Decision

by Allen Drury

  “Well: the majority has canceled the death penalty in this case, but it has done so by indirection. It has not met it head-on—”

  (“What does that matter,” the new young lady from the Des Moines Register whispered anxiously to her companions, “when they’ve done it?” “Hush!” one of her older colleagues ordered severely and she never did find out.)

  “—it has not seized the opportunity to condemn it as it should be condemned. It has evaded the issue.

  “Nor has the majority addressed itself to the broader constitutional aspects, the nature of the trial, the improper place of public pressure, the monstrosity, I repeat once again, of the television proposal. We cannot agree with the majority. In our opinion the case should have been remanded back to South Carolina for re-hearing. The trial should have been vacated, given a really honest and objective jury, kept genuinely free from the hysterical stunts of this so-called Justice NOW! that besmirches America with its rabid ravings and demonstrations and—and—” he spat out the word, “rallies designed to try to twist the laws and blackmail this Court into becoming a star chamber!…

  “I am joined in this opinion by my Sister McIntosh and my Brethren Ullstein and Demsted.”

  He paused; blinked; thought for a moment; concluded in a quieter, more reasonable tone.

  “I am not sure all of my colleagues of the minority join me in some of my references to the majority or in some of my language. Now and again, sometimes, I get a little carried away: a little harsh, perhaps. I don’t really mean to, but I feel these things. I feel these things! They are important to me … as, I suppose,” he acknowledged with a glance along both sides of the bench that brought wry but basically friendly nods from all but Moss, still angry, and Tay, still staring far away, “they are important to all of us. They have to be.”

  And he sat back as the Chief looked down at the media, smiled and said,

  “Now, ladies and gentlemen. All opinions, of which there are the two major and seven dissenting or concurring in some degree, are available to you in the press room. The Court stands adjourned until the first Monday in October.”

  ***

  BOOK FIVE

  ***

  Chapter 1

  The Court had spoken. The media split between metropolitan and small-town along easily predictable lines.

  “A sharply divided Court has stood the Constitution on its head,” remarked the New York Times. “Justice Barbour’s opinion is very clever, but it is a clear evasion of responsibility.”

  “There is equal justice under law for somebody,” observed the New York Times, “but apparently not for Earle Holgren.”

  “Justice has been rendered fittingly on a convicted murderer,” said the Porterville, California, Recorder.

  “The Court was wise to adhere to the law and skip the diversions that might have been lavished on the death penalty and the television aspect,” agreed the Fort Myers, Florida, News-Press.

  And so it went across the country, and, indeed, across the world.

  Television’s general emphasis was anti-Court, since from neither majority nor minority had it really received any consolation. “Where does this leave the networks?” CBS’ sage-in-residence inquired, looking into the camera with an earnestly offended expression. Echo answered, “Where?” and from the offices of Eldridge, Muggridge, Pockthwaite and Thistle came only silence.

  Neither the major media nor Justice NOW! were satisfied with the performance of the Court’s newest member. Critics in the media were savage in their condemnation of his “wishy-washy reasoning,” his “almost cowardly evasion of responsibility,” his “willingness to allow an understandable human repugnance toward the petitioner to overcome a lifetime’s dedication to the finest standards of the law.”

  “A fine reputation (so averred the Times) has been shattered and a long shadow, from which he will be a long time emerging, has been cast over his value to the Court.”

  Justice NOW! was more direct. The first reporter who emerged from the Court after the decision was bombarded with questions. As soon as he had given his answers an ominous angry chant began to rise:

  “Down with the Court!”

  And on alternate beats, heavier and more insistent:

  “DOWN WITH BARBOUR!”

  By the time the Justices departed half an hour later via the garage entrance, the hostility had become organized. Banners had materialized and numerous straw figures labeled “The Court” and “Two-Faced Tay” suddenly dangled together from lampposts around the building.

