Decision

by Allen Drury

  He had given a resounding and unshakable Yes to the first question; and despite the hatred, annoyance and constant opposition of his cousin Jefferson, he had determined—and got away with it—that the answer to the second should be a Yes fully as resounding and unshakable.

  Altogether, as most lawyers conceded and as nearly all subsequent Justices of the Supreme Court recognized gratefully, an amazing and remarkable man, who even more than Jefferson and the other Presidents he served with and outlasted in the thirty-four years from 1801 to 1835, placed the stamp of his personal ideals, beliefs and convictions upon the American government.

  The great cases thundered down the years in Tay’s memory as they did in that of every lawyer who ever studied the Court:

  —Marbury v. Madison, 1803: Marbury, a justice of the peace in the District of Columbia, had been appointed by outgoing President John Adams but denied his appointment by incoming President Thomas Jefferson. He sued Madison, Secretary of State, demanding his commission. John Marshall used the case to establish the right of the Court to declare acts of the government unconstitutional. First he threw a sop to his cousin by ruling that the withholding of Marbury’s commission was legal; then he skillfully cut the ground out from under his cousin by going on to state that the law under which Congress gave the Court jurisdiction in the case exceeded the Court’s original powers as stated in the Constitution, and therefore was itself unconstitutional—as decided by the Supreme Court, which, Marshall asserted, had the right to determine such constitutionality or unconstitutionality. It was a masterpiece of yes-and-no—or, rather, no-and-yes. From it the Court emerged, almost behind the President’s back, as the arbiter of the Constitution. The dislike between the cousins grew, but the Chief Justice had claimed his ground and the President, frustrated and angry, could not decide how to dislodge him. And although Andrew Jackson was to remark spitefully in a relatively minor case years later, “John Marshall has made his decision, now let him enforce it,” the Court’s prestige survived and it went right on successfully exercising the power John Marshall had blandly and designedly appropriated for it.

  —United States v. Burr, 1807: Jefferson’s renegade former Vice President, Aaron Burr, was accused of treason. Burr demanded that a subpoena be issued against the President, requiring him to appear and produce his evidence against his former Vice President. Marshall, sitting as Circuit Justice for the Fifth Circuit in Richmond, upheld the request and issued the subpoena. Jefferson, furious, insisted that the President was not subject to such action. Marshall backed down to the extent that he ruled that the President’s attorneys might examine the evidence and withhold anything they deemed vital to national security. Jefferson backed down by instructing his attorneys to do this, though he himself still refused to appear. Marshall felt he had vindicated his position that all citizens, no matter their station, were equally subject to the law. Jefferson, the presumed democrat, felt he had vindicated his position that the President was above the law and could defy the mandates of the courts. Both cousins realized they could push their contest no further without shattering forever the delicate balances of the American system as it then existed. It was not until 1974 that the Supreme Court ruled 8‒0 that Richard Nixon must produce his Watergate tapes. One hundred sixty-seven years after United States v. Burr, John Marshall won his battle with his cousin. The law finally, in a much stronger nation and a much different climate, was declared equally applicable to all—but only then, perhaps, because of the personal nature of the President, which was far different from that of Thomas Jefferson.

  —McCulloch v. Maryland, 1816: the opinion to which Tay had paid tribute in his testimony before the Senate Judiciary Committee in which a Marshall-dominated majority affirmed the right of the federal government to intervene where necessary in discharge of its constitutional obligation to secure the welfare and happiness of the citizenry.

  —Trustees of Dartmouth College v. Woodward, 1819: which established conclusively that acts of a state are subordinate to those of the national government. The legislature of New Hampshire had passed laws against Dartmouth College. The decision held that these were repugnant to the Constitution of the United States. They “must, therefore, be reversed.”

  —Gibbons v. Ogden, 1824: which asserted the authority of Congress over interstate commerce and completed the greater roster of the Marshall cases.

