Decision

by Allen Drury

  “I don’t do sloppy work!” Sarah said, face flushing.

  “I did not say you do,” Mary said calmly. “I said some people may let their children do sloppy work. I don’t, and I presume your parents do not, either. I’m rather surprised, frankly, that your mother and father would encourage you to skip school and even permit you to encourage someone else to do the same. It is not what I would have expected from a Supreme Court Justice.”

  “Well,” Tay said shortly, “I am a Supreme Court Justice—or about to be, anyway—and I can’t see any valid reason at all why Janie shouldn’t accompany Sarah if she studies ahead and gets things in order before she leaves.”

  “Just say I am a terrible mother who wishes to protect her daughter’s integrity and character,” Mary said, “and leave it at that. I know it is terrible of me, but there it is. Janie,” she said flatly, “will not go on this harum-scarum adventure with you, Sarah, so you both had better stop talking about it. I will not permit it, and that is final.”

  “It is not harum-scarum,” Sarah said indignantly, also close to tears. “It is a real occasion.”

  Mary sniffed.

  “So I gather you have been told. I hope you enjoy it. Jane will not.”

  “Daddy—” Janie appealed, dissolving at last. “Daddy—”

  “And appealing to your father,” Mary said, showing her first signs of agitation, “will not do you any good. I see you girls have finished your dinner. Go along and study, please. Now.”

  “Oh—” Janie said. “Oh—”

  “Come on, Janie,” Sarah said, managing a fair amount of dignity as she got up and started toward the stairs. “It’s no use talking to your mother.”

  “Or your father—” Mary began, but he suddenly cut her short.

  “You girls go along,” he said harshly. “I’ll talk to your mother.”

  But their wan looks back indicated that they did not put much faith in that, nor did he as Mary called firmly, “Julia!” and Julia scurried in and began removing the remnants of the meal. Mary walked straight into the den, turned and faced him.

  “Taylor Barbour,” she said evenly, “I will not permit my daughter to go on this wild adventure with that—that—little southern belle!”

  “For heaven’s sake, Mary,” he said, feeling suddenly tired—it had, after all, been a rather long and emotion-filled day—“Sarah is a perfectly decent child. Quite a little lady, in fact.”

  “She treats Julia like dirt,” Mary said, “and she is not a good influence for Jane.”

  “She treats Julia southern sometimes,” he said, “but you notice Julia doesn’t stand for it. Julia can take care of herself. They all understand one another down there. And as for Janie, they’ve been friends since they were a year old. Why is she suddenly such a bad influence?”

  “It isn’t ‘suddenly.’ It’s in the last year or so, when Sarah has begun to blossom out and turn into a little flirt. She’s giving Janie ideas about boys.”

  “Well, I suppose Janie’s going to have them, isn’t she? That seems perfectly normal to me.”

  “Jane is a slow developer,” her mother said. “She isn’t ready for it yet. I’m sure she and Sarah are up there right now talking about the subject. I don’t think Sarah thinks of anything else these days. It isn’t good for Janie. And as for persuading Janie to walk home through Georgetown at this time of night—”

  “We don’t know who persuaded whom,” he said. “They did it, and it was very unwise and I supported you in your objections, didn’t I? I understand your feelings, both as a parent and as—as a victim.”

  “You can’t understand,” she said with a shudder, eyes darkening with the thought of the always haunting incident that had occurred in the supermarket parking lot one evening soon after they had moved to Washington. “Nobody can understand that except another person it’s happened to. Mugged and robbed and almost raped—” She shuddered again. “Nobody can understand it. Certainly not a husband.”

  “I try,” he said, bleakly. “I’ve tried all these years. I suppose it’s part of why you dislike Washington so—”

  “I hate Washington.”

  “—and why you’re so overly protective of Janie—”

  “I can’t be ‘overly protective’ of Janie,” she said fiercely. “She’s all we have. And you ought to show some concern for her too, if you were any kind of a father!”