  It was not comforting for the Justices to see, as their cars were sped swiftly away in the midst of police motorcycle escorts, that many of the figures had already been ignited and were beginning to send up heavy puffs of smoke; nor to hear on the car radio as their convoys took them fast but skillfully through the noonday traffic to their respective homes, that Justice NOW! was already out with a strongly hostile statement.

  “Justice NOW! cannot condemn too strongly,” its concluding sentences read, “the way in which the Supreme Court of the United States has chosen to override the just conviction and sentencing of a murderous criminal. And we specifically deplore and condemn the part played by Justice Taylor Barbour, who should know, if anyone does, how deserved and how right were the conviction, the death penalty and the television proposal for the man who destroyed his daughter.”

  “Poor Tay,” Justice Ullstein remarked to his passengers Mary-Hannah and Hughie. “He can’t win.”

  “Clem would probably say he doesn’t deserve to,” Hughie said. “I was disappointed in him myself, to tell you the truth. But I can see his reasoning. I think.”

  “He has to live with it,” Mary-Hannah observed. “I don’t envy him. It will take him a while.”

  He had already learned that it would take him a while, though his sister and his brethren could not know it. When he left the Robing Room and returned briefly to his chambers before leaving the building, he found a lonely figure waiting for him in the corridor, otherwise deserted save for a guard seated in his usual position far along toward the center of the hallway in front of Rupert Hemmelsford’s door. No one else was in its empty echoing marble expanse.

  Her face was drawn and stricken; she looked, as Regard had remarked in what now seemed a long-ago moment when they had seen her waiting at the hospital in Columbia, like “a bedraggled little swamp-hen of a gal.” But her eyes were blazing with anger, her expression was one of cold contempt, her voice trembled with a consuming and implacable rage.

  “How could you!” she cried in a tense whisper, modulated enough so the guard would not hear but carrying clearly to Tay as he approached. “How could you? How could you betray everything you’ve always stood for all your life? How could you betray everybody who believes in you? How could you betray us? How could you be such a clever coward? How could you?”

  “Miss Donnelson,” he said, trying to keep his own voice low and calm, though suddenly all the accumulated tensions of recent hours—his desperate unhappiness for Janie—his hatred for Earle Holgren—his terrible struggle with his conscience—his innermost, devastating thought that perhaps in many eyes whose respect he valued he was only a “clever coward”—seemed to boil over inside him and threaten a rage as explosive and vindictive as her own. “I do not care to defend my decision to you or to anyone. I have rendered it, I have been supported by a majority of the Court. The matter is closed. Now please get out of my way and let me enter my office. Get out of my way.”

  “I won’t!” she cried, louder now, spreading her arms across his door. Down the corridor the guard, aroused from his customary amiable lethargy, rose and began to come toward them. “I won’t! You owe me an explanation, Taylor Barbour! You owe the whole world an explanation! The great liberal! The great lover of mankind! The great, compassionate—”

  “Miss Donnelson,” he said, his own voice rising sharply in spite of his determination to hold it down, “go back to your murderer and leave me alone! You ought to be t
hankful we left him alive, monster that he is. He deserved nothing from us—nothing from me—nothing! And I let him live. If you haven’t got sufficient gratitude to realize that—”

  “Gratitude for what?” she demanded. “Gratitude for your ducking the death penalty? Gratitude for your betraying yourself? Gratitude for betraying all who believe in you? Gratitude for—”

  “Justice,” the guard said, sounding tough—Supreme Court guards had never had to sound tough up to these last few days, the pace was pretty slow most times, but he found he rather enjoyed it, actually—“Justice, do you want me to remove this woman? Shall I put her in jail?”

  “Not in jail,” he said, icily calm as she became more frantic. “All she’s doing is talking. It’s still a free country. Just remove her from my door and put her out of the Court. That will be sufficient.”

  “You’ll see if all I’m doing is talk!” she screamed with a sudden violence that startled them. “You’ll see! You’ll see!”

