did not. He would still have to work it out for himself. There still was no easy way.

Slowly and painfully he began to review the arguments of both sides … measured against Janie, against whom all things seemed now to be measured…

And this, of course, was where it all broke down, and where, each time he thought he had reached some sort of compromise with conscience and conditioning, it all fell apart as the hours dragged slowly on through afternoon and into evening.

Janie … Janie …
Janie.

Mary need not worry that his daughter was too far away to influence his decision.

He did indeed, as The Elph had predicted, hear from his sister and brethren, in some cases several times, as the long hours passed. Memos and phone calls always flowed back and forth between chambers on any important case; sometimes personal visits were included if friendships were particularly close. In his case he had not been in office long enough to develop any, except of course with Moss; and Moss, knowing very well from student days that there came a point where it was best not to push Tay any further, called him once, said, “You know what I think, but you do what you think is right,” and hung up without waiting for an answer. All the others either sent memos or telephoned, and in some cases, such as Justice Wallenberg and the Chief, did both.

Tay fended off three memos and four phone calls from Clem as best he could, finally terminating the discussion by saying in a tone of cold exasperation, “Justice, give me some credit for having
some
brains, if you don’t mind! All right?”

“Well,”
Clem said.
“Well!”

“Thank you,” Tay responded crisply. “I appreciate that,” and hung up.

The Chief, as was his nature, was more sympathetic, more diplomatic and obviously working toward some purpose of his own over and above convincing Tay to go with what the Chief hoped would be the majority. Duncan Elphinstone was an astute man and he had given considerable study to his new Associate.