Allegiance (15 page)

Suzanne sees my frown. “Not all the time, maybe. But sometimes. And maybe they help their odds by taking out some of the clerks they don't like.”

“But that's silly,” I say. “No one's taking out the clerks.”

“Oh, really? Didn't you get this job because Black had two clerks drafted away before they could start?”

My frown deepens. I have put the fate of the first two hires from my mind, perhaps because it undermines my own sense of merit, but what she says is true. It is worth looking into, I think. I will have to find out if anything similar has happened with other Justices.

“You see?” says Suzanne triumphantly. “They must have someone in mind for that slot. You probably only made it into the job because no one found out who you were in time. And now . . .”

“What?”

“Now they're probably looking for some other way to get rid of you. I'm serious, Cash. I want you to quit.”

“And so does your father?”

“He does.”

I am silent a moment. It is hard to feel threatened on a Haverford porch, but the peril seems more real as Suzanne lays it out. As best I can remember, I have never rejected the Judge's advice. I have never gone against the urgings of that powerful voice. And I have never regretted any of the decisions we made together. But as I think about it, that history itself strengthens my determination to stay. Now the Court is a place I have chosen on my own; now it is truly mine.

“I have to stick it out,” I say.

Suzanne looks dumbfounded. “Did you not hear what I said?”

“I did,” I say. “But what are you suggesting? That I leave Justice Black so they can put someone disloyal in with him? Or another poor sap who might get taken out? I can't do that. At least I know to watch my back.” She says nothing. “We've got two weeks now,” I say. “We'll enjoy it. The spring won't seem so long. And if I don't figure it out by then, I'll come home.”

Suzanne's face suggests that she does not find this much of a concession. “Of course you will.”

“So there we go.”

Her expression wavers between mutiny and contrition. “I'm having trouble with this. I told you. I don't know if I can stand it.”

“Sure you can,” I say. “You told me why yourself.”

“Why?”

“Because now you know I'm in danger.”

• • • • 

We have two weeks together. There is hot cider and carriage rides, mulled wine and the tip of her nose cold against my neck. “It is proposed to give an Assembly,” the invitations always read. But there is no proposal this year; the Assembly is suspended for the duration of the war. There is a shortage of men for even the private cotillions. I go to a few, some with Suzanne and some without her. I watch the old ladies in their jeweled collars, arranging terrapin bones in neat circles on their plates, the older men with shiny pinpoint eyes in alabaster faces that redden as they drink. Suddenly I am eager to get back to the Court.

I SIT AT
my desk in Justice Black's chambers. Before me is a list of twelve names. I add one more: Jake Porter. Then I lean back, put my feet up, and look out the window. Bundled against the weather, a young couple stroll arm in arm down First Street. Am I in danger? So Suzanne said, and I agreed, and my words sounded fine in the Haverford sun: dashing, fearless, even gallant. But it has been weeks since that afternoon, and in the marble confines of the Court, in the shadows of evening on the way home, the idea is more troubling.

No one is following me anymore; I am pretty sure of it now. But since my return from Philadelphia I have been looking into Suzanne's theory, that someone is influencing the selection of clerks. Gathering information on this year's crop is easy enough. A new caution shadows my conversations with them; some may be disloyal, and I do not know who to trust. But there is room enough in the ordinary exchanges of the day to figure out whether they arrived here by some unusual stroke of luck.

Finding this out for the clerks of prior years is harder. And then there is the most difficult task: identifying the men who never made it here. They are the crucial ones. If clerks have been intercepted on their way to the Court, it supports the theory that someone is manipulating the hiring. And it is the replacements for those clerks who are most likely to be agents of the enemy.

I cannot ask the current clerks about this. I see no way to do it without
tipping my hand to any disloyal element, and besides, I doubt that any of them would know. Instead I exchange gossip with secretaries and messengers; I trade jokes with marshals who have seen it all. And when names come up I add them to the chart in my desk.

