Orbit 4 - Anthology Read online

  The Chief Justice spoke rapidly and concisely. “The first case on our agenda is Frank Tyson, petitioner, v. New York. Petition is for certiorari to the Court of Appeals of New York. All of you know what this one is about, so I need restate the facts but briefly. Tyson was indicted, tried, and convicted of killing our late President Cromway in the entrance of the United Nations Building, with one bullet from a telescopic-sighted rifle, from a window in an empty room in a nearby building. Tyson’s palm-print was found on the rifle, and ballistics tests showed that the bullet taken from the President’s body was fired from the rifle. An elevator operator named Philip Dopher testified that he saw Tyson leave the room, carrying something, and hurry down the stairs. Tyson, a porter in the building, contends that he was supervising a shipment of files to a warehouse for storage, that he heard a shot in the empty room, went in to investigate, found the rifle, picked it up, then looked out the window, took in the scene instantly, and realized that he was holding the weapon that had just killed a President of the United States. He panicked, thinking only to get rid of the rifle. He ran down the side stairs with it and hid it, unobserved, in a crate of files standing by the freight elevator. Seconds later, the movers took the crate down the elevator to the van waiting on the other side of the building. And there, in that warehouse, it was eventually found.”

  He paused and looked around at the intent faces.

  ”Thus far, the case does not present a federal question. I want you to ignore the enormity of the crime and the fact that a President of the United States was murdered. All of us knew him personally, and we all have an abiding respect and affection for his memory; some of us are here by his appointment. These aspects standing alone cannot possibly warrant our review. The sole issue of relevance to us, and indeed, the sole ground urged as basis for reversal, is the alleged violation of the Fourth Amendment to the Constitution by officers of the State of New York, in that their warrant to search the warehouse was not issued ‘upon probable cause.’ Specifically, petitioner contends that the officers hired a clairvoyant, one Dr. Drago, to read petitioner’s mind, without his consent, thereby to visualize the location of the rifle, and that the New York magistrate issued the warrant to search the warehouse on this so-called information, and on nothing else. The primary question therefore seems to be, can clairvoyance adequately substitute for the routine and legally sufficient visual and aural observations as basis for a sworn statement on which a search warrant may validly issue? If we accept this as the heart of the matter, we may have to consider ancillary questions. For example, is there actually such a thing as clairvoyance? If we can satisfy ourselves here and now that there is not, then we would of course have some basis for deciding that the warrant was not issued on probable cause: and Tyson might be freed. On the other hand, if we can decide here and now that clairvoyance does exist, we have no escape from the next question: Was the exercise of this power an unconstitutional invasion of Tyson’s right of privacy? If it was not, then he was properly convicted. But if it was an improper invasion, then of course the evidence developed by it-- the rifle, and his fingerprints on the rifle-- would be inadmissible under the Fifth Amendment, and again he would go free.”

  He shifted restlessly in his chair. “There is more. Mrs. Nord, will you please step to the door and ask the marshal to bring in Exhibit Q?”

  For over a century, no clerks, messengers, or secretaries had been permitted in the room during conference. The duty of doorman fell to the juniormost appointee.

  Helen Nord stepped to the door, waited until the marshal and his assistant had place the object on the felt pad in the center of the great table, and closed the door after they left.

  ”As you know,” resumed the Chief Justice, “this is the safe. And you know what it is said to contain. During Tyson’s trial, the so-called clairvoyant, Dr. Drago, testified that he had placed a suitably cushioned auto-developing camera inside, then locked the safe, and delivered it into the custody of the trial court-- but without the combination. So far as the record goes, Drago is the only one who knows the combination. If we grant certiorari, he will provide the combination. In fact, he is waiting in my outer office at the moment. He refuses to give the combination to anyone but me. But back to the facts. At the trial, New York put Drago on the stand to prove the existence of clairvoyance, and hence that the warrant was validly issued. Drago testified that his clairvoyant power-- he called it ‘psi’-- was erratic, that it comes and goes, and could not always be called up at will. But he said he could prove it existed. He then predicted, over petitioner’s objection, that New York would convict Tyson, that we would grant certiorari, and that the majority of us would reverse Tyson’s conviction, holding that the warrant was not issued upon probable cause. He further predicted that most of us would deny the existence of psi. His proof to the contrary is supposed to be inside Exhibit Q, which we are invited to open after handing down our predicted decision.”

  ”What colossal impertinence!” roared Oliver Godwin. His white handlebar mustache trembled indignantly.

  ”Mr. Godwin,” said Justice Roland Burke coldly, “since the days of John Marshall it has been the custom at these conferences that each of us will be heard in turn without interruption, starting with the Chief Justice and proceeding down the line in order of seniority. I will ask you to await your turn.”

