Decision

by Allen Drury

  “If you don’t mind, Justice,” he said to Moss, voice like ice, shock of white hair quivering, “we will conduct ourselves like gentlemen in the chambers of this Court. Or I shall terminate this conference and adjourn the Court for the summer right now, if need be… Moss and Tay: no one here lacks any human sympathy for what you two have been through. I do not think, Clem, that it does any good to be—as Moss quite accurately said—smug and superior. It is a wonder our brethren are able to be here at all, so soon after this tragedy; objectivity may not yet be entirely possible. But I would hope that in due course, as we discuss this matter more deeply, a reasonable amount of it may be re-established in all of us. I would remind the Court that that is what we are here for.”

  Justice Wallenberg scowled and did not answer. Justice Hemmelsford leaned forward.

  “I am wondering, Chief,” he said quietly, “whether perhaps it isn’t asking too much of our brethren, who have suffered these terrible tragedies, to participate in this matter. Shouldn’t they perhaps consider removing themselves from consideration of the issue? If objectivity is not possible—and perhaps it isn’t really for any of us, but at least more for us than it is for them, I am sure—then would not withdrawal be the most judicious act?”

  “I’ve expressed my opinion on this to both of them,” the Chief said promptly. “Perhaps others would care to, so that they can at least have the benefit of some consensus here—if there is one. You’re clear enough, Rupe. Wally?”

  One by one they did so: Wally remarking that their withdrawal would not mean “any shame or disgrace or loss of public interest. On the contrary, I think it might be seen by many as the most honest and honorable thing to do”… Clem saying flatly that while he sympathized with their emotional situation, “they ought to disqualify themselves. Don’t expect they will, but they ought to”… Ray Ullstein remarking thoughtfully that he wouldn’t presume to give advice but “will simply make the assumption that has to be made about this Court by everyone if we are to survive as the powerful institution we are—and that is that each of us makes his individual judgment as honestly and honorably as he can on the basis of the facts as he sees them. Therefore I know that whatever Moss and Tay decide, it will be their best decision and their most honest one”… May McIntosh expressing similar sentiments and concluding that “whatever you decide, my friends, it will be the most honest and honorable decision you can make. Good luck”… Hughie Demsted, saying he could sympathize as a fellow parent with their conflict between regard for the law and desire for vengeance and concluding that “Nobody can tell you what to do and nobody really has a right to judge what you do unless he sits in the same place. All I can do is join in wishing you luck.”

  Moss gave them a small, wry salute: Tay said, “Thanks, all.” Silence again descended on the Conference Room.

  “Well,” The Elph observed finally, “that wasn’t much help to you, was it, boys? Or to us either, except as it indicates arguments to come.”

  “Chief,” Wally Flyte said, leaning forward, “let me think out loud for a minute and see what you all think of an idea that’s just struck me. I said, more or less flippantly several weeks ago before this all began, that perhaps we could delay the issue of violence and the public reaction to it for a while in the hope that it might cool down—that perhaps we could sidestep it, at least temporarily. Now, one way or another, this appeal is obviously coming here. The young lady has announced her intention. If we are in session, there’s going to be a great demand, which I think under these circumstances we would be well advised to respond to, for us to grant certiorari, hear the case and rule on the merits. I’m not so sure we want to be in that position in the present climate of public opinion. A majority of us might not vote in such a way as to satisfy the general clamor.”

  He paused and the Chief Justice said, “So?”

  “So,” Justice Flyte said, warming to his argument with all the zest of an old Senate hand working out a deal, “what we do is, we quit this coming Monday. Everybody is expecting us to quit two weeks from now. We fool ’em. We just go home. Any opinions still pending can be filed with, and released by, the Clerk.

  “The appeal then becomes an appeal to a single Justice for stay of execution to permit review. If Moss does not disqualify himself, it comes to him as chief judge of the Fourth Judicial Circuit. Supposing for the sake of argument that he grants a stay of execution and refers it to the full Court, the presumption might be that we would have to come back into full session and review the case. But, again, nobody can make us. The Clerk can simply poll us by long-distance phone or telegram, we vote a flat yes or no, and we don’t have to go into the merits or get ourselves entangled in the national controversy.”