All around me, the Court goes about its business. Cases are argued, opinions are drafted. The Witnesses win the right to knock on doors; the Pledge case is coming up. To me it is all a background hum. Black does not need me to write opinions, and my attention is on the clerks. By March I have what I think is a comprehensive list. In recent years there have been seven cases when a Justice's first choice did not join him. Add in the draft and the total grows to thirteen. It is an ominous number.

“Holmes always worked standing up,” says Felix Frankfurter. “As I told you on our first meeting.”

I spin back to the door. There he stands, in a gray pin-striped suit, his shirt crisp and white. “Elevating the feet has a soporific effect,” he says. “But you are displaying energy. You have been busy. Gathering information, I suspect.”

I slide a cert petition on top of my list of names. “Working,” I say.

“And what have you learned?”

I hesitate.

“Ah,” says Frankfurter. He steps into the room. “Come, Cash. We need have no secrets from one another. I will tell you something. Just now I passed Bill Douglas in the hall, and he said that Hugo would not go with me on the flag salute.”

“Oh.”

“You know that already. You are counting votes, I think. Well, I can do that too. And I see how it is shaping up.” Frankfurter pauses. “You understand, Cash, how important it is for a judge to put aside his personal desires. Most of all his desire for approval from his crowd. A judge can have no loyalties except to abstractions, to truth and justice. Oliver Wendell Holmes knew that. A great Justice like Holmes never once in his career committed an absurdity. Your Justice is about to commit one here. It is a pity, because he has been moving toward the status of the great.”

“That's kind of you to say.”

Frankfurter waves his hand, as though brushing away a fly. “Kindness is no
concern of mine. But loyalty is. Your Justice perhaps does not appreciate the significance of the oath. But it means something. It matters.
One nation, indivisible, with liberty and justice for all.
” He pauses, reflecting. “Do you know that they asked the Japanese to declare their loyalty? To renounce allegiance to the emperor, to say they will fight for America?”

“Why did they do that?”

“Why indeed? I just had dinner with the Francis Biddles. He wants to send them back to their homes. He thought that the disloyal ones would volunteer themselves, a hundred or so, and we could keep them in the camps and return the rest to the coast. And do you know what happened?”

“What?”

“Thousands said no. Biddle is not a bad man or a wrong-doing man, but a heedless fellow, because he does not take things with sufficient seriousness. He is an amateur. Too la-de-da. And la-de-da is not good enough in wartime. Now the President is talking of forming a battalion from those who said yes.” Frankfurter shakes his head.

“What's wrong with that?”

“Those ones worry me more,” says Frankfurter. “The army is just where a disloyal man would want to be.”

I remember the doctor in Philadelphia, smiling through his beard. “Maybe they want to help,” I say, and Frankfurter dismisses me with a look.

“Now, Cash,” he says. “Why do you suppose your Justice has changed his mind? Has he been reading the newspapers instead of the Constitution?”

“I don't know,” I say. My eyes stray to the door. Gene Gressman is passing by in the hall, and when he looks in and sees Frankfurter he stops for a moment, clicks his heels and raises his arm. I remain silent, but something must show on my face, for Frankfurter turns in time to catch the end of the display. When he wheels back to me, his cheeks have gone white and his eyes are blinking furiously.

“It is a Roman salute,” he says. “Not that it matters. The arms will be raised, Cash, to one flag or another. We will live under our symbols, or we will die beneath someone else's.” He bites his lip and turns away, shaking his head. At the door he pauses. His face is still white and his mouth is pale. “La-de-da is not good enough in wartime,” he repeats.

• • • • 

When he has gone, I wait a few minutes and go in search of Gressman.

“What were you thinking?” I ask.

He shrugs. “Nothing wrong with winding up Felix. It distracts him from his scheming.”

“If you say so.” I look at his desk, piled high with papers. “By the way, I think I've figured it out.”

“What?”

“What's going on with the clerks.”

Gressman raises his eyebrows. “Really? I kept trying with that, but I couldn't make it work. The pieces wouldn't fit together.”

