Decision

by Allen Drury

  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.

  He felt by now that he knew him pretty well and, like Moss, did not pressure him overmuch.

  “I wonder if you would be offended if I suggested that possibly you could let me know what you’ve decided as soon as you have decided it? I can then tell the others and assign someone to write the majority opinion—as the Chief does, you know, when he is in the majority—if I am in the majority—instead of reconvening a formal conference to hear your views. If you want us to meet formally, of course we will, but I thought maybe in the interests of saving time…”

  Tay thought for a moment, then said slowly, “I don’t see why not.”

  “Fine!” the Chief said with a satisfaction that seemed a little greater than the occasion warranted. “That’s just fine! Then you’ll let me know as soon as—”

  “I can’t promise how soon that will be,” he reminded. “It’s only eight p.m., at this point.”

  “I’m going home pretty soon,” Duncan Elphinstone said, “but if you reach a decision anytime up to midnight or even one a.m., call me and I’ll pass the word. And thank you.”

  “I will,” Tay said, “and you’re welcome.”

  And hung u
p, a little puzzled. He didn’t quite see what Dunc was driving at, though for a moment an uneasy suspicion crossed his mind.

  He turned back to his desk, his legal notepad and his tortuous broodings that always came back to the same points. In front of him lay five other memos to go with Clem’s, and with Moss’ and the Chief’s verbal communications. The split was still four to four. No miracle had occurred. The burden of final decision still lay on him.

  Around 10 p.m. he thought he had reached a conclusion, began tentatively to draft an opinion. Within fifteen minutes he had torn it into fine fragments that he pitched into his wastebasket, and began another. Twenty minutes later that also followed.

  On the one hand stood the law. On the other stood his human feelings and emotions. He was not supposed to have them anymore, in his new eminence.

  Janie … Mary’s shy announcement, far, far back when the world was young and his wife was capable of shyness and of spontaneous, genuine, untortured love … the arrival of something tiny, red and squawling which, with some incongruity but with more accuracy than he as a new parent could then realize, reminded him of the motto of the United States: “In this year was born a new order of things” … the new order taking over their lives, their household, their dreams and hopes for the future … becoming even more precious when Mary refused to have more … growing before they knew it into a precocious little toddler, blond and chubby, always laughing, with a gurgling chuckle that cut through his heart like a knife as he heard it again right now … passing unscathed through the standard childhood diseases, bouncing back quickly, almost always in excellent health … suddenly a schoolgirl, somewhere around seven or eight, dressed in something blue and frilly, solemnly helping her mother serve coffee and cookies to her grandparents when they came from California for a visit … reciting a poem in school, probably aged ten or eleven, stumbling, blushing, looking as though she might cry but suddenly getting a second wind and going on triumphantly to the end, with a happy beam at her parents, both of whom misted over … moving on through the school years increasingly popular, increasingly active, growing steadily prettier, growing out of gawkiness toward the promise of real beauty … beginning to develop a questioning, independent yet intensely practical mind of her own that delighted him with its frequent challenges to his own ideas, its ability to understand and handle the increasingly complicated concepts it encountered at school and at home … the first dance, the first boy, the first intimations, thrilling him and dismaying Mary, that she might follow him eventually into the law … the realization, as he and Mary drifted apart, that his daughter and his dreams, hopes and plans for her were now becoming most of what he meant when he talked proudly about “my family” … all the bright dreams, the bright laughter, the bright promise, gone—gone—into darkness and, apparently, endless night … because of “petitioner,” a word he had clung to because it served to keep at one reserve the smugly arrogant face, the savage eyes and deceptively smiling countenance of the only being in his life he had ever really, genuinely hated and would always hate, as long as breath remained: psychopath—murderer—monster … Earle Holgren … “Petitioner” …

  Janie!

  The great white temple of the law was silent and deserted in the night.

  He put his head on his arms and gave way at last to the grief he had managed to control in reasonably good order up to now.

  When the storm had passed a cold calm settled finally on his mind. Slowly and methodically he set aside his emotions, went once more point by point over everything he knew and had experienced of the law. Then he carefully placed his notes neatly at his left hand; took a fresh legal pad out of his desk and placed it squarely before him; took up a pen and began to write.

  Shortly before midnight he called the Chief and told him all that he had decided. The Chief was matter-of-fact, brief and to the point.

  “Yes, I think that is the logical way out. I believe you are doing the right thing. How soon can you write your opinion?”

  “Tomorrow, if you like.”

  “That’s too soon. It is not going to be easy.”

  “No,” he agreed with a heavy sigh. “It is not going to be easy.”

  The Elph became fatherly.

  “Go on home and get a good night’s sleep. You need it.”

  “I doubt if I’ll sleep much.”

  “You’ll be surprised. Good night.”

  Before he left chambers he made one quick call on his private line.

