Allegiance (8 page)

“I'm very careful with Court papers,” I say.

“Looking for leaks,” he says. “You know, if that's what it is, it might be worth trying to catch them.”

“How?”

“I've got an idea. I'll let you know when I figure it out.”

“Okay.” I pause a moment. “Hey, why do you do that thing with the doors?”

“The welcoming committee? Just to take the starch out. Show you you're no better than the rest of us.”

“And why would I think I was?”

“Why, indeed?” The bitterness is back. “I can tell you, your pal Haynes took it pretty hard.”

“Phil? Oh, he's okay.”

“So you think. I have another tip for you. Figure out who your friends are.”

“Phil Haynes is a good guy.”

“Because he went to school with you?”

“No, he didn't. But we know some of the same people.”

“Oh, well, in that case.” Gressman shakes his head. “You may not know him as well as you think.” He claps me on the shoulder and stands up. “Come on. We'll talk more tomorrow.”

I SIP MY
coffee. It is bitter and growing cold, but I find I like it anyway. It helps me stay focused during the cert work, which has grown less terrifying and correspondingly more boring. Still, there's a reassuring rhythm, like the repetitive strokes of a squash practice. Reading petition after petition, like hitting shot after shot against the wall, knowing that nothing about them will ever change, but I might slowly grow to better fit that world.

“Have a nice time in Philadelphia?” Phil Haynes is at my door, jaunty in his boater.

“Yeah,” I say. “That was a good idea. But someone broke into my apartment while I was away.”

Haynes looks genuinely troubled. “How do you know?”

“The door was unlocked. And there was a footprint in my closet.”

“So someone with a key.” His skepticism is returning. “That sounds like the super.”

“Or someone with a lock pick.”

“Come on, Cash.”

“Gene Gressman believes me.”

“He does?”

“Well, he thought it was the FBI.”

Haynes shakes his head. “You want to know something about Gene Gressman? Follow me.”

We proceed down the hall to the Murphy chambers. Haynes pokes his head in the door to verify that Gene isn't there, then steps inside. “Hi, Rose,” he says to the secretary. “We'll just be a second.” He walks to Gene's desk. “Look at this.”

“What?” It is a photograph, apparently clipped from the paper.

“Those are the Nazi saboteurs,” Haynes says.

He is right; I recognize the picture now, the eight resigned faces. “So what?”

Haynes tilts his head toward Rose and waves me outside. “What?” I repeat in the hallway. “Are you saying he's a Nazi?”

“Of course not. But what kind of a guy keeps their picture on his desk?”

“I don't know. Did you ask him why?”

Haynes shakes his head. “I'm just saying you might not want to rely too much on his opinions. He's not . . .”

Before he can finish the sentence, Felix Frankfurter rounds the corner. He smiles at us. “Cash,” he says. “I've been hoping to see you.”

“Why is that, Justice?”

“The Pledge of Allegiance,” he says. “The Court should not consider this case at all. But I fear there are votes to take it up.”

I try to remember my memo about the petition. I recommended a denial, I think, on the grounds that the issue was settled. Of course children can be required to pledge allegiance. The Court itself said so, just two years ago. Frankfurter wrote the opinion. Now that I think about it, though, the fact that the children's lawyers thought it worth filing a petition must mean some Justices have changed their minds. “I haven't discussed it with Justice Black.”

“You know we live by symbols,” says Frankfurter. “The flag covers us all.”

“Yes, Justice.” It is the only response I can think of.

“I brought the Brethren together for the saboteurs' case,” Frankfurter goes on. “When it seemed they could not agree. And not with logic or doctrine, Cash, but with love of country. We must not fail now.”

“No, Justice.”

“Those men were enemies, Cash. They got what they deserved. We could do nothing else. Law is a tool to administer justice. And when it does not serve justice . . .” He hesitates. “Well, justice must be served.”

“What was that about?” I ask Haynes, when Frankfurter has left us.