“You were looking in the wrong place.” I tell him Suzanne's theory, and the evidence behind it. “Seven clerks intercepted. Thirteen, if you count the draft.”

“Hmm.” Grudgingly, he is impressed. “You have the names?”

I hand over the list and he reads it, nodding. “Jake Porter, that could be blackmail. There was talk about him at Michigan. But I don't know. Seven is an awful lot, Cash. You think they can just talk people out of taking a clerkship?”

“I don't know. Maybe some of them were genuine. But I think the replacement clerks are the ones we should be suspicious of.”

“Oh, I know who we should be suspicious of.”

I have identified two replacements among the current crop. “Who?”

“Haynes, for sure. Philbin. Beaver. Maybe Davis. He's got a funny look to him.”

His list does not match mine. After a moment I realize why. “Gene, you've just named all the conservatives.”

“I left out you, didn't I?” I let it pass. “Well,” he continues after a moment, “I call 'em like I see 'em.”

“In case you're interested, the ones here now who weren't the first choice are Davis and Ingalls.”

“I said Davis had a funny look.”

I see no point in pursuing the topic. “Are you worried?”

“About being blackmailed?”

“About being drafted. About anything.”

“I have a bad heart.” He pounds a fist on his chest. “It keeps me healthy.”

“I'd heard the effect was rather the opposite.”

“It means I don't have to worry about lead poisoning,” he says. “I'm a real 4-F.”

“So am I,” I say. The words open a hollow in me. “But I'm worried.”

“Someone's learned your secret shame?”

“The two clerks Black hired before me were drafted before they could start.”

“Ah,” says Gressman. “Indeed.” He nods. “To lose one clerk is a misfortune. To lose two seems like carelessness.”

It is not the response I was hoping for. No one is following me anymore, and it is getting late in the term to reap much benefit from replacing me, but Gressman's cavalier tone still rankles. “Can you give me anything other than a joke?”

“It's an epigram. Adapted from Oscar Wilde. You may call it a bon mot, if you wish.”

I shake my head, annoyed. “I should have drunk all your coffee when I had the chance. What are you in such a good mood about?”

“The Japs,” he says. “
Hirabayashi
briefs just came in. We have good facts. The Court's going to say the evacuation was unconstitutional. I'm going to win this one.”

“No, you're not,” I say. “Don't you read the papers? They asked the Japs in the camps if they were loyal, and thousands of them said no.”

He shrugs. “If they put you in a camp, you might start saying some funny things too. Have you read the briefs?”

“No. I've been working on this. Remember when you were helping me?”

Another shrug. “I told you, I tried. Couldn't make it fit. But now you have a new idea, good. Let's switch off. You think about the Japanese; I'll look for the enemy among us.”

• • • • 

Hirabayashi v. United States
is not an easy case. Military authorities imposed a curfew on the West Coast Japanese Americans, then removed them from
their homes, ordering them to report to Assembly Centers for transport to Relocation Camps. Gordon Hirabayashi broke the curfew and refused to assemble. For this he was convicted in federal court. Now the ACLU has chosen him to make their challenge to the exclusion orders.

They have chosen him because he is clearly loyal. He is an Eagle Scout, a baseball fan, no threat to the security of the coast. Good facts, as Gressman said. But the Court cannot decide for him alone; it will decide for everyone excluded. And how do we decide?

I use the methods my professors taught me. The lawyers have brought me a story, of a man who walked into the FBI office and told them he would not go. Through those murky waters I draw the seine of intellect. I am looking for the bright fish of the law, but I find nothing. I am lost; I am adrift in an endless sea, and there is no law, neither in the sun-dappled shallows nor the dark abyssal depths. There are only men.

I see only faces. I see Gordon Hirabayashi with his merit badges and scout kerchief. General John DeWitt with his ribbons and his medals. American soldiers, standing in the camp guard towers and crossing Pacific beaches. The earnest young men of the ACLU. And Congress and the President and the Department of Justice.