by Allen Drury
And slammed out again and started jogging along the lane toward the deserted roadway in the gathering dusk.
“Yes, sir,” she said thoughtfully as she stepped to the window and watched him go. “Yes, sir!”
***
Chapter 4
In Washington, too, the long twilight began, and past the stately front entrance to the Supreme Court the stream of home-going cars passed steadily on their way to Maryland and Virginia. Skillful lighting illuminated the great white building so that its front portico seemed to glow from within. Along the main floor, obscured by trees and shrubbery, other lights burned. All of the Justices and their staffs were still at work. The day of Taylor Barbour’s nomination was drawing to a close. In the chambers of the Chief Justice, following the pleasant custom he had established soon after his appointment five years ago, he and such brethren as wished to were gathered to hail the coming of the night with whatever potion pleased them.
Duncan Elphinstone, who had always been a very light drinker, was holding a glass of white wine, as were Mary-Hannah McIntosh and Ray Ullstein. Wally Flyte and Rupert Hemmelsford, veterans of innumerable similar sessions in the Senate, were both drinking bourbon and water. Moss Pomeroy was sipping a vodka and tonic, Hughie Demsted the same, Clem Wallenberg a martini. They had just filled their glasses. Turning to one another with mock solemnity, they joined the Chief in their invariable toast, originally proposed by Justice Flyte in a characteristically irreverent moment:
“To the Honorable the Supreme Court and the Honorable Us!”
“Moss,” Hughie Demsted said, “tell us about your buddy Barbour. What can we expect?”
Moss looked thoughtful for a moment as they all settled down on chairs and sofas and studied him expectantly.
“W—ell,” he began slowly. “I first met Taylor Barbour in the library at Harvard Law School just about”—his eyes narrowed as he calculated—“twenty-four years ago this very day. Or maybe yesterday, I’m not quite sure. Anyway, a long time ago. We racked up positively brilliant grades together and we scoured the eastern seaboard for young ladies. You all know his general record—”
“I do,” Justice Hemmelsford said, “and it’s too damned liberal for me. But I will say he’s a good lawyer.”
“He is that,” Justice Demsted agreed, “and personally, I find his liberal record quite acceptable.”
“You would,” Rupert Hemmelsford said. “All you young fellows are alike.”
“I don’t see Moss winning any liberal ratings,” Hughie demurred with a grin.
“I try,” Moss said. “I try. Anyway, you know that his record is liberal, that in private practice he got away from corporate law and got more and more deeply involved in social causes, and that finally that brought him to the favorable attention of our great co-worker in the White House, who thereupon appointed him an Assistant Attorney General and then Solicitor General, which meant that he spent most of his time up here arguing the government’s side. I defer to my elders as to how good he was at that.”
“I thought he was very cogent,” the Chief said. “Very well informed, and well prepared.”
“Very effective as an advocate,” Ray Ullstein agreed. Wally Flyte nodded.
“A damned good speaker. He can be very powerful when he wants to be.”
“He impresses me as being very sincere in what he believes,” Mary-Hannah said.
“And I’m not?” Justice Hemmelsford demanded in mock indignation. “Why, Justice McIntosh! What a thing to say about a brother!” And his eyebrows twitched and blinked and he gave her a sidelong, amiable leer. She laughed.
“Rupert, you old fraud, of course you’re sincere. Sometimes you’re more sincere than sincere. That’s why I always tremble when I find we’re on opposite sides of something. I expect to be decimated by one of those zinging minority opinions you hand down. Positively scathing!”
“The fact that I am in the minority so often says something I don’t like too well about this Court,” Rupe Hemmelsford observed seriously. “I think there’s entirely too much of this five-to-four business.”
“You wouldn’t mind if it were five to four your way, Rupe,” Justice Demsted remarked. “So stop the crocodile tears.”