  “Very clever, Wally,” Justice McIntosh said, “but—”

  “Just a minute, now,” he said, wagging a cautionary hand. “Hear me out. If, on the other hand, Moss denies the appeal, the young lady is then free to Justice-shop for one more who she feels might give her the best deal. This, unless I miss my bet, and if he does not disqualify himself, is the other party at immediate interest”—he smiled to forestall any sarcastic implication—“that famed liberal and newest member, our Brother Barbour.”

  Tay nodded ruefully.

  “Right,” Wally said, as they followed him intently. “So then it comes to Tay as the second and final choice. Not wanting to pass on the merits either, but also not wanting to take full responsibility for denying stay, as I imagine none of us really would, he either grants stay himself and refers it to the full Court or, as permitted by the rules of the Court, makes no ruling, steps out of the way and passes it directly to the full Court. Again, we can follow the procedure I’ve outlined and simply vote it up or down long-distance, ignoring the merits and giving no explanation.

  “Or, if a majority decides to grant stay and grant a hearing we can put it off until the fall term begins in October. By which time, hopefully, a lot of this Justice NOW! clamor will have died down and we can consider in a much less heated atmosphere what should be done with the defendant and with the underlying issue, which is of course the death penalty.”

  He paused and beamed around the table like some white-haired old pixie who has just pulled the plum out of the pudding. “How does that grab you?”

  “It grabs me fairly well,” the Chief said slowly, “except that I don’t entirely agree with your assumption that the country will let us get away with it.”

  “And I don’t agree,” Clem Wallenberg said, “that the death penalty is the only issue. There are questions about the conduct of the trial that I intend to go into. I’m not so much against the idea of a delay, though, if we can manage it. I agree it might assure a less hectic climate to work in.”

  “I disagree with that, I’m afraid,” Hughie Demsted objected. “I think this country is on the rampage. I don’t think Justice NOW! is going to slow down over the summer just to suit us. Summer is when the crime rate rises, you know, not when it goes quietly away. I think the pressure’s going to keep right on growing and it’s going to be heavy—heavier than it’s probably ever been, thanks to the obvious intention of Justice NOW! and its organizers to keep it that way. So I’m with you, Chief. I’m dubious, too.”

  “I thought we were agreed,” Ray Ullstein said quietly, “that sooner or later we would have to meet the issue head-on. Why, then, try to be clever and dodge it now? It will only be waiting for us in an even more oppressive atmosphere in the fall. I say face it now.”

  “Perhaps we should have a show of hands, Chief,” Mary-Hannah suggested. Clem said, “I second that.”

  “Very well,” the Chief agreed. “If there’s no further discussion, those in favor of adjournment—” Justices Flyte, Wallenberg, Hemmelsford and—to his colleagues’ surprise—Barbour raised their hands. “Those opposed … Four to four again!” he exclaimed with mock dismay. Then his expression sobered.

  “I am very doubtful about this,” he said slowly, “so I think I will reserve my vote
for a while. I can see good arguments either way. I’d like to assess public opinion a little more closely, I think. Perhaps if we wait until after the weekend—”

  “Stop equivocating, Dunc,” Clem Wallenberg said tartly. “Nothing’s going to happen over the weekend.”

  But that, as they now found out, was his mistake.

  There was a hurried rap on the door leading to the Chiefs office. Tay, occupying the junior Justice’s role at conferences of being the general errand boy and go-fer, stood up and went to answer. The thin prim face, large glasses and high-piled gray hair of the Chief s longtime secretary peeked around the door’s edge.

  “Yes, Elizabeth,” he said with what for him was a rare impatience, “what is it?”

  “I’m sorry to interrupt everybody, Chief,” she said, obviously agitated, “but he just refuses to wait. He says he has to talk to you right now. I’ve hung up on him four times but he’s called me right back each time. I—I just don’t know what to do. It’s so—so—un-Court-like!”

  “That’s a good word, Elizabeth,” the Chief said with a chuckle, good nature quickly restored. “Relax, it’s all right. We forgive you. Who is it?”

  “A Mr. Stinnet,” she said. “From South Carolina.”

  There was a stir around the table and the Chief frowned. Obviously this kind of interruption was definitely not all right, in his view.

  “Oh?” he said coldly. “What does he want?”