  “Oh, my God, Mary,” he said, almost literally bereft of words. “My God, how can you say such a thing… Anyway,” he resumed, reverting almost desperately to the previous subject, which at least made some sort of sense, “forbid the girls to see each other altogether, then. Don’t stop at just some—some occasion down in South Carolina. Put on a complete ban and see what good it does you. You’ll really have Janie intrigued if you do that.”

  “And as for that dedication—”

  “We were all invited, actually, but Moss said he assumed you wouldn’t want to go. I agreed. You wouldn’t.”

  “Well, don’t put the burden on me,” she said, sitting down and folding her hands composedly in her lap. “I don’t think it would be fitting for you, either, would it, as a Justice who may have to pass on atomic energy matters?”

  “You are right,” he conceded, exasperated by her ability, still unimpaired, to analyze things with considerable clarity. “That is quite correct. He told me Sarah might be going and I suggested that she invite Janie.”

  “Are you pleased with the rumpus you stirred up?”

  “I’ve stirred up?” he demanded, exasperation growing. “To me it was just a nice outing the girls could go on together—a fun thing, Mary. Not a desperate issue to get everybody upset about. I just thought it would be fun.”

  “You just didn’t think, if truth were known,” she said coolly. “I think it is time to phase out that friendship a bit. As Sarah gets older she gets more like her mother and father. I’m not going to have my daughter associating too much from now on with that little magnolias-and-swamp-adder character, sweet as honey to your face and hard as nails underneath. You can’t trust a one of them.”

  “Mary,” he said in a tired but dogged tone, “I do not think that there is any harm at all in letting Janie go to Pomeroy Station with Sarah, and I would like you to relent.”

  “No,” she said quietly.

  “Not even if I said please?”

  “Don’t humble yourself,” she said with a dry little laugh. “It doesn’t become you. Why don’t you go somewhere and think about the Court? That ought to be enough to occupy anyone for quite a long time.”

  He looked at her steadily for a long moment. She looked steadily back.

  “Oh, I’m sorry,” she said, getting up with an exaggerated quickness. “This is the den, isn’t it? And you probably want to think here. I’ll go on up and read. Take your time. No hurry.”

  “No,” he said, voice expressionless. “No hurry.”

  After she had gone he sat for some minutes staring at the floor, face weary and set. Then he sighed heavily. She was right. He should “think about the Court.” Apparently there was not going to be much else to occupy his thoughts or engage his heart from now on.

  He remembered that his confirmation hearings would be coming up very soon, and that he should put his thoughts on the law in order. He went to the desk, sat down, placed a blank piece of paper before him and forced himself to concentrate. After a few moments it came easily. His mind raced, his pen raced. He was far away from quarrels, trials, tribulations, Sarah, Jane, Mary—back with the law, to which, he knew she was convinced, he had always really given his deepest most heartfelt and most lasting commitment in all their years together.

  In the great white building, now almost entirely silent and deserted as the clock moved on, the Chief Justice, kindly face and shock of white hair pooled in the light of his favorite battered old student lamp from Duke Law School days long ago, was also writing his thoughts on the current state of the laws. He had abandoned Steiner v. Oregon some ti
me since. His mind had wandered for a bit through casual concerns and then had come inevitably back to crime, violence, horror, the aching and explosive burdens of a society awry—a subject he would soon have to address in his annual speech to the American Bar Association. It was almost ten o’clock. He knew he must get home to Birdie soon or she, though long inured, would begin to worry. His mind also raced, his pen too hurried over the paper.

  “Confronted by such a situation,” he wrote, “we must ask ourselves where can society best seize upon the problem and in what direction should our most diligent efforts go? It seems to this observer that there must be a greater determination, a more diligent safeguarding, a greater willingness to resort to stronger action and a more stringent attitude toward those who—”

  “So,” wrote the stocky figure hunched over the battered desk in the isolated cabin in the trees near Pomeroy Station, “what should our Manifesto be? It should be this: to say to Society—Beware. We must be more diligent. We must fight with greater determination. We must be willing to use strong action. We must be unforgiving and stern toward those who—”

  In the tiny bedroom in back he could hear a sleeping grunt from the baby, a steady snore from its mother. An expression of amused contempt crossed his face for a moment. He glanced at his gold wristwatch, saw it was almost ten o’clock. He hid his masterpiece carefully away in his knapsack, put it under the mattress of the sagging old sofa, snapped off the light, shucked off his clothes, lay down and drew a scratchy old army blanket up to his chin.