  The hard blue eyes of the Senior Associate Justice crackled. He said gravely, “Sorry, Roly. Sometimes I forget you’re no longer barely passing my course in torts, back at Harvard Law. Ah, what a time you had with proximate cause, and those prolix, tautological so-called briefs. In fact, you still do. You used nearly fifty words just to tell me to shut up.”

  The ample cheeks of Justice Burke turned pink. “I’d resent that, if you weren’t a senile old man, who should have retired long ago.” He concluded primly, “You confuse tautology with logic.”

  Godwin grinned evilly. “Do I? ‘Senile’ is from senex, Latin for ‘old man.’ I’m an ‘old-man old man.’“ He laughed. “Well, perhaps I am. But age is a relative thing, Roly. If you leave me out, the average age on this court would be about sixty. And you’re well over that. If it weren’t for me, Roly, you’d be an old man.”

  Pendleton’s mouth twitched faintly. “If we can defer the actuarial comparisons for a moment, I think I can finish. I don’t want us to grant certiorari and then find we have to decide whether there is or is not such a thing as psi. And I want to ignore Exhibit Q altogether. Its contents-- or at least the eventual contents of the camera-- if any-- are not of record. Drago’s insistence to the contrary, we can give it no consideration. Certainly, we cannot open it. Another point: petitioner urges an analogy to wiretapping. What has been done to him, if clairvoyance was in fact used, he calls ‘clairtapping.’ We have held that evidence obtained by wiretapping or by any other unlawful means is inadmissible, in both federal and state courts. Mapp v. Ohio, Berger v. New York. The contention is therefore made that ‘clairtapping’ is a violation of privacy as bad as, if not worse than, wiretapping, and that evidence so obtained must be similarly excluded. I think that there is merit in this contention. In summary, if the rifle was located by clairvoyance, the search may well have been unconstitutional in analogy to wiretapping. If clairvoyance does not exist, then there was no basis on which a valid warrant could have issued at all. Thus there is a possibility that we could decide the case without deciding anything about psi.” He paused and looked down the table. “Mr. Godwin, I yield to you.”

  ”Thank you, Shelley. It was about time. Several things bother me. Can we decide on the merits without deciding about psi? It’s rather like that Kidd will case in Arizona, back in the sixties, where the testator gave all his money to anybody who could prove the existence of the soul. The judge had to decide whether human beings have souls. Pity we didn’t grant cert on that one. Always wondered whether I’d get a soul out of a 5-4 decision. Sorry, brothers-- and sister. An old man likes to ramble. So I’ll just ask a question: why don’t w
e just open that safe right now and see what’s on the film? Might save a lot of argument and embarrassment later on.”

  ”You read the testimony,” said Pendleton. “At the moment there’s supposed to be nothing on the film.”

  ”Then what in tarnation is the good of it?”

  ’Some kind of magic-- and don’t ask me what-- is eventually supposed to appear on it.”

  ”When?”

  ”On Decision Day.”

  The Senior Associate Justice snorted. “You expect us to believe that?”

  ”No.”

  ”I should think not . Let’s get back to reality. As I view this thing, we’re on the horns of a real dilemma. If we take the case and reverse Tyson’s conviction because there was an unconstitutional invasion of privacy, then we have probably ruled that clairvoyance is a real and functional phenomenon. Science arises in anguish. On the other hand, if we rule that clairvoyance doesn’t exist, and that, therefore, there was no invasion of privacy, then the bleeding-heart liberals arise in howling dismay at the official blessing we have now given police use of clairvoyance. Who needs wiretaps anymore? Psi is easier, and the cops will be welcome to use all the psi technique they can dig up: telepathy, clairvoyance, hexing, prekenners...”

  ”What’s a ‘prekenner,’ Judge?” asked Edmonds, fascinated.

  ”Somebody who previously kens what’s going to happen, so as to set up police traps to catch criminals in the act. I just made up the word. But if Roly can use two words when he means one, surely I can use one word when I mean two. That’s all I wanted to say. You take it, Roly.”

  ”Thank you, Mr. Godwin,” said Burke coldly. He paused a moment, looking at the chandeliers overhead, as though simplifying and tailoring his thoughts for certain of the less disciplined minds around him.

  Edmonds awaited the dissertation with interest. Somehow, of course, it would turn on logic.

  In Burke’s early days as a judge on the New Jersey bench, Frankfurter had been his model. But this had changed over the years. Burke (like Cervantes) had finally recognized that every man was the product of his own work. But where Cervantes had been content to permit the process to operate subconsciously, Burke went to the final logical limit. He found in his own past works his best inspiration. As he shaved in the morning, he listened to tapes of his previous decisions. And he listened to the same tapes in his car as he drove to court, and at night put himself to sleep with them.

  He had founded the Burke Chair in Logic at Harvard. His famous text, Logic in Appellate Decisions (dedicated to himself) consisted largely of annotated excerpts from his own decisions. He was both ignorant of and indifferent to what others thought of his magnificent narcissism. In fact, he considered himself modest, and sought out situations where his modesty might be displayed, noticed, and commented on. Roland Burke’s long love affair with himself had not dimmed with the passing of time: it was a serene thing, unmarred by lovers’ quarrels. He had no portraits hanging in his office; only mirrors.

