Allegiance (17 page)

“I almost attended Columbia myself,” he says when I mention my alma mater. “I headed up to Morningside Heights to matriculate one day.” For some reason the phrasing puts me in mind of salmon spawning. I see Frankfurter's silvery head surging above the traffic on Riverside Drive, leaping the uptown rapids with powerful kicks. I have to cough to cover my laughter, and Frankfurter looks at me quizzically. “A friend of mine talked me into going to Coney Island instead. ‘If you're going to matriculate,' he said, ‘you must have some money on you.' ” Something about the way he
repeats the word ‘matriculate' threatens to reduce me again to giggles. I remind myself that this is deadly serious. “And then I got the flu,” Frankfurter continues. “I was told to leave New York City for my health. And that is how I ended up at Harvard.”

“My brother went to Harvard,” I say. It is not much of a rejoinder, but the words are like coins in a jukebox. Frankfurter nods quickly and starts up again.

“There were lots of robust, self-confident creatures about. But it turned out that no one cared about your father or your face.” He pauses. “This was at the law school, of course. When I tried to get a job, it was a different matter. I went out for Hornblower and Potter. I'd heard they'd never taken a Jew, and I said, ‘That's the office I want to get into.' And they were willing to take me—on the condition I change my name.”

That certainly never happened to my brother. I find myself at a loss. “Oh,” I say. “How unpleasant of them.”

“Yes,” he says. “I refused, of course. ‘Hold yourself dear,' my mother told me. I went to work for Henry Stimson instead. He was not yet the Secretary of War, only a New York district attorney. But a great man even then. He is handling the Japanese American problem with both wisdom and appropriate hard headedness.”

• • • • 

Eventually, Chief Justice Stone circulates a draft opinion for the
Hirabayashi
case. The curfew is a reasonable military measure, he says, and judges cannot second-guess the generals. There is reason to fear disloyalty, he continues, relying on the brief of the Pacific states. The Japanese have not assimilated, and they send their children to Japanese language schools. The military had to act quickly, and it did.

Now I get a chance to see what Gressman has been working on. A draft dissent comes from Murphy's chambers. All these things could be said of the Italians, it observes, with their Catholic schools. Placing our own citizens in camps . . . it bears a melancholy resemblance to the treatment of Jews in Germany.

My conversations with Frankfurter change tone. He is furious. How dare
Murphy speak to him of the Jews of Europe? What we can do for them is win this war as quickly as possible, united behind the President.

Black just shakes his head. It's a mess, he tells me. I wouldn't let them back if I was in command. Murphy doesn't understand that this is war.

In the next days, Gressman opens other lines of attack. A letter comes from Douglas, asking why we cannot say that the Army should let the loyal citizens prove themselves and return home. Vern Countryman goes from chambers to chambers with FBI reports attesting that the threat of disloyalty has been overblown. They took my law school valedictorian, he tells me. An empty chair at graduation. Called to serve his country in another place, the dean said.

It makes no impression on Black, and it infuriates Frankfurter further. Douglas is cynical and amoral, he tells me, writing for the mob outside, not the priests in the temple. The Court cannot order anyone released, loyal or not. As for the FBI . . . the generals said this was necessary. Who are we to second-guess them? Do you want another Pearl Harbor?

The Justices are as close to open war as I have seen them. Stone calls conference after conference, hoping to hammer out a compromise. Frankfurter rants for fifty minutes at a time, Black tells me, the duration of his Harvard seminars. At the end of one tirade, Douglas stands up and gives him a Nazi salute, saying “Heil, Fuhrer.” Frankfurter sweeps a stack of books off the table and storms out.

But slowly Frankfurter prevails. Importuning, cajoling, begging, he goes from chambers to chambers, like the Russians retaking Stalingrad house by house. First Rutledge and then Douglas agree to join Stone's opinion. Gressman fights a desperate rearguard action. He looks awful, desolate and pale, so tired I don't begrudge him whatever coffee he has. But even Murphy finally gives in. He will write separately, but in concurrence, not dissent.

