Allegiance (16 page)

Here is how to decide a constitutional case, Justice Roberts once said. Lay the statute alongside the Constitution, and see if they fit. But he must have been joking, I think now. There is no law that will decide this case. The only question is whom to trust. If these people are dangerous, they can be excluded. If they are loyal, they cannot.

There are the faces in the story, and there are the voices in the briefs. Whose word will we accept? The Japanese are loyal, the ACLU says. There were no acts of sabotage on the coast before the evacuation. There have been none in Hawaii. The evacuation was driven by racism and fear-mongering.

We did not know, says the Department of Justice. We could not know. They worship the emperor as a god. They sent their children to Japan for schooling. If no sabotage occurred, might that not mean that they were gathering for a concerted blow? Evacuation was a reasonable measure. After all, it is milder than the draft.

The Pacific Coast states take a stronger tone. These people are disloyal, they say. They are not like us. They do not assimilate. They have their own religion, their own language schools; they sent tinfoil home before Pearl Harbor. Before the evacuation there were radio signals from the coast and lights flashing messages to ships at sea. Raids on Japanese businesses found dynamite, guns, and ammunition. And on the loyalty questionnaire they admitted it all.

ON EACH OF
the courtroom tables, as tradition demands, the white quill pens repose in their inkstands. The lawyers ignore them, focusing instead on their papers, leaning toward each other for whispered consultations. The clerks have the privilege of their own gallery, a small alley connected to the Justices' chambers by a short corridor but sealed off from the public by brass grillwork. The view is not great, for we have to contend with the marble columns that run along the sides of the room, and only about half of us can see all of the nine high-backed chairs behind the bench. Justice Black is hidden from my view, but I do see tall and dapper Harold Evans of Philadelphia and a cluster of men I take for representatives of the ACLU. At the government's table, the military uniforms of War Department lawyers mingle with the morning coats and pin-striped trousers of the Solicitor General's office. I recognize John Hall and feel a flash of anger that nearly brings me around to the ACLU side. He does not notice my glare.

Harold Evans rises to the podium to open for Hirabayashi. “The question in this case is whether the military can confine citizens to their homes, and then later order them to leave those homes, to leave the states in which they have always lived. The military cannot do that. The Constitution protects civilians from military authority outside an active theater of operations.”

Frankfurter is first to speak. “So you would have us rule that the Pacific Coast was not a theater of operations.”

“Yes. Pearl Harbor, where the Japanese attacked in December, is twenty-four hundred miles away. Midway, which was under attack in June, is thirty-three hundred. Attu, where they made a landing in June, is twenty-six hundred miles from the Pacific Coast. There was never any danger of invasion.”

Douglas stirs. “Isn't that a question for the military, not for judges?”

Evans hesitates a moment. He looks as though he is starting to miss his corporate practice. “The facts speak for themselves,” he says. Douglas grunts, not in an approving way. It is the noise he makes when clerks speak to him in the hallways.

At my side, Gressman looks stricken. “If we don't have Douglas, we have nothing,” he says.

“What's this ‘we'?” I ask. Gressman turns away and punches at the shoulder of Vern Countryman, the Douglas clerk, who is hiding his rangy frame behind what we call the Douglas column. It blocks Douglas's chair from view, and his clerks use it for cover when they want to watch an oral argument. Douglas is of the mind that clerks with time to watch arguments need more work, and if he spots them will send a messenger with some contrived rush assignment. Countryman ducks his head and shrugs.

Evans seems to have nothing more to say. He stands with a small smile, projecting the proper Philadelphian's air of obscure superiority, a confidence whose basis is no longer evident.

“Are the facts speaking?” Haynes whispers to me from the other side. “I don't hear anything.”

“So,” Justice Black says encouragingly. “You want the judges to say whether this military decision is reasonable?”