“Actually,” Duncan Elphinstone said thoughtfully, “it would please me, too, if we could find a little more unanimity these days on some things. I agree with Rupe, we’re very much a five-to-four Court right now; one man—or woman—can swing it a little too easily, it seems to me. Maybe it’s just foolish personal pride on my part, but once in a while I’d like to see ‘the Elphinstone Court’ really agree on something. Now,” he added in a tone so unconsciously wistful that they all looked amused, “I suppose Taylor Barbour will bring in one more discordant note.”
“One more liberal note,” Justice Wallenberg said approvingly.
“One more radical note,” Justice Hemmelsford responded gloomily.
“Oh, come on, now,” Justice Pomeroy objected. “One more independent and self-respecting note, to join a similar chorus from the rest of us. He’s a brilliant man, he’s a great advocate, he’s compassionate, tolerant, broad-minded and determined. What more could you ask?”
“God!” Rupert Hemmelsford snorted. “Do we need any more determined people on this Court? That’s half the trouble now.”
“Personally—” Justice Ullstein said quietly, and because he so rarely spoke up to assert himself about anything, saving that for his incisive, clear-cut and powerful opinions from the Bench, they all turned to him respectfully. “Personally, I think it is well that the diversity of the Court is going to be maintained. I know the Chief would like us to be more unanimous. I suppose any Chief Justice would like to have his Court speak with one voice, as John Marshall often managed to persuade his to do. But I’m afraid it won’t work now as it did then. Still, I should like to see more unanimity because I should like to see more consistency. I think consistency is the key to the law; as well, I might add, as the key to the Court’s continuing strength as a co-equal branch of the government.
“Some of us can still remember World War II days when Joseph Stalin inquired, ‘How many divisions has the Pope?’ How many divisions do we have? None, when you come right down to it. But we, like the Pope, possess a mighty army nonetheless, for our strength rests on the willing and freely accorded acceptance of a free and democratic people. But that is all it rests on. John Marshall virtually made the Court out of whole cloth, single-handedly and over the furious opposition of his second cousin, Thomas Jefferson, who fought him all the way. He succeeded and so here we are. But if we are not consistent, if we sway too much with each passing wind, if we are divided too often and for too long, then our strength wavers and we are by that diminished.
“I hope our new Justice may aid us to find a more generally acceptable ground among our differing opinions. I welcome his coming.”
“Hear, hear,” Hughie Demsted said, and all, even Justice Wallenberg in a rather grudging way, gave Justice Ullstein a little round of friendly applause, as they sometimes did when he delivered one of his rare personal pronouncements.
“He may do that,” Moss Pomeroy said, “though actually we all know that he’s going to go with the liberal side, which will just guarantee more five-to-fours. But, that’s life.” He uttered their closing formula. “Another, anyone?”
“Not I, thanks,” Hughie said. “It’s late and I’ve got to run. We’ve got guests coming for dinner and Kate will never forgive me.”
“I, too,” Mary-Hannah said. “Can you give me a ride to Watergate, Hughie?”
“With pleasure. Anyone else need one?”
“I’m staying to do a little more work,” Wally Flyte said, and several others, including the Chief Justice, said the same. They parted with friendly good-byes. By tacit agreement it had long ago been decided that no one would take a second drink. Their pleasant little ritual simply gave whoever was free, and wanted to, a chance to meet at the end of the day—exchange news and vi
ews on whatever might interest them—relax together for a few minutes before going home or out into the nighttime social Washington—become more friendly with one another.
As he bade them all good night and returned to his own big desk to consume a hasty cup of soup and a hamburger, reopen the briefs on Steiner v. Oregon, up for certiorari from the Ninth Circuit Court of Appeals, and start working on into the night, the Chief congratulated himself once again that what they had unanimously christened “The Certiorari Club” had been a good inspiration on his part. The Elphinstone Court was not as unified as he would have liked but it was a friendly Court in contrast to some in the not so distant past which had housed real feuds among the Justices. He liked that and prided himself upon it. He had no doubt that Taylor Barbour would fit into it, as a person, very well.