When that memo circulates, late in the evening, I go to Murphy's chambers to see Gressman. I can hear his music before I reach the door, one of the little combos he's always telling me will replace the big bands. The tune jumps around, too fast for dancing, but as I stop with my hand on the frame I can see Gressman moving to it. His head nods up and down; his glasses throw fragments of light my way. He's still thinking he can turn this around; he's
convinced himself there's a way out. It's crazy, but endearing. “Got your new plan?” I'm trying to put cheer in my voice, but when he turns it drains away. His cheeks are wet. I open my mouth but nothing comes. After a moment he shakes his head and I walk on.

• • • • 

Spring is turning the corner into summer as the
Hirabayashi
decision is announced. Heat hangs like a damp blanket in the air, and shrill insects sing in the dark nights. The
Washington Post
picks up on Murphy's concurrence as a sign that some of the Justices entertain grave misgivings. It laments that the outright deprivation of civil rights we have visited upon these helpless and, for the most part, no doubt, innocent people may leave an ugly blot upon the pages of our history and urges the Court to reach the issues of evacuation and detention as soon as possible. I hope it will make Gressman feel better.

“I'm only reading the California papers,” Black tells me; those ones are enthusiastic.

The clerks celebrate the approaching end of term with a happy hour in the courtyard. There are stone benches and chairs of wrought iron; there is a fountain that throws jets of water up to hang suspended in the air, fall, and return. “Sorry we couldn't go with you,” Vern Countryman says to Gressman. “I bet Douglas a bottle of Scotch he'd realize he made a mistake. I figure he'll come around for the next one, though.”

“You going to be here?” I ask.

Countryman shakes his head. “Army Air Force,” he says. “Want to come along? Volunteers get their pick of service.”

I say nothing. I have two more months with Black, and after that the future looms like a blank wall. I see Suzanne in her ball gown, pale silk and paler skin; I see her rising through the green water, wreathed in bubbles. I remember her lying on the bed, blue flowers in the sheets. And I remember that moment when the darkness reached out its hand. What is waiting for me? Law practice in Center City, the indentures and debentures of the Girard Trust, the annual proposal of an Assembly? Or is now the time to volunteer, time for shrapnel-torn Umbrian skies, for bloody Pacific coral? A moment of death, or a lifetime of dying?

Haynes walks over. A sheen of sweat puts silvery highlights on his temples and upper lip. “Unconditional surrender,” he says.

Gressman looks up. “On the contrary,” he said. “I have not yet begun to fight.” His voice is thicker than usual. I wonder how much he has been drinking.

“You should probably start sometime soon,” Haynes says. “Before there are too many 9–0 decisions against you.”

“Nine–zero,” says Gressman to me. “It's true. I would have liked a stronger message that the curfew's as far as we'll let them go. Why did it have to be 9–0?”

“Why?” Haynes asks. “Because there are only nine Justices. Besides, don't you think your stern concurrence is a warning? To the brink, the very brink of constitutional power.”

“Shut up, Phil,” says Countryman.

“To the brink,” Haynes repeats. He sings it to the tune of the “William Tell Overture” and performs a mincing dance, evidently intended to suggest a man on horseback. “To the brink, to the brink, to the brink-brink-brink. Hi-yo Murphy, away!” Other clerks are looking over in curiosity. Gressman rises and takes a step toward Haynes, who cocks one eyebrow and both fists. “Try me, Gene.”

“I can move Murphy,” Gressman says. His words are clearer. “I can move Black. Ask Cash if you don't believe me.” His voice rises. “You know who puts their own citizens in camps. There will be none of that here.”

He stops. I am thinking that if he is anything like the drunks I've known back home, the next thing will be a rush of tears and broad affection. But Haynes has other plans: he gives Gressman a fist in the face. Gressman never has time to get his hands up; he takes the blow on his right cheek and sits down hard. Countryman and I look at Haynes in surprise.

He holds his hand, wincing. “He was going for me.”

“I didn't see anything,” I say. “Vern?” He shakes his head.

“I could tell,” Haynes says.