“Yes,” says Evans. He starts to life again, as though he has remembered the point he wanted to make. “These orders were issued in bad faith. General DeWitt was influenced by pseudo-patriotic groups and the economic power groups wishing to acquire Japanese-owned land for a song. They beat the drums of hate against the Japanese race. General DeWitt was not free of these views himself. Testifying to Congress about the American citizens, he said, ‘A Jap's a Jap. A piece of paper doesn't change that.' Race prejudice, not military necessity, was the reason for these orders.”

“General DeWitt may have made a mistake,” says Black. “But even if he did, isn't much more required to show bad faith?”

“There is ample other evidence that race hostility and prejudice were the driving forces. There is no doubt that most of these people are loyal Americans.”

Douglas is shaking his head. “Some of these people are surely loyal Americans. But that does not affect the soundness of the military judgment. The judgment was that the disloyal could not be identified in sufficient time.”

“The FBI was arresting suspects hours after Pearl Harbor,” Evans says. “Evacuation took six months. The transfer from relocation centers to the current detention camps did not even begin until May. There was ample time to consider these people on their own merits as individuals.” He pauses a moment and gives his conclusion. “Neither race nor color has military significance.”

“Thank you, counselor,” says Chief Justice Stone. “General Fahy, we'll hear from you.”

I have seen Charles Fahy argue a few times before. We call him Whispering Charlie. Most people couldn't get away with a delivery that forces listeners to concentrate in order to make out the words, but as Solicitor General he commands enough respect that we make the effort. He is a short man who stands stock-still while arguing, only seldom disagreeing with Justices. “Concede every point but the one you need,” Black told me once. That is Fahy's style. For emphasis he will sometimes take a step away from the podium and make a slow up-and-down movement of his clenched hands.

“The central issue in this case,” Fahy says, “is the war power of the government. How far may it go to protect the nation? We all remember Pearl Harbor. We remember what followed. Imperial Japan threw us back on every front. It was the most serious threat that had ever faced the United States.

“Now, what of the West Coast? It is the part of America closest to the battle sites in the Pacific. And it is a location of manufacturing enterprises, of ships and airplanes. The military authorities bear the responsibility not only of protecting American citizens but of protecting these vital elements of the war effort.”

“And would you allow judges to review these military orders?” Justice Murphy asks.

“I would,” says Fahy. “An exercise of military authority must be reasonable. But these orders are certainly reasonable. One hundred twelve thousand ethnic Japanese lived on the West Coast, concentrated in areas of key strategic importance. One-third of these are enemy aliens. Of the American citizens, perhaps ten thousand were sent back to Japan for part of their education. As a group they have not assimilated.”

“So you maintain it was necessary to evacuate them all?”

“I do not,” Fahy says. We all lean in closer. “I maintain that necessity is not the test. The matter could have been handled in other ways. Perhaps those other ways would have been preferable. But it cannot be said that the evacuation from the coast was unreasonable in view of all the circumstances.”

“What of the detention in camps of which Mr. Evans spoke?”

“Detention is not at issue in this case, Justice Murphy. Hirabayashi was never in a camp. He was charged with failing to observe the curfew, and that is all that is before the Court.”

Fahy pauses for a moment and goes into his conclusion. “We understand that many of the evacuated persons are loyal. We regret the inconvenience caused to them. But all Americans, of Japanese origin or not, must be prepared to make sacrifices. In time of war, it is not enough to say, ‘I am a citizen and I have rights.' ” The hands go up and down, fists clenched. “One must also say, ‘I am a citizen, and I have obligations.' ”

IT IS AN
easy case, Black tells me after the Justices have conferred. They will consider only the curfew, not evacuation, and curfew is a reasonable exercise of the war power. Every Justice is agreed.

Gressman is crushed. For two days he says nothing at all. Then he begins to plan a dissent. “I can still get three or four to sign on,” he says. “It'll be a warning to the government that the curfew is as far as they can go. They'll close the camps.”

This prediction strikes me as unlikely in the extreme, but I find I do not care much one way or the other. I am nearing the end of things here. Fall is my time of beginnings, but spring smells of mercy and reprieve. The air is warm, blowing down the Mall toward the Capitol and the Court, coming up off the river with a green, wet scent. Two weeks after the
Hirabayashi
argument, a flight of P-38s catches Yamamoto's transport in the air over the Solomons. A year and a half after Pearl Harbor, the mastermind is dead, and from one lump of coral to the next, the Marines make their way toward Japan's Home Islands. There is no doubt now that we are winning.

