Monday, March 14, 2016

Judicial Activism and the Power of Life and Death

Review: Decision by Allen Drury

When Pulitzer Prize winner Allen Drury wrote Decision, the US was deeply entrenched in the Cold War, the crime rate in the US was sky-rocketing, domestic terrorists wore peace signs, black berets and tie-dyed shirts, and the Supreme Court was already a center of "judicial activism," with decisions like Brown v. Board of Education and Roe v. Wade.

Drury's power does not lie in elegant phrases and interesting metaphors, but in his profound understanding of how men and women in positions of power work with each other. Drury wrote of a Supreme Court under fire from both sides of the American political spectrum; a court which, although divided inside by the passions and beliefs of its associate justices, must present a united front to reach a decision. This was a Supreme Court just coming to realize the potentials of its power:
"They can't just arbitrarily set aside one sentence and impose another!" gasped the young lady from the Des Moines Register, a new reporter at the Court. "Who says they can't?" the Washington Post responded tartly. "They're the Supreme Court of the United States, aren't they? Who's to stop them?"

Drury wrote from a conservative stance, and at the time he wrote this novel, was still willing to embody reasonable people in his more-liberal characters. So we meet new Associate Justice Taylor Barbour, coming to the court after a whirlwind confirmation by a conservative Senate, appointed by the Eisenhower-esque President for whom he had served as Secretary of Labor. Barbour has a good friend and former Yale study-partner, Moss Pomeroy, already on the court. He comes to a court that is precariously balanced between conservative and liberal. Taylor Barbour intends to embody that balance within himself, as he has all his life.

As these events transpire in Washington, DC, a shadowy figure gradually emerges into the light in Moss Pomeroy's home state, South Carolina. At first glance, Earle Holgren is a survivalist living modestly to avoid detection. But we learn of the inheritance that bankrolls his bitter fanaticism and of his plan to "make a statement" about the local nuclear power plant that has finally been completed.
...He estimated that at the time of the explosion, it would be quite dark. It would be a pretty sight against the looming mountains and trees. It would flower like a fountain. It would be a rose of death... He neared the roped-off area where uniformed guards watched impassively as a small group, some students and some leftovers like himself from an earlier age, stomped and shouted, their placards proclaiming hatred, dire prediction and fear. He stopped for a moment and watched them with contempt. What children they were... He felt no community with them any more. His methods were more direct.

What makes this novel echo so eerily in this millennium is the central emotional issue in the subsequent trials of Earle Holgren. Taylor Barbour's bright daughter Janie is visiting Sarah Pomeroy on the day of the power station opening. The explosion kills Moss Pomeroy's daughter outright, but injures Jane Barbour severely, and as the trial commences, she is in a persistent vegetative state. Barbour must set these emotional reactions aside as the suspected perpetrator comes to trial, much as Chief Justice Charles Evans Hughes advised a new colleague on the court in 1939:

Justice Douglas, you must remember one thing. At the constitutional level where we work, ninety per cent of any decision is emotional. The rational part of us supplies the reasons for supporting our predilections.  —The late Chief Justice Charles Evans Hughes, quoted by Justice William O. Douglas in his autobiography.

Drury's novel brings other characters into the fray: a huge national organization named Justice NOW! that seeks to strengthen criminal penalties, including the death penalty; as well as a curious amicus curiae filed on behalf of "CBS, et al" (the alii in that "et al" comprise all the major TV news broadcasters of the time) which seeks a judgment from the court to allow televising the execution of Earle Holgren, once his sentence has been imposed.

Allen Drury is always compelling reading, and of his novels, perhaps only his Pulitzer-winning Advise and Consent is more meaningful to current events than Decision. If your local library doesn't have them both, I'll be surprised.