  “He demands to talk to you,” she said. And repeated in a forlorn voice, “Right now!”

  “I’ll go choke him off,” Moss offered, rising. But The Elph held up his hand.

  “No,” he said thoughtfully. “Considering everything, maybe we’d better listen. Put it on this phone in here, Elizabeth, and also put it on the amplifier.”

  “Yes, sir,” she said, adding as she went hurriedly out, “He’s so persistent.”

  “He is that,” Tay murmured. In a moment there was a click and the cheerful voice of the attorney general of South Carolina boomed into the room.

  “Mr. Chief Justice, sir? Is that you, Mr. Chief Justice?”

  “It is,” the Chief said. “Why are you interrupting our conference, Mr. Stinnet?”

  “Oh, now!” Regard said, sounding genuinely contrite. “I am sorry, Mr. Chief Justice, sir. I really didn’t know.” An eager innocence came into his voice. “Would you like me to call you back in about ten minutes?”

  In spite of himself The Elph smiled. Regard remarked in the same earnest tone, “I could, you know, sir. I really could.”

  “No,” the Chief said. “You’ve got me now, you’d better hang on. Though I must say I hope you have a good reason.”

  “This is pretty important, Mr. Chief Justice,” Regard said fervently. “It really is!”

  “I’ve no doubt of it,” the Chief said. “Why don’t you tell me about it? Incidentally, this is the last place on earth where I want a caller to be overheard without his knowledge. You should know that I have you on an amplifier and the entire Court is listening in.”

  “Well, sir,” Regard said, sounding genuinely pleased, “I am delighted with the honor, Mr. Chief Justice and you-all, de-lighted. Hello, Moss! And you, too, Tay—Justice Barbour!”

  “I’m the only one who can answer,” The Elph said, smiling at his colleagues, who were in various stages of amusement as Regard burbled on; except for Moss and Tay, who knew very well that he didn’t burble without a purpose.

  “They listen,” the Chief went on. “I answer. Fire away, Mr. Stinnet. You have the rare privilege of addressing the Court-in-chambers in complete privacy. Assuming you’re not bugging me at the other end, that is.”

  “Oh, no, sir!” Regard exclaimed, shocked. “I wouldn’t do that, sir, no way! You just ask Moss, he knows me. He’ll tell you. Isn’t that right, Moss?”

  Moss nodded.

  “I think it’s probably all right, Chief. He’s not a fool.”

  “No, indeed,” the Chief said with his hand over the mouthpiece. “That I gathered some time ago… Very well, Mr. Stinnet, you’re well vouched for by your fellow Carolinian. What is this earth-shaking business, now?”

  “Shucks, Chief,” Regard said, “it isn’t all that earth-shakin’, really. It’s just a rally I’m plannin’ to hold that I want to invite you-all to attend. As my honored guests.”

  “And those of Justice NOW!?” Duncan Elphinstone inquired. Delighted laughter burst from the amplifier.

  “You know us!” Regard exclaimed. “You’ve heard of us! We’re not strangers to you!”

  “The word has gotten around, Mr. Stinnet.”

  “Then you’ll come!” Regard declared in a pleased voice.

  “Now, Mr. Stinnet. Suppose you just tell us about it and we’ll think about that later. I take it this is a rally of Justice NOW!?”

  “Oh, yes, sir,” Regard said earnestly. “I wouldn’t think of speakin’ anywhere else. From now on, all my speeches are under the auspices of Justice NOW! After all, it’s my baby, isn’t it?”

  “Indeed it apparently is,” the Chief agreed. “I suppose you’re to be congratulated on its phenomenal growth.”

  “It’s plumb out of hand,” Regard confided. “Even with computers, we’re fast losin’ count. We must be pushin’ ten million law-abidin’, indignant, active and aggressive people, Mr. Chief Justice, who are out to get anybody who stands in the way of true justice in this great land of ours!”

  “You’re a mighty force, all right,” the Chief agreed dryly, while down the table his sister and brethren exchanged glances. “When is this rally going to take place?”

  “This Sunday. High noon.”

  “Very dramatic. In Columbia?”