“He's a patriot,” says Haynes. “He's concerned. With good reason, I'd say. If you feel like your work's not important, you could always try talking to your boss about the Pledge.”

• • • • 

But Black is not in when I return to chambers. I am at my desk wrangling with cert petitions when Gene Gressman appears. “Take a walk with me.” We go to his office.

“Did you find what you needed?” Rose asks me.

“Yes,” I say. Gene looks at me curiously. “So what's the plan?” I ask, before he has time to say anything.

“Right,” he says. “The plan. We just have to think logically. What do they want? Let's say they're not the FBI. They're following you because you're a new clerk. So most likely they're looking for information. And we know already that someone has a way of getting information out of here. Sometimes a decision will get reported in “Washington Merry-Go-Round” before it's handed down. So if we find the leaks, we find out who's after you.”

“Drew Pearson's not going to tell you his source,” I say.

“Of course not. We have to make whoever it is reveal themselves.”

“How do we do that?”

“If you were going after inside information, where would you start?”

“With the clerks?”

“No. You'd follow the clerks too, probably, but I think you'd start with the printer's office.”

I nod my head. Clarence Bright on Eleventh Street prepares the Court's opinions. He is the first one outside the Court to know how a decision will come out; his office is the first place the opinions could be intercepted. And it is open to the public. “So you want to talk to him?”

“Better than that. I say we give him a fake opinion. If it leaks, we know it's him, and then we have leverage. We can make him give up whoever else is involved.”

“But then we need a fake opinion.”

“Yes. And something leakable. Something interesting. Fortunately, we have it.”

There is only one case that has been decided. “The Nazis?”

“Bingo. That'll get out if anything does.”

“But it's over.”

“The Court's going to reconsider,” he says. “Two of them are still in jail. They'll be released. The military trial was unconstitutional.”

I consider. It is not a bad idea; surely someone who gets his hands on that information will not be able to resist spilling it. “And you think you can write a fake opinion saying that?”

“Sure. I have the argument Kenneth Royall made for them. You should have seen that guy. Six foot five if he's an inch, covered in medals and ribbons. They thought a military lawyer would roll over, but he wasn't about to. They undercut him every way they could. Gave him only tax lawyers to help out. Did everything but order him to lose.” Gressman chews his lip, recollecting. “He knew it, too. You know the quills they give out?”

“Yeah.” At each argument, a ceremonial white quill is placed on the counsel tables, a memento for the lawyers. At firms I have seen them displayed on desks, usually in glass or pewter cups, a subtle advertisement of distinction.

“He finishes his argument,” Gressman says, “looks down at that quill, and just pushes it away.”

“Huh,” I say. We look at each other in silence. “What did it feel like?” I ask. “Working on that case.”

“What do you think?”

I am almost embarrassed to say it. “Like flying?”

Gressman's face shows incredulity, then something more like pity. “No, Cash,” he says. “Francis Biddle came to see Justice Roberts a couple days before the argument.”

“Oh, I know Francis,” I say. I saw him often enough growing up, though not since he moved to Washington to join the administration. Now he is Roosevelt's Attorney General. “He's from Philadelphia.”

The incredulity returns. “He argued in a white linen suit, you know. Like he was at a cocktail party with his pals.”

I am not surprised; the informality is typical of Biddle. “Maybe he felt confident.”

Now Gressman smiles. “Oh, I'm sure he did. I didn't tell you why he came
to see Roberts. It was to let us know that FDR would kill them anyway. No matter what the Court said. So what it felt like, really, was murder.”

I say nothing. Gressman lifts the photo from his desk and points to one of the faces. “Say hello to Herbie Haupt,” he says. “An American, by the way.”

Haupt looks to be about my age, maybe younger. He has a brilliantine wave to his hair and appears to have been arrested in a letterman's sweater.

“Of course he looked different after they shaved his head. For the metal cap. That's what you wanted to be here for.”

“He's a Nazi.”