  “I’m glad,” she said. She, too, thought he had done the right thing.

  Half an hour later, after a quick drive through the almost entirely deserted streets past all the mighty monuments and buildings of his native land, he was home and in bed. He had just time to be surprised that his mind was no longer in turmoil when all thought ceased and he fell instantly into deep, exhausted, dreamless sleep.

  HOLGREN DECISION DUE MONDAY. HIGH COURT SETS SPECIAL SESSION TO DECIDE FATE OF ALLEGED KILLER. RIVAL LAWYERS CONFIDENT. JUSTICE NOW! RESUMES 24-HOUR VIGIL. “EXTREME SECURITY” PLANNED FOR MEETING.

  ***

  Chapter 8

  Again the steamy heat—the leaden sky—the threat of thunderstorm later—the picket line stretching all around the building—the metropolitan police and the Army on guard outside—the Court’s own security force alert and nervous inside. Very few were allowed to pass through the great bronze doors and the ground-floor entrance this day: regular staff, law clerks, media. All others were barred.

  Around the Court, stretching out from the picket line on all sides to the adjacent streets, an enormous crowd shoved and jostled. Their unceasing gabble rose now and again to crescendo as slogans, exhortations and shouts, unintelligible but clearly menacing to the Court, burst out. Facing the pickets, backs to the building, rifles at rest but pointedly ready, a line of soldiers, sent up by the Pentagon at the President’s order, stood impassively sweating in the rising heat.

  “Aren’t we overdoing it a bit?” Justice Flyte inquired of The Elph when they arrived in the Chiefs limousine shortly after 9 a.m. and were hurried in the garage entrance. A quick look around convinced him that they were not. All the makings of chaos were present. In a way the Court had not known for many decades, it was in the eye of the storm.

  In the Robing Room a few moments later everyone was sober and grim: no jokes, no laughter, no old, accustomed ease. Even Wally was serious now. The traditional handshake held an extra fervor, a deep and almost desperate pressure, a feeling of “We’re all in this together”—a feeling that they just might not come out of it this time … although of course they knew they would.

  They were the Court.

  They had to.

  It would be an unthinkable blow to America if they did not.

  But it was a grim-faced eight men and a woman who stepped forward through the red velvet curtains when the Marshal cried his “Oyez! Oyez!” The chamber was full to overflowing. In every last inch of space members of the media from all over the world were crowded. The room had been scoured for bombs inch by inch for two solid hours. Everyone who entered had passed through a metal detector and been thoroughly searched. All precautions would seem to have been taken. But it was a strange time, in all lands: and one never knew.

  “We are armored in the law,” the Chief had reminded, in a voice more serious than joking, when the ten o’clock bell rang and they began to move forward to their chairs. They told themselves this would be enough. But one never knew.

  When all in the chamber were seated, the Justices stared out with an impassivity a little more set and determined than usual upon the restlessly stirring media. The Chief began to speak in a quiet, almost conversational tone.

  “The public information officer informs me that there has been considerable disgruntlement among our friends of the media because on this occasion we have not published the opinions of the Court”—the plural was hastily jotted and underlined on several hundred notepads—“simultaneously with their delivery. Nor are we pu
blishing the customary ‘syllabus,’ as it has come to be known in recent years, which is a headnote containing a summation of the case and opinions for the easy reference, understanding and convenience of the media.

  “The custom of simultaneous publication has been abandoned on this occasion after consultation among all members of the Court. Although we are not agreed on everything about this case”—he smiled slightly and in his audience the Associated Press murmured to UPI, “Oh, come on! For Christ’s sake stop being cute and get on with it!”—“we were agreed that the utmost of discretion must be exercised to make sure that no advance intimation of our decision should reach the public. The reasons for this,” he said with a sudden sharp glance at Regard, sitting attentively in the front row, “are obvious in what you all passed through outside on your way in here.

  “In this case, the vote stood four to four at the conclusion of conference. The deciding vote was cast, and the majority opinion—at his own request—will be delivered by”—he paused and the tension shot up a hundredfold—“Justice Barbour.”

  There was an instant expulsion of pent-up breath, an excited stirring and whispering, “a quiet tumult,” as Ray Ullstein had once put it to his seatmate Rupert Hemmelsford on another tense Court occasion. Decorum held, but only just.

  Within the heart of the junior member quiet tumult also prevailed. But though it cost him more than anyone but Cathy, possibly, would ever know, he forced his voice to its customary grave and measured level and began to read, looking up from time to time for emphasis, not seeing anything in particular when he did … just history, perhaps—and himself, caught in its endless ironic twistings.

  He began in straight narrative fashion, having discovered from many perusals that there is no set pattern for opinions in the Court, style and manner of presentation being as diverse as the personalities of the Justices who deliver them. After reviewing the circumstances of Earle’s arrest, the trial, the verdict and the television proposal, he came to the nub of it: