Come Nineveh, Come Tyre: The Presidency of Edward M. Jason

by Allen Drury

  “It is exactly for that reason, Mr. Chief Justice,” said George Henry Wattersill, “that I do not want to do less than justice to the govern—to the Administration’s case. This is too important a matter. Too many great imponderables of American stability are involved. Too many citizens are directly concerned in the outcome.”

  “All citizens, I should think,” said Justice Cappola in the drawl of his native Dallas. The Attorney General accepted the amendment with a grave nod.

  “All citizens.… Petitioners come here, your honors, on the spur of the moment, without warning, springing surprises on us, seeking apparently to catch us off balance. I shall not dwell on these aspects of it, except to say that we in the Administration are a little surprised that the Court should have accepted this move with such alacrity and set aside its regular business so expeditiously to accommodate this kind of trickery. But,” he added hastily as several Justices stirred uneasily and he thought he perhaps had gone too far, “we accept it and proceed as directed, even though it places some handicaps on our preparation.

  “However, if it please your honors, I think we can refute the arguments of petitioners almost as expeditiously as they have been made. To wit:

  “It is a fine thing, Mr. Chief Justice and your honors—” his expression and voice both became indignant—“for the very man who originally proposed this legislation to come here and argue that it is ‘unconstitutional per se and on its face’; that it confers ‘very vast and dangerous powers’ upon the President; that ‘its provisions are too dangerous in the wrong hands, or indeed in any hands.’ It was all very well for him to propose it when he thought it could be used upon those who were opposing his policies. Now that it is offered as a means of protecting his successor from frivolous and sinister dissent against his policies, it is another matter. Where was the Constitution six months ago when this bill was first introduced under the kindly aegis of the ex-President? In hiding, I presume!”

  “Mr. Attorney General,” Justice Davis inquired gently, “was the measure vigorously pushed by President Abbott six months ago? Did he make any real attempt to secure its passage? Did he not permit your colleague, Senator Van Ackerman, to filibuster against it, for instance? Was it not, perhaps, simply a political gesture at the time, rather than a serious proposal?”

  “I’ll answer that, your honors,” Fred Van Ackerman said, coming forward quickly to the lectern, brusquely brushing George Wattersill aside. “The individual who originally proposed this bill meant it, don’t anybody be foolish enough to think he didn’t. He wanted to stop all dissent and protest when it was directed against him. He didn’t give a—he wasn’t so worried about the Constitution then, believe me. And furthermore,” he added, and a real annoyance entered his voice, “he didn’t ‘permit’ me to filibuster the bill to death, I’ll remind this Court. He tried to stop me but he couldn’t. Oh, how he tried! But I killed it. I killed it!”

  “Then why,” the Chief Justice asked, “were you so eager to revive it? Why were you the one to reintroduce it?”

  “And why,” Tommy Davis inquired, leaning forward intently, “did you add new provisions to it which petitioners argue are unconstitutional and dangerous to the liberties of American citizens and American institutions? Provisions which were not in the original bill, provisions which petitioners are therefore perfectly justified in arguing against?”

  “Well,” Senator Van Ackerman said—and his voice was such that AP muttered to Reuters, “Oh, oh, here goes Freddy”—“well, your honor, I will tell you why I did. Because a great President is struggling desperately to save the peace of the world! Because a great President is giving us the benefit of his leadership, his vision, his idealism and his courage! Because that President needs the support of every citizen in this land in this desperate moment and because petitioner and his colleagues are leading a dangerous and yes, Mr. Chief Justice, I will even say a subversive campaign to thwart, defy and destroy the efforts of our great President for peace!”

  There was a stunned silence for a moment. Against it the distant roar of the now completely filled plaza rose and fell and rose again. Presently Madam Justice Watson ran a hand through her close-cropped gray hair, adjusted her pince-nez and leaned forward in her customary professorial manner.