I take a step toward him. “You can tell,” I say. This close, I can smell the Wildroot Cream Oil in his hair. “You have this magical ability to tell when someone's about to hit you?”

“It's not magic,” Haynes says. “It's just a matter of knowing what to look for.”

“Might be worth a test,” Countryman says.

At first I don't get it. Then I understand. “It's the way he was holding his hands,” Haynes is saying. “He was—”

He doesn't get any further, because I swing from the hip and land a solid one in his gut. “You're not as good at that as you think,” I say. He doubles over, then straightens and comes at me. Episcopal had its boxing master, and I fielded enough of his punches to slip Haynes's first shot. It glances off the side of my head. He swings again, a wild roundhouse that I duck. I bounce up and give him a jab under the eye. He takes a staggering step backward and trips into the fountain.

My hand is hurting now, but I try not to show it. Haynes rights himself and looks up in fury. “In fact, you're pretty bad,” I say.

Gressman chimes in from the ground. “I'm staying. I'll be here for the next case. I'm going to win that one, and there's nothing you or anyone else can do about it.”

But in that prediction, Gene Gressman is wrong.

THE NEXT DAY,
I head into work with a lighter step. Oddly enough, I find that the fight has restored my sense of well-being. There is a satisfaction in finding out who the enemy is, and also in punching him in the face. I would not have guessed that I would end up fighting Haynes, or that I'd do it on Gene Gressman's behalf. But he's a friend. He helped me, or tried to, and I helped him. I wish him luck in the next case, I think. When the Court can't duck the issue anymore, when it has to decide about the evacuation and the detention of the Japanese, I hope he wins.

I should get him something before I go, I decide. Maybe I'll stop by Murphy's chambers and ask him what he'd like. Or maybe it should be a surprise. In my experience, people are always giving each other silver hip flasks on occasions like this. Engraved, monogrammed . . . it's a little
de trop
. But maybe there's something like that with a coffee theme . . .

Raised voices disrupt my musings. They echo in the corridor. “This is a federal investigation,” one man says.

“I don't take orders from you,” another answers. “Or J. Edgar Hoover.”

I round the corner. One of the Court's marshals is standing in the doorway to Frank Murphy's chambers. He blocks the way of a man in a dark suit with a badge in his hand. Haynes and Countryman stand nearby, their faces serious.

“What's going on?” I ask.

Countryman puts his hand on my shoulder.

“It's Gene.”

“What?”

“He's dead. I'm sorry, Cash.”

I do not think; I just push my way past the agent, heading into Murphy's chambers. The marshal steps forward, but then he recognizes me and lets me pass. I look wildly about for a body, a bloodstain, something to mark the enormity of what has happened. There is nothing, just Gene's scattered papers and books and a coffee mug on the desk. It looks for all the world as if he has just stepped out for a moment, and when I return to the hallway I half expect to see him standing there.

But there is only Countryman's concerned face. “I'm sorry.”

I have the feeling that everything is slowing down around me. It isn't, though. Behind Countryman the two men continue their argument unabated. It is just that their words no longer register. One thought occupies my mind, so big that it is taking a long time to process.
Gene Gressman is dead. Right,
I am thinking;
right, I understand
 . . . and then it slips away; I lose my grip. What is before me is too huge, too featureless to grasp.

“What happened?”

“No one knows. They found him this morning.”

The world is coming back into focus, but it is different. My face feels slack; the air does not satisfy my lungs. “Why is the FBI here?”

“I don't know,” Countryman says. “But the marshals won't let them in. You should go sit down, Cash. You're not looking good.”

I nod my head.
Right
, I think,
right
. It slips away again. I am not looking good. I should go sit down. I walk on down the hall to Justice Black's chambers. Over my shoulder the words of the argument are intelligible again.

“So whose orders are you following?”

“Justice Felix Frankfurter's.”

• • • • 

For hours I sit at my desk and gaze out the window, seeing nothing. Thoughts run through my mind. Gene is dead, and Frankfurter is blocking the investigation. Gene opposed Frankfurter in the
Hirabayashi
case, outwitted him with the Pledge of Allegiance, swore to undo the evacuation when the time came.