Before getting to work again, he decided to go out for a moment to the Great Hall of the Court and, as he liked to put it, “restore myself.” There in the huge echoing marble foyer lined with busts of former Chief Justices, his habit was to stand off to the side in a niche beside one of his predecessors and, turning toward the oaken doors of the Court Chamber at the far end, simply surrender himself for a moment to the past and to the awesome majesty of the law which he and his fellow Justices each in their time embodied. He had been on the Court nine years now, Chief Justice for five, and it still was a thrill to him to cross the broad marble esplanade on First Street Northeast, climb slowly—at seventy it was becoming slower—the fifty-three marble steps to the oval marble esplanade in front of the building, go through the pair of six-ton bronze doors past the guards and the admonitory sign SILENCE, and enter this vast white chamber where tourists, law clerks, building staff, guards, newsmen, lawyers, Justices crisscrossed as they went about the business of the Court.
There was rarely an hour of the day when the Great Hall was not busy. There was always life there: the life of the law, to which he was devoted, and from whose contemplation he always drew renewed strength.
So it was on this night when the Court was about to be complete again with its ninth Justice. He looked forward with real anticipation to the addition of Taylor Barbour. The Court, as Ray Ullstein had truly said, rested on the freely given acceptance of a democratic people: over and above his other responsibilities and burdens, each Justice carried the preservation of that acceptance on his shoulders. Anything that showed undue dissension, anything that broke the solemnity of the law, anything that reduced the dignity and the stature of the institution had the potential of weakening in some measure that acceptance.
His great predecessor John Marshall, fourth Chief Justice and virtually single-handed creator of the Court as the country knew it today, had always been extremely jealous of the reputation and standing of the Court. He had fought his cousin Jefferson to a standstill on the issue of the Court’s right to determine the constitutionality of the laws, and had won; and nearly all Justices from the early days of the struggling Republic on through the gathering storm of civil war, right on down to today’s violence-plagued, crime-ridden nation, had been vividly conscious of that responsibility. He was confident Tay would bear it well.
The challenges had been tough before, Edmund Duncan Elphinstone reflected now, but perhaps no tougher, if as tough, as those the Court faced today. Very soon now, in some form or other, the issue of violence would come up to them. And it was very apt to be, as they had discussed with foreboding this morning, not only the violence of criminal against victim but the counter-violence of an enraged citizenry against the criminal. Then might come testings he did not really want to think about at this moment. But he knew that sooner or later he must. And so must they all.
He sighed heavily, completely unconscious of anyone around.
“Good night, Chief!” someone called cheerfully. He came out of his reverie to see a bright-faced, rosy-cheeked young woman in her mid-twenties hurrying by with a briefcase on her way out of the building.
“Good night, counsel,” he said. “I hope you’ve had a good day.”
“Busy,” she called back over her shoulder. “I work for Justice Ullstein. Busy! But I’ll survive!”
“Good girl!” he called after her with a smile. “So will we all.” Adding to himself more grimly than he had realized he felt: I hope.
He waved good night to the guards, turned to the right at the end of the now almost deserted Great Hall and made his way along the corridor that ran parallel to and around the Chamber, and so to his offices and the offices of the other Justices beyond. He had a good crew with which to navigate the heavy seas that appeared to lie ahead. The bequests of three very different Presidents, they were a highly individual and in some ways, he supposed, quirky bunch. Yet all were brilliant lawyers, dedicated public servants, devoted defenders of the law and the Constitution as each saw it.
His mind ran over them as he crossed his silent office and went into the tiny kitchen that had been installed by Chief Justice Warren Burger, who loved to cook and often prepared lunch for himself or an occasional guest or two. He opened a can of tomato soup, put it in a pan and set it to heat; took two frozen hamburger patties out of the small refrigerator, unwrapped them, put them in the oven; went into the bathroom and made himself ready for the sumptuous meal that always worried Birdie, dining alone at home in Georgetown, but which he always found quite enough on the frequent nights when he stayed late working. In the mirror a wise, wrinkled, kindly little face topped by a startling upright shock of snow-white hair looked back at him with an analytical expression.