  “Guard!” he said sharply.

  “Yes, sir!” the guard said hastily, grabbing her arm and yanking her, still screaming, obscene and unintelligible now, down the hall. “Get along out of here, now, you!”

  And in a moment they were gone, her voice screeching quickly away into silence; and the corridor was deserted and still again. He stood absolutely rigid for several moments calming his whirling thoughts, resting his hand on his door as though to protect it from some mysterious, unexpected assault; presently tried it, found it locked, unlocked it, opened it and went in. His secretary and law clerks, he was thankful to note, had gone to lunch. The office was as silent and deserted as the hall. He walked through to his inner chamber, tossed his copy of the majority opinion on his desk, started to pick up the latest appeals for certiorari that he would take home to begin his work for the summer; paused suddenly and returned to his desk.

  Picking up the majority opinion again he wrote on it in a firm hand that did not tremble, though he was still breathing heavily:

  “First opinion delivered by me in the Supreme Court of the United States”; dated it, signed it, replaced it, neatly this time, on his desk.

  “I’ll have to send that to the Library of Congress for my ‘Court papers,’” he said to the empty room with a strange ironic bitterness he couldn’t quite understand. “Probably won’t be anything else worth saving.”

  Then he too left the Court and went, in his police-escorted car, past the jeering crowd and the burning effigies of “The Court” and “Two-Faced Tay,” back to the house in Georgetown and the call that he knew would inevitably soon come.

  When it did it was similar in tone and general thrust to the berating he had just received. He took very little of it before he put it, finally and forever, to rest.

  “I can’t seem to satisfy anyone, can I, Mary?” he inquired with a wryness that only seemed to provoke her further.

  “No, you cannot!” she said with a harsh anger she could barely control. “How you could be such a weakling as to sidestep the death penalty I’ll never know! How you could be such a clever coward when your own daughter lies ruined forever by that monster! Why you didn’t—”

  “Mary,” he interrupted, voice calm and certain at last because the eerie repetition of “clever coward” did it, suddenly everything fell into place. “I want a divorce. Now.”

  “I’m not going to give you one!”

  “Then I’m going to sue for one,” he said calmly.

  “On what grounds? Have I been a poor wife? Have I had a sneaky little affair? Have I betrayed myself and my own daughter with a cowardly opinion from the Supreme Court—”

  “That’s not a ground for divorce,” he said with a ghastly sort of humor, “and the rest you can’t prove. I’ll sue you, Mary, and I’ll win somehow, if it takes me all my money and the rest of my life. So make up your mind to a hell of a messy public fight, or give it to me. Yes or no.”

  There was silence for a time, frozen and complete. She did not sob or cry or outwardly indicate emotion, though her voice when she spoke did tremble a little. He supposed that somewhere, in some part of her being that still possibly treasured him or her earliest memories of him, it did hurt her; as, to his profound surprise now that it was actually here, he found it hurting him. Not enough to stop him, however. It was far too late for that.

  “What about Janie?” she asked at last.

  “She’ll be taken care of. That’s our joint responsibility, now and always.”

  “I can have her, then.”

  “Mary,” he protested, “you don’t know what you’re taking on. I beg of you, please don’t start that again. She’ll be so much better off in a place that’s really equipped to take care of her. Really she will.”

  “I’m not going to have her in an institution—”

  He sighed.

  “I’m not going to argue that with you now. Well have to work it out as we go along. For now, the question is divorce. Do I get it without a battle or do I have to make a public fight for it?”

  Again there was a long pause. Finally she too sighed, a deep, dragging, infinitely weary sound, and surprised him utterly.

  “If it will really make you happy, Tay—”

  “It will,” thinking, astounded, Whatever made her change her mind and give in so easily? And telling himself quickly, Don’t ask, don’t hesitate, accept it and be thankful, fast. He repeated firmly, “It will.”