  Serene, untroubled, soothed by an absolute and absolutely sustaining conviction, he was instantly asleep.

  ***

  Chapter 7

  The next few days went fast for the Court and its member-designate. In the marble edifice where it could be said, as the late Associate Justice Van Devanter once did say, “We look like nine black beetles in the Temple of Karnak,” the term began to move into high gear as it neared its finish. Of the approximately 5,000 cases that had come up to them since last October, more than 4,300 had already been disposed of. By diligent overtime and ruthless selection, they had managed to winnow the number granted certiorari to 203, some few major, most relatively minor, but all bearing on some point of clarification or precedent. Now they were down to a handful. The end was in sight.

  They were able to congratulate themselves, as they often rather smugly did, that despite the steady growth in the number of cases in recent years, it still took only nine Justices and a staff of no more than 350 to run their entire co-equal branch of the government, whereas the Executive bureaucracy remained well over 3,500,000 and in the Legislative Branch the 100 Senators and 435 Representatives felt they had to have more than 50,000 staff members to assist them.

  The Supreme Court was a tidy operation and the Chief and his sister and brethren prided themselves upon the fact and took pains to see that it remained so. “You have to have space to think in this job,” Clem Wallenberg put it; and they surrounded themselves with it and preserved it jealously. Small, concentrated, powerful: they felt their impressively small size was part of their impressively enormous authority. Multum in parvo—much in little. It was a nice feeling.

  So things moved forward briskly at the Court toward the conclusion of the term. A block away along First Street, in the Everett McKinley Dirkson Senate Office Building, the Senate Judiciary Committee also moved forward with its hearings on the nomination of Taylor Barbour of California to be Associate Justice. The chairman, Senator Henry Randall of Virginia, started things off with a courtly and emphatic endorsement, echoed by equally glowing statements from four of his colleagues and approving nods from several others. The burden of proof was obviously going to be on Tay’s opponents, if any. In the face of his evident good faith and integrity they did not get very far.

  It was established very quickly that he was not a “Cadillac liberal,” nor a “headline liberal” nor a full-page-ad-in-the-New-York-Times liberal: he was the genuine article, going back philosophically to Woodrow Wilson, Hiram Johnson, the La Follettes, Burton K. Wheeler, Justices Holmes, Brandeis, Cardozo, Douglas—the “old-fashioned” liberalism rooted in the very fabric of American democracy, springing from the earth of the plains and the slums of the cities. No opposing testimony was able to dim this fact.

  The hearings concluded after three days and twenty-three witnesses, eighteen of whom were favorable and only five opposed—and they, as Senator Randall remarked to him in a wry private comment, “from the outer fringes of anti-abortion, female subjugation and Love God, God damn you.” Tay used the occasion to put his personal and public philosophy on the record in words no one could misunderstand or misinterpret.

  “I believe in the law,” he told the friendly committee and overflowing Senate Caucus Room audience. “In fact, I love the law…

  “I have given a lot of thought in the past three days as to where a truly dedicated Justice of the United States Supreme Court should stand on all the many issues that come before him—or her—and it seems to me that the stand should be somewhere in the intelligent, balanced and reasonable middle. If one has to categorize me, as a few here have attempted, I suppose it is fair to say that I am ‘liberal’ in what I hope is the most reasonable and sensible meaning of that term.

  “I would like—” he said, and paused. For some reason he was suddenly conscious of Cathy, seated behind him at the press table. They had greeted one another quite casually—perhaps too much so, on both sides—when he had entered the room this morning.