  Such enormous powers, created almost single-handedly by one supremely shrewd and determined individual, inherited by nine fallible human beings. Again he glanced along the bench at his eight colleagues as Steiner v. Oregon concluded and argument of the next case began. “Although the Court is essentially judicial,” Alexis de Tocqueville had written long ago, “its prerogatives are almost entirely political. Its sole object is to enforce the execution of the laws of the Union…” And, prescient, wise and foresighted as always, he had concluded concerning its members that, “Their power is enormous, but it is the power of public opinion. They are all-powerful as long as the people respect the law; they would be impotent against popular neglect or contempt of the law.”

  And that possibility, in this unhappy time of raging crimes, ever-spreading violence and a citizenry increasingly restless and disposed to take the law into its own hands, was the possibility they faced now: “popular neglect or contempt of the law.” Under John Marshall they had survived the opposition of Presidents and the objections of the states. Under Warren Burger they had survived the willful obstructions of a President and finally made the law supreme over even Presidents. But what would they do if the great mass of the citizenry ever turned against them? If contempt of the law became, as it now threatened to become, a way of life not only for those who broke it but for those who felt they were defending it? If the center did not hold, and the growth of anarchy outstripped almost two hundred years of careful, patient building of the walls that held back the night?

  He shivered suddenly and became aware that from the other end of the bench Moss was watching him with a casual but speculative glance. It swung away. He was left puzzled and disturbed. What was the matter with Moss? Did he know? Could he possibly—?

  But it was not possible. True, Moss had seen him after he left his office in the Labor Department that day for the last time, but it had been only the most fleeting, casual glimpse…

  His secretary had departed at five, he had remained until six cleaning away the few remaining personal items from his desk: it made a good excuse for leaving when the building was virtually deserted. Only the night guard, a personal friend from many late hours during labor troubles, saw him go.

  “Good night—Mr. Justice,” he had said with a broad grin.

  “Good-bye,” Tay had corrected. “I’m afraid this is it, Robinson.”

  “We sure hope you’ll come back to see us,” Robinson said. “Won’t be the same without you. But we know you’ll be good up there on the Court, too.”

  “I’ll do my best,” he promised, holding out his hand.

  “You can’t do any less,” Robinson said, giving him a firm shake. “It just isn’t in you to do any less than your best—Mr. Justice.”

  He smiled.

  “I hope you’re right, Robinson. I’ll try.”

  “You do that,” Robinson said, bowing him into the elevator to the garage with a flourish. “You just can’t go wrong. We know it!”

  But what would Robinson and the rest of the Department have said, he wondered as he got in his car, took a deep breath and started up the Hill toward Fifth Street, if they had known he was sneaking out, like a typical Washington cliché, for a rendezvous of whose ultimate outcome he did not have the slightest doubt?

  What would they have thought if they had known that, in spite of many opportunities over the years, this was truly the very first time since his marriage that a strong code of personal honor and public duty had cracked enough to permit such an event? Some, no doubt, would have been astounded that it happened at all. Others would have been humorously contemptuous that
it had not happened a hundred times, so numerous were the opportunities in the capital’s ever-shifting, politically mobile population.

  He reflected with a sudden impatience that it really did not matter what they would have thought: all that was important to him was what Taylor Barbour thought. And that, he had to admit with enough objectivity remaining to prompt a wry smile, was confused at best.

  Some interior exchange had gone on during their interview, an increasingly intimate mutual appreciation that had surfaced during their telephone conversation earlier this afternoon. This had been only the second time they had talked, he reminded himself; things had no right to hurtle forward so fast. Yet the fact was that they had. Why? He could not have said, unless it was simply the accumulation of all his frustrations and unhappiness with Mary, seeking whatever outlet was available, taking the first that came along.