  “Then I suppose,” she said in a remote tone he mistook for disinterest, “it will have to make me happy, too.”

  “Thank you, Mary,” he said gravely. “I think you’ll find it will.”

  “I hope so,” she said; and added in an odd forlorn little voice, “There never has been a divorce in my family.”

  “Mine, either.”

  It was only then that she began, at last, to cry, awkward, agonized, wracking sounds that seemed to come from the depths of her being.

  But it was too late now.

  A few minutes later, while he was puttering about in the kitchen getting himself a cup of soup he didn’t really feel like eating, the phone rang again. He knew who it would be but the last thing he felt like now was talking to her or seeing her. He tried not to sound brusque when he answered, but must have because she responded quickly in an alarmed tone,

  “What’s the matter?”

  “I’m sorry,” he said. “I’m just tired, I guess. It’s been a big day.”

  “I think you did the right thing,” she said, accepting his explanation at once without comment. “It was the best possible compromise, it seems to me; the only thing you could do, under the circumstances.”

  “I didn’t strike down the death penalty, though,” he said; and must have revealed uncertainty because she replied immediately,

  “Nonsense! Why did you have to? You set it aside, didn’t you? You vacated it. And you still put Holgren away where he can’t bother anybody anymore. What more could any reasonable person ask?”

  “Nobody’s reasonable about this case,” he said. “Maybe I wasn’t myself.”

  “The majority went with you,” she objected stoutly. “What are you brooding about?”

  “I’m not ‘brooding.’”

  “It certainly sounds that way to me.”

  “Well, I’m not,” he said, sounding a little amused and more relaxed.

  “And the majority did go with you, right?”

  “Oh, yes, they were glad to do so. The Elph lined them up. Anyway, they wanted to. They were as relieved as I was to find a way out—a middle ground. That’s always best for the Court and the country, if it can be done.”

  “So why are you upset? I don’t get it.”

  “A lot of things I want to tell you about, but not—right now.”

  “Oh,” she said, trying not to sound disappointed, not succeeding. “I was hoping you would come over for dinner tonight. I’ve parked the kids with friends of mine in Alexandria and I thought now that it’s all over, we could—”

  �
��I’m sorry,” he said; and repeated with a sudden urgency—“I am sorry. But for a while—a few hours, anyway—I think maybe—if you can understand and forgive me—I just want to be alone. I just want to think about it some more and come to terms with myself about it.”

  “I thought you’d done that when you made your decision,” she said, but gently.

  “I did but—I didn’t. I need to be at peace with myself. Can you understand that?”

  “I understand,” she said, and he felt that she wasn’t just saying so, she really did. “I wish I were able to help you, but I guess maybe—I can’t. That makes me unhappy, because it destroys part of my concept of what I can be to you, but if that’s the way it is, then—that’s the way it is, I guess.”

  “I’m sorry,” he said humbly. “I need you—I want you—I love you. This is just something where nobody can help me but myself, I’m afraid. I’ll be over just as soon as I can, if—if you still want me.”

  “Try me,” she said with a shaky little laugh. “Just try me … All right then, Mr. Justice; I love you too. Just give a holler: I’ll be standing by. Fair enough? Just don’t be too long.”

  “I won’t,” he promised.

  “Good. As long as I know you’ll be here eventually, I guess I can wait.”

  “I’ll be there. And it won’t be ‘eventually,’ either.”

  “Tomorrow night?” she asked, trying to make it light, not quite succeeding.

  “Tomorrow night,” he said firmly. “And that’s for sure.”

  “I’ll hold you to that,” she said, still lightly but with a desperate earnestness underneath that she could not quite conceal. “So don’t let me down.”

  “I won’t let you down,” he said gravely. “I could never do that.”

  But when they had hung up he sat for a long time staring out unseeing upon the lush overpowering garden.

  You can have your divorce, said the second voice.

  I love you, said the third.