  “I would like to give you my concept of what real liberalism is, and how a true liberal acts. Those are words which, like ‘conservatism’ and ‘conservative,’ in recent decades have become so debased by many people that they have become simply slogans, essentially meaningless. But there was an original and good meaning for all of them, and I hope I have always remained true, and always will remain true, to that original meaning.

  “Within, that is, the American context. There are some forms of liberalism, or so-called liberalism, that are a long way from our generally mild home-grown variety. Them I condemn and oppose, always have and always will.

  “It seems to me that American liberalism, in its truest and finest form, is a belief that society does have an obligation to assist the less fortunate; that it does have a responsibility in such areas as an adequate education; readily available, inexpensive health care; a floor under wages; the right of unions to organize and protect their members subject to the privileges and restraints of reasonable law—and that making people healthier, happier, more educated, more productive is only basic common sense and is the surest way to guarantee the security and growth of the nation.

  “There are degrees in all these things, and I suppose the dividing line between ‘liberals’ and ‘conservatives’ probably comes, or should come, not on objectives but on degree. I am sure that basically all Americans believe in these things. It is only the question of how far and how fast government should go in trying to achieve them—or whether, in fact, government should intervene at all, but rather should leave their achievement to the so-called ‘natural laws’ of a free society and a free economy.

  “It is at that point, Mr. Chairman, that I part company with the more conservative of our conservative friends. I believe government has not only the right but the obligation to intervene, and I think its interventions, subject to common sense and common democracy, are good. I think that was decided once and for all in McCulloch v. Maryland in 1821, when the Marshall Court declared that the Constitution comes from the sovereign hand of the people and can, virtually without restriction, ‘be adapted to the various crises of human affairs.’

  “You remember the basic dicta:

  “‘The government comes directly from the people.’ It is ‘a government of the people.’ It ‘represents all and acts for all.’ It is ‘supreme … and its laws form the supreme law of the land.’ Since it is given powers to secure ‘the happiness and prosperity of the nation’ it ‘must also be e
ntrusted with ample means for their execution.’ At the same time, ‘The powers of government are limited,’ and its limits ‘are not to be transcended.’ Yet these must not be overly restrictive: Congress has the power to perform the duties assigned to it ‘in the manner most beneficial to the people.’ If the end is legitimate, it lies within the scope of the Constitution, ‘and all means which are appropriate, which are plainly adapted to that end, which are not prohibited, but consistent with the letter and spirit of the Constitution, are constitutional.’”

  He paused, smiled and shook his head admiringly.

  “John Marshall was a very clever man.”

  Henry Randall smiled back.

  “You’re no slouch yourself, Mr. Secretary. Anyone who can quote McCulloch v. Maryland with that exactitude—”

  “Mr. Chairman,” Tay said, “I have read and re-read that case so many times over the years, seeking support for my own convictions and the warrant for what I wanted to advocate and do both as private citizen and as public, that I could almost recite it backward in my sleep. I’m not so sure Chief Justice Marshall understood it as ‘liberal’ in the context in which we would use the word today, but that’s the end effect.…

  “So I think the mandate for a traditional style of liberalism is well rooted, and I make no apologies for having adhered to it throughout my career. Mine is not a far-out liberalism: it is really quite a conservative liberalism, if I may state it so. But it is liberal, and I am not ashamed of it.”

  He sat back, pleasant, calm and self-possessed, graying, handsome and distinguished; already, in mind’s eye, seeming to wear the flowing black robe. There was a heavy burst of applause, the hearing ended with handshakes all around. Henry Randall announced that the committee would go into closed session in five minutes to vote on the nomination, emerged smiling fifteen minutes later to report that they were recommending confirmation to the Senate by a vote of 13‒3. Over on the Senate floor the Majority Leader announced that the final vote would come immediately after convening next afternoon. When it did it was 89‒9. Some Supreme Court nominations had held their surprises. His, as Wally Flyte and Rupert Hemmelsford had accurately predicted, was not among them.