  Yet in this he found he was genuinely afraid that he was being unfair to Cathy. He supposed many men in his situation were not that concerned about it. But his curse, as he had recognized early in life, was fair-mindedness. It was great for a public servant, splendid for a judge, but he told himself ruefully that it could certainly raise hell with one’s personal life. Much simpler to be uncaring, egocentric, ruthlessly selfish and cold-blooded: then you didn’t see both sides and find yourself in danger of becoming paralyzed by it. Not that he was, obviously, for here he was driving up the Hill in the soft May evening amid the still steady stream of traffic homebound to suburban Washington and the Maryland suburbs south along the Potomac. But it was not an easy journey for a decent and fair-minded man.

  It challenged, as he realized, his concept of himself.

  Particularly did it challenge what he had become over the years, a genuinely distinguished public servant; and what he was now, the newest member of the highest and most unusual tribunal in his own country and possibly the world. Did other public servants do this sort of thing? Yes, there had been examples during his years in Washington: but not Taylor Barbour. Had other Justices done this sort of thing in the Court’s long history? Perhaps, but not Taylor Barbour. Why, then, was Taylor Barbour doing it?

  He shook his head angrily, and drove steadily forward with patient skill through the slow-moving traffic. As he stopped at the light at the corner of the Dirksen Office Building, someone honked sharply twice. He glanced to his right toward the Court and saw Moss waving from his dark blue Lincoln Continental. Tay waved back. Moss took both hands from the wheel, lifted them in a puzzled gesture and gave him a humorously questioning look, as if to say, “What are you doing going out Northeast? You live in Georgetown.” Tay smiled and shook his head, expression noncommittal: let Moss speculate. He thought uncomfortably now that maybe Moss had. Maybe that accounted for the expression Tay had just intercepted.

  His thoughts returned momentarily to the bench. An older lawyer was arguing another case. It was almost eleven forty-five. Soon they would be breaking for lunch. He wondered what he would say if Moss approached him with it directly. It had better be convincing, he thought unhappily, because Moss was a shrewd and intuitive man behind the southern charm.

  Ten minutes after leaving the Labor Department, though it seemed more like an hour as the traffic slowed him down, he had arrived at Stanton Square and Fifth Street. There indeed was a little yellow house, “neat, I like to think,” a picket fence, boxwood, a red-and-green fanlight over the door; no sign of life he could see at the moment. He drove on half a block, found a space, parked and locked his car, walked back under the trees that overarched the street, stepping carefully on the uneven brick-paved sidewalk, probably as old as the 168 years she had mentioned for the house.

  He came to the neat little gate in the picket fence, opened it, looking neither left nor right, walked up to the high front stoop; paused, automatically adjusted his tie, touched the bell. He heard it chime melodiously deep in the house, expected to hear children call. Instead a dog yapped sharply twice and was evidently hushed. Heels clicked along the hall. He felt a sudden ridiculous panic, took another deep breath in an attempt to alleviate it. She opened the door, smiled, held out her hand, drew him in. They stepped apart as she closed the door and stood for a moment staring at one another.

  “You did it,” she said, trying to sound lightly humorous, not quite making it. “I didn’t think you would.”

  “I said I would, didn’t I?”

  “Oh, yes. Anybody can say they’ll do something. Not everybody does it.”

  “I do,” he said gravely.

  “I know,” she said with a little gurgle of laughter, sounding genuinely amused this time. “You’re Taylor Barbour. You keep your word because-you-are-a-good-boy.”

  “Not particularly, at this moment,” he said with a sudden self-contempt that made her look genuinely concerned and half reach out for his hand, which he kept rigidly at his side.

  “I’m sorry,” she said after a second. “I only invited you for a drink. If you’d feel better about it, we can forget it and you can go right now.” She turned and moved toward the tiny old-fashioned parlor, blinds down, that faced on the street. He followed her, took the antique rocking chair she indicated. She took a seat facing him on a horsehair sofa that must have gone back to Abe Lincoln’s day.

  “I didn’t mean that as harshly as it sounded,” she said. “I’m very happy to have you here. I just meant that if it was going to cause too many problems—”

  “How can it not cause problems?”