“Birdie,” he had demanded not long ago after reading a profile of himself in the New York Times, “do I look ‘monkey-faced’? Am I a ‘Roger B. Taney type’? Do I look as though I might have been ‘weaned on a pickle’? Do I, now, really?”
“Of course not, dear,” she had replied promptly, but with a gentle little chuckle that caused him to give her a sharp look before starting to smile himself. “At least, not entirely. Your expression always indicates that it was probably a sweet pickle.”
“Now, how,” he demanded, “is that supposed to help my wounded ego?”
“Well,” said his companion of forty-five years with the amiable candor he always prized and always relied upon, “you must admit you aren’t a blond, six-foot Viking. You are rather small, you know, which of course is fine with me, otherwise, since I’m also five feet four, I probably wouldn’t ever have married you. And you aren’t any Rudolph Valentino, which is also fine with me, because that means I haven’t had to worry about you—too much—with other women. And you do rather resemble Chief Justice Taney, a bit. But, then, not all you Chief Justices can look like Charles Evans Hughes, after all. There was only one of him.”
“If I ever heard a quibbling, evasive, pettifogging, question-dodging answer,” he said with a humorous indignation, “that’s it. You ought to be a lawyer.”
“Oh, heavens,” she said, tapping him lightly on the cheek. “It’s bad enough being married to one—and the most famous one of all, at that. Anyway, dear, the children and I love you. Your face has character, and that’s good enough for us.”
“A truly flattering and ego-building commendation,” he remarked. “I shall treasure it.”
And, he thought, he probably did, because he had to admit he wasn’t the handsomest man in the world. Sometimes he rather wished he were a little more so, particularly when the Court had its annual picture taken and here stood this wizened—yes, at seventy he supposed he could be honest and say “wizened,” at least to himself—little figure in the middle, flanked by eight taller associates. But he had dignity, he would say that; nobody could summon up the awe of the law more effectively than he when he wanted to, as many an incompetent pleader, called sternly to task for rambling on too long before the Bench, could testify.
“When the Chief lays down the law,” they said around the Court, “everybody snaps to.”
And everybody did, he thought with some satisfaction, though he didn’t mean to be too arbitrary about i
t. But he did respect the procedures of the Court, and he desired others to; and since he had the authority, he exercised it.
“Large certainty resideth in that small frame,” Mary-Hannah once remarked in a humorous imitation of Shakespeare; and they all recognized the fact and accepted it without much chafing.
He ruled the building with an iron, if comfortable, hand, being sometimes more concerned, some outsiders charged, with housekeeping details than he was with cases. This was deceptive, for he had a mind that missed nothing and was “on top of every case before the Court, all the time,” as Clement Wallenberg had admitted grudgingly not too long ago. When he became C.J. he found in the history and accoutrements of the Court a pleasant diversion from the legal problems that often involved him in sharp contention—although, in general, he tried to play an ameliorating part in the constantly shifting alliances that had of late produced some of the most closely decided verdicts in the country’s history.
Back in his office as his soup came to a boil, the hamburgers sizzled to exactly the right point (he was not such a bad cook himself, if truth were known), he reflected on what he referred to privately to Birdie as “my little brood.” He was disturbed by their frequent lack of unanimity, but as characters and colleagues he liked them all. There was his senior Associate, Richard Waldo Flyte of Illinois. Heavy—in fact, as he himself put it bluntly, fat—with a round, owllike face and a portentous manner broken by frequent gleams of humor, he never took himself quite as seriously as his outward aspect might indicate to the uninitiated, and was always a help in smoothing over personal animosities. His appointment, as Seab Cooley had remarked one day in the Senate Majority cloakroom, had made him as happy as a whale in aspic. His whole instinct from Senate days was to work with people as harmoniously as possible, and he could always be counted on for the friendly comment that encouraged the reluctant, the jest that eased the way. The Chief had been grateful for this on many occasions.