  “Does counsel actually argue,” she inquired slowly, “that petitioners are being subversive in seeking relief from this Court against what they sincerely believe to be a measure dangerous to the nation? Does the Senator actually think we have reached a situation in America in which disagreement with the sitting President and his Administration is somehow … against the law?”

  “It is against this law as it now stands,” Fred Van Ackerman snapped, “and this is the law passed by Congress and signed by the President. What other law controls?”

  “The Constitution, I presume,” Justice Watson said quickly and as quickly Fred Van Ackerman replied,

  “If a majority of this Court says so!”

  “Do you think it won’t?” Justice Davis asked and Fred Van Ackerman turned on him with a contempt he made little attempt to conceal.

  “What do you think it will do, your honor? Listen!” he said abruptly, and he flung out his arm in a gesture toward the ominous rumble, now much louder outside. “Listen! There speak the American people who have elected this great President, who love this great President, who trust and believe and follow this great President! There is your final arbiter, Mr. Justice! They know where justice lies. And they won’t forget,” he added, a relish in his voice that made the blood of quite a few in the room run cold, “who is for justice this day, and who isn’t!”

  “Are you threatening this Court?” the Chief Justice demanded with a note of real anger. But it was apparent the Senator from Wyoming was past being impressed by a judicial annoyance that would in other times have intimidated any counsel before the Court He obviously believed himself to be allied with a greater intimidation now.

  “I am not threatening this Court, Mr. Chief Justice,” he said with an offhand air as he turned away to sit down again. “The American people are, and today they will not be denied.”

  “The Attorney General,” the Chief Justice said after a moment with a reasonable show of dignity, though it was apparent that he and several of his colleagues were more shaken than they would have liked to admit, “will proceed with his arguments if he has more to offer.”

  “Yes, your honor,” George Wattersill said, speaking more harshly now that Fred Van Ackerman had shown the way, “I do.

  “Petitioners—and some members of this Court who obviously have already decided to associate themselves with petitioners in spite of the obvious public sentiment noted by my colleague—seem much concerned about provisions of the Help America Act which were added after the then President failed in his attempt to impose his will upon those who disagreed with him. The ex-President—and those members of this Court who seem to wish to associate themselves with him—make much of alleged unconstitutionality, supposed censorship, presumed dictatorial control over American citizens and institutions.

  “Nothing, Mr. Chief Justice and your honors,” he said with a sudden profound gravity, “could be further from the minds of this Administration. Other administrations may have had such sinister purposes in mind when they proposed their version of this bill, but not this one, your honors. Not this one. These are exaggerated fears, unfounded and ungrounded. The purpose is solely and exclusively to secure for this Administration the climate of calm and cooperation that we must have if the President is to succeed in his search for peace—that search for whose success not only his own nation, but all mankind, joins in prayer.”

  “Mr. Attorney General,” Tommy Davis asked with a certain quiet but persistent tenacity, “when you speak of ‘calm and cooperation,’ is that out there—” and he too gestured to the thunder beyond the doors—“the sort of thing you have in mind?”

  “It is not,” George Wattersill said quickly, “but it is the sort of thing that
will speedily replace calm and cooperation if this Administration is not given the means of securing calm and cooperation. I suggest your honor consider that!”

  “Oh, I am considering it,” Justice Davis said, sounding not at all abashed, though several of his colleagues appeared to be, by the harshness of the Attorney General’s tone. “I am considering that very carefully, I will say to counsel. And I must confess,” he added, peering slowly about the silent chamber like an earnest little owl, “that it does not impress me. Not one little bit.”

  “Well, your honors,” George Henry Wattersill said bluntly, “I would suggest it had better impress you all, because I think it not too extreme to say that this nation stands on the brink of revolution at this very hour. Yes!” he repeated as there was a gasp from somewhere in the room and a noticeable, uneasy shifting along the bench. “On the brink of revolution! That fact, I would suggest, imposes something of a burden on this Court to save us from so dreadful an eventuality. I would suggest your honors take it into account as the fact—perhaps the paramount fact—to be weighed in reaching your decision.”