  “Then why—” she began, almost desperately.

  “Because,” he said quietly, “I want to. Do you?”

  “What?” she asked, again sounding halfway between humor and desperation. “Have a drink? Yes, I’d like a drink. What will you have?”

  “Is that all you asked me here for?” he inquired, face somber, eyes holding hers with level candor. “If so, I’ll have a light gin and tonic, please.” He smiled suddenly. “And we will Chat,” he added, giving it an ironic capital.

  “Well, heavens!” she said with a shaky little laugh. “At least we can start that way, can’t we? We hardly know each other, after all.”

  “Well enough,” he pointed out, “for you to invite me, and I to come. Where are your children?”

  “Visiting friends for dinner. They won’t be back until nine or so.”

  “Did you arrange that?”

  “Who cares?” she demanded with a little blaze of anger. “Do you want them here? Are you missing something without them?”

  His eyes dropped before her challenging gaze.

  “I’m glad they’re not here,” he said quietly.

  “All right, then! I’m going to get our drinks!”

  “All right, then!” he said, mimicking. “Get them!”

  “All right!” she said, and for the first time they exchanged tentative, but genuine, laughter. “This is no time to be stuffy.”

  “Get the drinks,” he ordered. “I’ll wait.”

  “You’d better,” she said, rising and going into the hall toward the kitchen.

  I will, he thought; though God knows what I’m getting into. But I can’t seem to stop. Not, he added honestly to himself, that I want to.

  “There,” she said, returning in a couple of minutes, handing his glass to him. “I made it light, as you requested.”

  “Cheers.”

  “Cheers. I thought you did very well in the Senate.”

  “I was pleased,” he said. “It was a very comfortable vote.”

  “Eighty-nine to nine is more than comfortable, it’s overwhelming. I knew you had a good reputation but I didn’t realize quite how awesome it must be to a lot of people.”

  “Not including you,” he suggested. She started to smile, then turned quite serious.

  “Oh, yes, I’m impressed. I’m very impressed.”

  “Why should you be?” he inquired with a return of bitterness. “I’m here behind the world’s back, cheating on my wife—”

  She flinched as though he had slapped her; res
ponded very quietly,

  “You assume a great deal very fast. What makes you so sure?”

  “Shouldn’t I be, Cathy Corny?” he inquired, almost angrily. “Hasn’t it been implicit almost from the beginning? Why was I invited here?”

  “You shouldn’t be so honest,” she suggested. “Someday it may get you in trouble.”

  “It may get me in trouble right now,” he said, staring into some far distance she could not fathom.

  “If you don’t want it to,” she said, still quietly, “why did you come?”

  He shook his head angrily once again as if to clear it, took a deep swallow of his drink, looked back at her.

  “Because I like you,” he said harshly.

  For a second a gleam of amusement came into her eyes; she almost laughed.

  “That’s nice. You express it with great tact. You’re making this a very romantic moment, you know.”

  “Well—” he said; and suddenly, for some reason he could not understand, he too felt close to laughter; and in a second gave way to it. She joined him and for several moments they were helpless with it.

  “You are so—something,” she said finally. “What a Don Juan! I think we’d better keep laughing. I’m not sure I can take any more of this as a serious proposition. Small letter p.”

  “Cathy,” he said, abruptly earnest again. “I am serious. Believe it or not, I’ve never done this before—”

  “Believe it not,” she interrupted crisply, “I have, but believe it or not, it’s only happened twice in the six years since my divorce. Neither lasted long, and it didn’t matter a damn either time. But if it helps your conscience any and will make it any easier for you, I’m a Genuine Fallen Woman, Noble Justice, and you needn’t worry one little bit about your morals. You can blame it on me: it’s all my fault.” She laughed again, quite genuinely. “What in the world are we talking about, anyway? Where’s the problem? It isn’t going to happen anyway, at this rate. Why don’t you go on home?”