Allegiance (51 page)

Now I understand what he is asking. I stop typing and shut my eyes. I bite my lips until I taste blood. Then I tear up my letter and write another.
I promise you your wife will not be deported. I promise you her citizenship will be restored. I promise this on behalf of the Department of Justice and the United States of America.

It is a lie, or at best a promise I have no authority to make. We must enforce the law, says Francis Biddle. He will not raise the issue with the President. Political suicide, he says. I nod my head and smile at the phrase. And I go to see the last man I can think of who might be able to help.

Hugo Black does not seem surprised to find me on his doorstep. His face suggests he has always expected my visit. “How've you been, son?”

“Well enough,” I say. Josephine, sitting in a housecoat, looks up briefly as we pass through the kitchen on the way out back. “How is she doing?”

Black pulls on his nose and sniffs. “Better with the damn war over. Soon she'll see her boys again.” He plucks a grape from the vine and sucks out the pulp, using the skin to catch the seeds. I do the same. “There you go,” he says, laughing. “I taught you something after all.”

“I told you what you taught me, Judge,” I say, and he mutters, “Well,” and dips his head.

We are out in the garden among the roses now. I turn to look back at the house, trying to think of how to say what I have come for. Josephine is a shadow at the kitchen window; above her is the library, where his books sleep in their covers. Books like the Judge had, pages and pages of explanation and analysis, years of decisions that led us to horse piss in the stalls of Santa Anita, flecks of blood on the walls of the Tule Lake stockade. Even when Fahy asked for an honest accounting, the Court pulled the cloak of law over their faces.

“Did you have a hard time writing
Korematsu
?” I ask.

Black gives me an appraising glance. “I know that opinion's not what you wanted,” he says. “I can read a brief. And of course there were some differences of opinion on the Court. But no, I didn't. I'm not going to interfere with the Army.”

“But it's over. The camps are closing. It would make no difference to the Army. Why not just say it was wrong?”

“You said it,” Black answers. “The camps are closing. We closed them.
Endo
set those people free.”

“
Endo
said detention was never authorized.” Black just looks at me. “That's not true,” I say. “And what if it happens again?”

“It will happen again. That's the point. The government will need this power.”

“What power?” I ask. “The power to lock people up for no reason?”

“The power to defend the country,” says Black. His voice is soft. “You worry that the government will do wrong in the future. So does Robert Jackson. The decision lies about like a loaded gun, he said. Well, the man's got a way with words. But I worry that some judge will stop the government from doing what's needed, and I think a decision saying he can is the real loaded gun. We don't know what will happen. But we lose more if the judges get it wrong than if the government does. Do you want to gamble the country on five votes?”

“I don't think the country was at risk.”

“Maybe not here. But maybe it will be next time. And think about what would have happened if the Japs had landed. No one would have known who was loyal, who was an invader. They would have been slaughtered.”

I shake my head. “They were never going to land. General DeWitt . . .”

“John DeWitt is a good man,” Black says. His voice is less soft now. “And a good friend. And whether he's a good general is not my business. Courts don't make war.”

I suck another grape in silence. The wistaria has flowered, trailing streams of purple down the wall. “Trim that back hard and you'll get another bloom before fall,” I say.

“Yeah,” says Black. “I know a lot of innocent people suffered. No one denies that.”

It is my opening. “Have you followed the renunciations?” I ask. He shakes his head. “In Tule Lake, the segregation camp. Over five thousand people gave up their citizenship because they were afraid they'd be forced out.”

“That's a shame,” says Black. “War is the sum of hardships.”

“They're going to be sent to Japan. But we can do something about it.” Black frowns at me. “You can.”

“What are you talking about?”

“You could issue a stay, couldn't you? You could stop the deportations.”

“Good lord, son,” says Black. “Tell me that's not why you came here.” I say nothing. He shakes his head again, a different expression on his face. “I thought better of you.”

“You can do it. It doesn't matter what the law says, not if there's something you want enough.” He raises his hand, but I don't stop talking. “That's what you taught me, Judge. And now I want you to do something to help people that we've wronged. Is that so much to ask?”

Black has the expression of a man trying to make a hard decision. But as I watch the struggle on his face, I realize it is not about whether he should say yes. It is whether he should throw me out right now. After a moment, he nods at the tennis court. “I think we need to get some distance between us.” After another moment, I nod too.

Justice Black's problem, I think as I change into his son's whites, is that
he doesn't understand weakness. He does not feel it in himself; he does not understand how it feels for others. He has never acted in panic or despair; he has no sympathy for those who do. He is content to tell stories about his good friend John DeWitt, his days of practice in Birmingham, where he wouldn't try a case on a confession alone. Suddenly I am furious. Black does not understand weakness, but that can change.

If you want to beat someone, my squash coach told me years before, play to his vulnerability. If you want to break him, play to his strength. I do not want to beat Hugo Black. I want to teach him what it is to be helpless.

Black's strength on court is his tenacity, that and his inside-out slice forehand. I construct a point to let him hit that shot, anticipate it, and rip a backhand crosscourt past him. I play that same point three times in a row to show him he can't change it. Then I return his serve with a drop shot, almost an insult, and watch him charge vainly toward the net, thin legs pumping.

“You've been practicing,” he says at the changeover. “Nice shot.”

“Nice try,” I tell him.

I serve hard the next game, not hard enough to get the ball past him, but enough that he struggles to put it back into play. The second shot of the rallies I hit as hard as I can, cruising up to the service line and pounding his weak return. I hit two of those away from him, sending the balls skidding out of the court as he recovers from his lunge after the serve. The other two go at him and he gets the racquet up barely fast enough to deflect them to the side. I stand in front of the net waiting for him to make eye contact, then turn and walk back to the baseline to return serve. Black gathers the balls from the corners of the court, saying nothing. One has rolled out into the grass.

