by Allen Drury
“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 dir
ection 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 …
“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.