Everything is coming to a close, and it was not as dreadful as we feared. I will go back to Philadelphia; the ordinary world will resume; my sojourn in this city of mysteries will be over. There were strange doings; there were puzzles we never figured out, but it is all ending well enough. I still get invitations to Cissy's dinners. I still go from time to time. Colonel Richards harangues us
about the Court and the President, the socialists, the traitors. Drew Pearson harangues me about Richards and his ilk, the isolationists, the traitors. Joe Patterson mumbles and drinks his wine, looking worse each evening.

Suzanne and I have weathered the separation better than I expected. It was a test, I suppose, and I suppose we have passed it. In April, I steal a weekend and take the train up to see her. Sunday afternoon we sit on her bed. The white spread is lightly rumpled between us, blue flowers raised on its folds as though peeking through snowdrifts. There is no one but us in the house. Her father is in the city catching up on cases, and out the window the gardener clips the privet hedge with shears that by their size should be addressing the toes of Rittenhouse ladies. The Judge is in his courtroom, and all's right with the world.

For a moment I am impressed by the palpable emptiness of a big house. I think how lonely she must be here by herself. And then the emptiness impresses itself on me for another reason. Something is happening between us as we lean in to kiss. I am more aware of her body, aware of it not just as an object of yearning hypotheticals but as something warm and tangible and very nearby, pressing against me now through her clothes. Barriers are coming down, which have stood between us for years; lines are being crossed that marked the experienced from the imagined.

“In two months,” she says breathily. “You'll be back.” I don't know if she is asking for confirmation or suggesting postponement. Whatever she means, I say nothing; and whatever she means, she must not mean it very much, for we move on. We are deep in unfamiliar territory now, both of us breathing hard and clenching each other as for reassurance.

The gardener clips and sights along the hedge. My head comes up, and for a moment I watch him through the window, measuring lines and balance. He is looking not at what is but at what will be, not the branches in front of him but those that will grow months from now. The future is already visible to him, more real than the present. But not for me. I am caught in the instant, my vision limited to inches and seconds. Then I lift my thought; I rise above the hot, frantic moment and peer ahead. I feel suspended, motionless in space, outside of time. And what I see hits me like a physical blow.

I do not know what it is. There is a sudden vision of blackness, a sense of
collision with something overwhelmingly large. For a moment, inexplicably, I am terrified. I do not know what is happening to me. A premonition? A stroke? I remember Suzanne asking if I had seen my death and wonder if that's what this is. Then she moves beneath me and shifts her weight. Whatever it was, the vision is gone. I am back to the immediate, the all-consuming instant. “Be gentle,” Suzanne says. “Be slow.”

I am, or I try, but soon enough everything gives way and I am falling into her, helpless and wild as the man who first stepped from a plane to the empty sky, trusting a square of silk to bear him up.

• • • • 

In the weeks that follow, I am on edge. What have I chosen, what have I promised? What did I see? Suzanne is more confident and cheerful; she knows I am bound to her by honor. And Gene Gressman is working too hard to talk. He is there in Murphy's chambers when I arrive in the morning; he stays there after everyone has left, listening to jazz records and nodding to himself. “You'll see when I'm done,” is all he'll say. “Why don't you have a chat with Felix? Get into his confidence. We may need it.”

I have no particular desire to talk to Frankfurter, but there is not much else to do. The Justices are working on various opinions:
Hirabayashi
, or the Pledge of Allegiance, or some corporate case. Black wants my afternoons for tennis, but my mornings are free. And so I open myself to Frankfurter's society, sometimes in the halls or at my desk, sometimes in his chambers under the watchful eyes of Phil Haynes. I act friendly, admiring, eager to absorb his wisdom. Frankfurter is busy writing a dissent in the Pledge case, but he is happy to talk on any subject, himself above all.