The third game I slow things down. We have longer rallies, forehand to forehand, and he ends two of them with winners, the inside-out slice squirting wide to my backhand. I win the game, but I hope he will think he is getting settled.

We change sides again and he places a ball on my racquet as we pass each other. “I'm sorry about Clara,” he says. “Bill Douglas can be a brute.”

I have planned to step up the pressure in the fourth game, and now I do. On his backhand the garden wall comes close in on the margins of the court. I move him over to that side gradually to get him within range, then slice the
ball even wider. He hits the wall at a run and looks at me with something like surprise. I set the next point up the same way and he hits the wall again. This time he doesn't look at me.

Black bows his head a moment before he serves to open the fifth game. His shots are less reliable; he looks rattled. I do nothing but retrieve, spinning the ball back with medium pace, medium depth. The points are longer and he wins one of them, but the work is starting to tell. He is dripping at the changeover and stops to lean on the net post. “You can't talk to me about a case,” he says.

“There's no case.”

He looks confused. “Then what is this about?”

“It doesn't have to be a stay,” I say. “You could talk to the President. Frankfurter does that, and Douglas. You can do it too.”

Black shakes his head. “I'm a judge. That's all. If there's no plaintiff, if there's no case, there's nothing for a judge to do.”

I say nothing. It is five games to none now. Black has won three points, and he does not look well. I am discovering my capacity for deliberate cruelty. It is not infinite. I tell myself that this is a lesson he needs to learn. I tell myself it is for a good cause. I tell myself the decision has been made already and now I am just carrying it out.

I serve a double fault. My concentration is slipping. There are other thoughts in my head. I see the pleading in John Hall's eyes, the silver trail down Fumiko's cheek. I see fear on the faces of Judge Skinner and Agent Miller. I hear Clara's voice.
That's not the right answer, wonder boy.
I feel her arms around me in that last embrace.

I spin the next serve in at three-quarters speed. The point settles into the routine of a drill. I move Black from side to side, hitting the ball just within his reach. He struggles, slapping it back across the net, turning a little slower each time.

When do you give up on a point and save yourself for the next one? I asked my coach that question once as we drove to a match. He nodded thoughtfully, as though giving the matter the consideration it deserved. “When you're dead, Cash,” he told me. “You give up when you're dead.”

Black is of that school. But it is not a choice he is making. The thing about
Black, I realize, is that he can't stop. For a long time of his life he was a speck on the horizon, and looking at him you couldn't tell if he was a man or something else, just that he was a little spot getting bigger. If he'd been a sprinter, he'd have burned out; if he'd been a boxer, he'd have gotten up one too many times, and someone would have put him down for good. But no one could do that to a lawyer, so he kept coming, and when he got where he was going he'd forgotten how to stop.

And now maybe I will show him. My shots are floating in high arcs, landing well within the sidelines, but the two or three steps needed to reach them are all he can manage. The unsteady shuffle of his feet suggests he is reaching a dangerous level of oxygen debt. I vomited once, playing John Hall, but no one ever dropped dead on the Merion courts. But then, we were all forty years younger.

Black turns one more time, stumbling as his feet drag on the clay. There is a sound behind me, once and then again. Black pushes the ball over the net and heads toward the other sideline. His face says he is learning something, pains that persist, declines that will not be reversed. He can give all he has and it will be worth nothing in the end.

The sound comes again, louder, and this time I recognize it as a sneeze. I hit the ball into the bottom of the net and turn toward the house. JoJo is sitting under the peach tree, a bowl of ice cream melting beside her. She is looking for the bad men, for the monsters in the garden. “Bless you,” I say.

When I turn back to the court, Black has his hand on the rough edge of the garden wall, gripping it as though pain, too, is something to lean against. I walk over to him. “There's nothing I can do, Cash,” he says.

“Yes, there is. You can order them to stop those boats.”

He shakes his head. “Someone's got to follow the rules.”

“You can stop them.”

He turns away, pressing his head against the wall. JoJo is still watching us from the grass. Now she stands and approaches, breaking into a run as she gets closer. She throws her arms around Black's legs. “JoJo,” he says. “Tell him I can't do it.”

I can see that it's the truth. He could not stop chasing my shots and he cannot break the rules he has set for himself. I cannot change that; all I can
do is punish him, hurt him for not being who I want him to be. I put a hand on his damp shoulder where he bows against the wall and I forgive him for what he cannot help.

“You're right, Justice,” I say. He takes a long, uneven breath and before he can correct me, I change it. “Judge.”

“Yes,” he says. His breathing starts to slow. “I'm a judge. And what are you?”

For a moment I am angry again. What am I to ask him this favor, to ask for help, to tell him I think a wrong has been done?

“Judges don't bring cases,” Black says. And suddenly I understand. The roses in the air are the honeysuckle of Owen Roberts's farm, and I am remembering our first meeting, where Black asked what he could help me with.
Every man's got a purpose,
he said.
Might be I could teach you yours.

I am a lawyer. I have a case; I have a claim; I have a client. And I have a judge.

The only problem is that he's three thousand miles away.

I OPEN MY
desk drawer and take out the letter James Rowe left for me. I thought it was a threat at first, then a warning. Then it was a reminder of how little we understood each other. Now it is just two sentences I don't need to type myself. I sign at the bottom and fill in the date: August 18, 1945.

Francis Biddle seems mildly surprised to hear that I am leaving the Department. “I'd hoped we might have your services for another few years. There's lots of work to be done.”

“Maybe,” I say. “But putting people on ships to Japan won't be the last thing I do in this war.”

“The war is over,” he says. “Well, we'll miss you. May I ask where you're heading?”