  “You seem to be threatening us again,” Mr. Justice Cappola remarked. “Are you suggesting that the law is not the paramount fact for us to consider in this matter?”

  “The law is not much good without a country around to obey it,” the Attorney General said in an offhand, almost scornful way; and a little silence, shocked, dismayed, uncertain, grew in the room.

  “Well,” the Chief Justice said finally, “is that your principal argument, Mr. Attorney General?”

  George Henry Wattersill shook his head impatiently.

  “No, of course not, your honor. But it is one, I respectfully submit, which must be given major and important place in your deliberations. For, hark!”—and he, too, gestured grandly toward the angry susurrus beyond the doors—“There speaks the American people. And it is a voice that cannot, I respectfully submit, be denied.”

  “But,” Madam Justice Watson suggested, “not all the American people. And not the united American people. I have not been out there, but I rather suspect there is some division of opinion present. Unless,” she added with a sudden sharpness in her voice, “you already have them so terrified that honest dissent is afraid to show itself.”

  “Madam Justice!” the Attorney General said sadly. “Madam Justice! How prejudiced and unfair can your honor become in the heat of the moment! No one is suppressing dissent. No one is intimidating or terrifying anyone. I am simply trying to place in perspective the potentials of what could happen if the Administration is denied the means with which to secure the law and order it must have if it is to carry forward the great objectives of peace enunciated by our President. That is all. Nothing else.”

  “That is not all,” Tommy Davis said with a sharpness that brought an instant hush, against which the murmurous roar outside swelled and grew louder. “That is not all, I submit to the court of my brethren and to the court of world opinion which is still represented here by the press—still,” he repeated ominously, “but, if the Administration has its way, not much longer.

  “No, Mr. Attorney General!” he said, as George Henry Wattersill made a movement of angry protest and started to open his mouth. “No! It is inexcusable what the Administration is attempting to do here, and you know it. The bill was monstrous when the Senator from Wyoming and his young colleague in the House introduced it, it was monstrous when it passed the Congress as a result of Administration pressure, and it became even more monstrous when the President signed it into law. I do not know what possessed him, I say to my brethren. I do not know what has become of the Edward M. Jason who once stood so tenaciously for the free expression of honest dissent. He is no longer with us, my brethren. He has left us and gone somewhere else. Now he wants no dissent, he wants only agreement. He has become terrified of liberty. And I for one, I will say to this court of my peers, am finally, but I am afraid irrevocably, becoming terrified of him.”

  “Your honor!” Fred Van Ackerman cried, leaping to his feet as the dignified chamber became filled with a sudden burst of sound, startled exclamations, unbelieving comments, angry disagreement, angry support, even, here and there among the media, a little applause, furtive, quickly hushed. “Your honor, Mr. Chief Justice, I demand—the Administration demands—the disqualification of this man, who has proved himself in that single comment to be completely unworthy, completely unfit to sit in judgment on this issue. He is completely partisan, your honors! He is completely unfair! He has removed himself deliberately from the tolerance, the integrity, the judicious, careful, unemotional judgment which alone can qualify a man to sit on this Court! We demand his removal from this case, and in due course, your honors—in due course, after your honors have decided this issue in the only fair and honest way it can be decided, namely to reject petitioners and uphold our great President and the Help America Act—then, in due course, I promise you the matter of Mr. Justice Thomas Buckmaster Davis—that great jurist!—will be brought before the Congress for action. We will see then what can be done to rid this Court and this nation forever of one who has become a simple scold and nuisance, your honors, yes, a simple scold and nuisance without any qualifications whatsoever to mix and mingle in the affairs of this Republic! A man completely dangerous to, and defiant of, the democratic process, your honors! A legal dictator who would superimpose his judgment upon that of the American people and override the needs of this great peace-loving free society in its time of gravest peril! Get rid of him, your honors! Disqualify! Disqualify!”