  “No, sir,” Regard said proudly. “Right there in the capital of the United States, sir. We have permission. Right there in Washington, D.C. Right there on the Mall, where so many foul, worthless, flag-desecratin’, democracy-betrayin’, liberty-killin’ pieces of human junk have had their demonstrations in the past. For once, Mr. Chief Justice and you-all, we’re goin’ to have a rally on the Mall that stands for America! For democracy! For true democracy—the people’s democracy! For justice! For Justice NOW! I’ve invited all the state attorneys general and most of ’em have accepted. Plus thousands and thousands of good folks from all over this land. It is goin’ to be a mighty thing, Mr. Chief Justice. A mighty thing! And I called you first thing because it’s only fittin’, it seems to me, that our great Supreme Court of the United States, the great defender and bulwark of our liberties, should be there. Particularly since two of your members, two good friends of mine, have just been the victims of the terrible sick violence in this country—which is all the more reason why you-all should be there. To show that you’re all standin’ together in the battle against crime and violence—to prove to the country that you’re really seekin’ equal justice under law—and swift justice too. Sure and swift and final. Isn’t that right, Mr. Chief Justice? Sir?”

  “I think it should be apparent to the country where we stand by looking at our votes, Mr. Stinnet. Is there really doubt that we are opposed to crime and violence? We are opposed to any kind of crime, even in the name of ending crime. We are opposed to any kind of violence, even in the name of ending violence.”

  “All of you?” Regard shot back and again there was a silence.

  “Mr. Stinnet,” the Chief said finally, “I have not consulted my colleagues on this, but I think I can speak for all of them when I say that the Court as an institution will not attend your rally.” He glanced down the table and they all nodded acquiescence. “Now, as to whether individual members might wish—”

  The negative head-shakes were unanimous.

  “I have just been informed by my colleagues,” Duncan Elphinstone said with satisfaction, “that none of them will attend on an individual basis, either, Mr. Stinnet. But thank you for thinking of us.”

  “Well,” Regard said, “I am disappointed, Mr. Chief Justice. I really am. Another thing, too, yo
u know—if you-all were there, might be it would prevent anybody from sayin’ anything nasty about you. Not that anybody will and really mean it,” he added hastily, “but sometimes folks get carried away in the heat of the moment. Sometimes when people start speechifyin’ you can’t be entirely sure what they’re goin’ to come out with.”

  “We’ll just have to take that chance, Mr. Stinnet.”

  “Don’t say I didn’t warn you, Chief,” Regard said in a cheerfully patronizing tone. “Don’t say you-all didn’t have fair warnin’.”

  “We’ll take our chances,” The Elph said calmly. “I would suggest, however, that if you persist in the methods you are using in trying to achieve justice you may quite inevitably run head-on into the methods we will approve to achieve it.”

  “Oh, sure, Mr. Chief Justice,” Regard said quickly. “But the way things are goin’ in the country, you know, it may not matter what you approve or don’t approve.”

  “Good-bye, Mr. Stinnet,” the Chief said crisply, and hung up.

  “Why, that impudent little squirt!” Rupert Hemmelsford said into the silence that followed. “He’s got a hell of a nerve! Somebody ought to tan his hide.”

  The Chief sighed.

  “Even though he may be right?” he inquired softly; and the silence returned and deepened as they all stared moodily at one another and then, responding to some instinctive, unanimous impulse, turned to look at John Marshall, gazing down at them with a calm impassive challenge in his dark, intelligent eyes.

  “If you like,” the Chief said, “we can gather here on Sunday to watch the proceedings on television. I’ll have them set up the big screen and prepare some sandwiches and coffee.” He smiled without much humor. “We’ll have a hang-the-Supreme-Court-in-effigy party.”

  “It’s been done before,” Justice Flyte pointed out with a jaunty bravado.

  “Not in a long, long time,” Justice Ullstein said quietly. “And never before quite like this.”

  To the triumphant blarings of Justice NOW! over the car radio—news of the rally seemed to be everywhere, aided by paid invitations to attend which were repeated every half hour, apparently nationwide—Tay drove slowly home to Georgetown late in the sweltering afternoon. The conference had broken for lunch, resumed for three more hours while they went over the last few remaining cases and items of Court housekeeping that had to be disposed of before adjournment. They were reminded that work would be flowing to them, as it always did, all summer long during their so-called “vacation.”