“He was,” says Gressman. “Maybe.” He looks at me in silence for a moment, “Well,” he says finally. “Don't worry. This is a two-front war. We've still got the Japs. And you'll have your chance to see what it feels like.”

I SQUEEZE MY
temples with thumb and forefinger. I am working without the benefit of coffee. Rationing was announced last week, as the cafeteria stewards predicted, and a wave of panicked last-minute buying has drained the city dry. Though I knew coffee only briefly, I find I miss it terribly, like a summer romance. But I do not think that lack fully explains the headache I feel.

Gressman's description of the saboteurs' case is disturbing. Not at all what I imagined. Maybe that just means Haynes is right: maybe I shouldn't trust him. But if I can't trust him, why did I sign on to his crazy scheme to find whoever's following me?

When Black comes in, I follow him to his office. He smiles at me. “Looking for some exercise?”

“I was wondering about the saboteurs' case,” I say. “Was that an easy one for the Court?”

Black gives me a curious look. “I can't tell you about the deliberations. I'll tell you something else, though.”

“What?”

“I was thinking about Pearl Harbor on the way in this morning. I was in my car when I got the news. I pulled over to the side of the road; I just couldn't believe what I was hearing. But you know what I thought when I got my wits about me?”

“What?”

“I thought, ‘Thank God it's finally happened.' ” He pauses. “It was a good thing. They set us back, but we've still got our carriers. And now we're coming. Pearl Harbor brought the country together. It got us into a frame of mind to win a war that we were going to have to fight one way or another. We lost good men, but their deaths were worth something. War demands sacrifice, and that was theirs. But when American boys are dying like that, we can't get too upset about Nazi spies. That case was a chance to show how serious this is.”

He looks at me, waiting for something. “You're right, Judge,” I say.

“And they weren't innocent.” I have the sense he is no longer speaking for my benefit. “I've seen some bad cases. I prosecuted four years in Jefferson County. The Bessemer cops had a perfect arrest record. Any crime there was, they'd bring me some colored boy who'd confessed. I could have got convictions, of course, but I told them I wouldn't try a case on a confession alone. And then I got a grand jury together, and we investigated that police department and cleaned 'em out.”

I nod. “It wasn't like that,” Black says. “We found their dynamite, you know. We found their uniforms.” He sits behind his desk, a sign that the conversation is over. “War demands sacrifice,” he repeats. “Every generation's got to learn it.”

• • • • 

Outside my office window there passes the familiar parade of pedestrians, the office workers and the government girls. But as I look through the glass I am seeing other images. Herbie Haupt with his head shaved bare, Kenneth Royall pushing away the quill. I remember Black spraying his garden, the lazy arc of water hanging in the air until a flick of his wrist cut it off at the source. It stayed there for a second after his attention turned, floating like an afterthought, then it had fallen to earth and was gone. Not completed, just gone.

Black has a role for Haupt to play. His life fits into the larger story, a warning to America, like the lives lost at Pearl Harbor. But for Herbie there is no larger story. It ends here, jagged and incomplete, as it did for all the other young men who died, the twenty-four hundred at Pearl, the thousands since, the millions the war might claim before it is over. All of them the stars of their own movies, all unable to imagine that it could just go on without them.

“Hey there,” says Gene Gressman. I turn to see him holding a sheaf of papers, our mock opinion. “Tell me what you think.”

I take the sheets. He's written it as a Murphy opinion, and sounds just like the Justice: ringing phrases, slightly vague.
The Constitution is made for war as well as peace,
fake Murphy reminds the reader.
It is not merely for fair weather.

It's a good impersonation, better than it needs to be for our purposes. In fact, it's almost convincing, which gives me another twinge of a headache.

“Gene,” I say, “you've got a flair for this.”

“Where do you think Murphy gets it?”

I raise my eyebrows. “Really?”

Gressman shrugs. “He lets me do some drafting.” Vague envy stirs within me. Black has not discussed the matter, but I have not been given the impression that my duties will include any work on Court opinions.