  And in a few seconds, roused by some means of communication not visible within the chamber but evidently efficient nonetheless, the roar outside for the first time took on coherent form. There began a sullen, heavy chant, loud enough so that they knew the building now must be surrounded on all sides:

  “Disqualify! Disqualify!”

  For several minutes within the room no one spoke, no one even moved. Then movement began, hardly perceptible, hardly conscious, perhaps instinctive, but pointed nonetheless: from Justice Davis there was a slight but definite withdrawing on the part of several of his colleagues, among them the Chief Justice on his right. It was not lost upon the media or upon anyone else.

  Presently Justice Montgomery, one of those considered certain to be against the Administration, leaned forward and peered around Tommy Davis at the Chief Justice.

  “Why are you shrinking away from Justice Davis, Mr. Chief Justice?” he inquired with a dry contempt consistent with his reputation for savage repartee. “Are you intimidated by the rabble beyond our gates? Are they really going to dictate to this honorable Court and frighten us into doing their bidding? For shame, I suggest to you, Mr. Chief Justice, for shame!”

  Again there was silence in the room while outside the angry chant continued. Justice Davis stared impassively straight ahead, the Chief Justice flushed with anger, Justice Montgomery continued to fix him with an unyielding eye, their colleagues looked at them with varying degrees of interest, uncertainty or alarm. The media, whose members realized suddenly that they had a great deal riding on Tommy Davis, studied them all with an intensity in which a considerable apprehension was beginning to appear. The usual wisecracking exuberance of the profession was not present now. Abruptly it was all deadly serious as it became obvious that perhaps not even the Supreme Court was immune to the cancer of the times. If the Court went—and the Congress went—and the White House went—then what would be left to protect them from the savage rush of dissolution?

  To protect them or anyone?

  A great uneasiness grew.

  Into it the Chief Justice finally spoke, obviously controlling his annoyance with some difficulty but managing a reasonable outward calm.

  “I will not dignify the comment of Justice Montgomery with reply other than this: this Court will not, as he puts it, be ‘frightened’ by anybody. It will perform its duty as it always has. It will take into account the facts put before it and it will decide thereupon
and forthwith.” Then his firm tone changed, subtly but unmistakably, and the worry quotient in the room shot up again. “It is true, of course, that there may be some valid question raised concerning the propriety of Justice Davis’ remarks, in that they do appear to show a certain amount of bias in his consideration of the issue now before us. This could possibly be misconstrued. It could possibly be seized upon for the advantage of one side or the other. It could possibly be an embarrassment to this Court. Perhaps he would care to explain his rather peculiar and, in my opinion at least, unwarranted attack upon the President of the United States, which, coming from this bench, falls oddly upon the ear.”

  Now it was Tommy’s turn to remain silent for a time, during which the ex-President and his friends silently but fiercely exhorted him in their minds to stand firm and remain true to his convictions, which were now, obviously, the same as their own. They need not have worried. The reply of the little Justice, when it came, was slow, thoughtful and unimpressed by the Chief’s disapproval.

  “Mr. Chief Justice,” he said mildly, “and my brethren of the Court: I am so sorry if my candor has dismayed you. I hope it will not be used, as the Chief Justice suggests, by one side or the other. I hope it will not embarrass the Court. Above all, I hope that it will not be misconstrued. For I meant,” he assured them quietly, “exactly what I said.

  “I am afraid of the violent elements in the country, as exemplified by the mob we hear outside at this very moment. I am afraid of the ‘Help America Act,’ which is a measure desperately dangerous to democracy. I am, above all, afraid of a President who could convince himself that he should condone and sign so vicious a piece of legislation. I think it must spring from a great desperation and a great fear. And that, I regret to say, makes me very much afraid of him.