  Edmonds sometimes wondered at his own reaction to Burke. Far from feeling contempt or derision, he found he envied the famous jurist’s confident, self-centered, doubt-free integration into his codified environment, and his system of logic that so easily resolved all questions into black and white, with no plaguing shades of gray left over.

  ”Psi,” began Burke, “is hogwash-- illogical by its very definition. Yet, as I shall demonstrate, logic requires that we take the case. There are only two possibilities: a) to deny the petition, and b) to grant. If we deny, this sets a precedent that the Supreme Court will refuse to review constitutional questions involving psi. Our refusal would be interpreted by the lower courts as endorsing warrants issuing on clairvoyant information. Such a consequence is clearly unthinkable. This leaves us, therefore, only with the second alternate, b), to grant. Logically, we must grant.”

  ”Quod erat demonstrandum,” murmured Godwin.

  Burke ignored him loftily.

  ”Thank you, Mr. Burke,” said the Chief Justice. “Mr. Moore?”

  Nicholas Moore of Louisiana spoke with a soft drawl. “I disagree. This is not the kind of case this court should take. Even if there is a federal question-- which I doubt-- we can turn it down. Since the revision of the Judiciary Act in the twenties, we have been free to turn down practically any case we wish-- excepting issues between the states, or the states and the United States government. It’s a question of policy. We can handle no more than a hundred to a hundred and fifty cases a year-- less then ten percent of the appeals that come to us. Our every decision should throw light on some current judicial problem and state principles for the guidance of the lower courts in thousands of similar cases. We did this with the wiretapping cases, the desegregation cases, the school-prayer cases. But how many cases involving this psi thing are currently pending in the lower courts? None at all, that I’ve heard about.”

  ”Mr. Blandford?”

  ”I agree with Moore,” said the Massachusetts justice thoughtfully. “We took considerable interest in this kind of thing in Salem three hundred years ago. We burned people at the stake for less. We weren’t too sure about God, but we certainly believed in the Devil. I hope this isn’t evidence of a trend. We’re not an ecclesiastical court of the Middle Ages. We can’t go back. I don’t think we should get involved. No, never again.”

  ”Thank you. Mr. Lovsky?”

  Justice Lovsky stared suspiciously at the safe. “The whole thing smells. But I agree with Mr. Burke, supra. We ought to take it. If we deny the cert, you’ll have every J.P. in the country issuing warrants on psi. Cf. Godwin. It’s a return to the general warrants of eighteenth-century Britain, q.v. We had a little revolution about that. Madison, Federalist Papers. The Bill of Rights, Madison, op. cit., would be down the drain. In a few years we’ll get a hundred petes for cert on the same point. Ibid. The time to stop it is now.”

  ”Mr. Randolph?”

  Justice Randolph spoke on all occasions with slow incision, as though dictating, direct to the stone cutter, immortal inscriptions for the entablature of a majestic new federal building. He clipped:

  *CONSTITVTIONAL*QVESTION*

  And then was gloomy because the first word, under the circumstances, was possibly superfluous. His law clerks always conferred with those of Justice Lovsky, fitting, with consummate artistry, Lovsky’s footnotes to Randolph’s headnotes. The result read like pages in Corpus Juris Tertium. This procedure required that the justices always agree; they found this a small price to pay for the exquisite result.

  ”Mr. Edmonds?”

  ”Isn’t it a strange coincidence? Here we are in the opening months of nineteen eighty-four.” He tossed a book on the table. “It’s Orwell’s Nineteen Eighty-Four-- the ultimate regimented state. All citizens under police surveillance twenty-four hours a day. No privacy at any time. The police have even installed closed-circuit TV in homes and apartments. When this book was popular, forty years ago, many people laughed. It was absurd. It couldn’t happen in America. Well, it has happened. It’s here now-- except clairtapping is even worse than spy TV. It penetrates the privacy of our minds. We must deny its use to the police.”

  ”You sound as though you really believe in this stuff,” said Godwin.

  Edmonds shrugged.

  ”Thank you, Mr. Edmonds. Madam Nord?”

  ”My argument for granting certiorari will, I think, seem totally incompetent and irrelevant to most of you. And I expect that my distinguished brother, the Senior Associate Justice, may have a stroke. In a word, I think Tyson is innocent. Also, I think we ought to open the safe.”

  There was an embarrassed silence.

  Then came Oliver Godwin’s stage whisper: “Don’t knock it, boys. Never forget, we’re the only high court in the world with our own Madam.”

  Helen Nord led the laughter.

  The Chief Justice rapped the table with his knuckles. “We will vote. Madam Nord?”

  ”To grant.”

  The vote went backwards,
in inverse order of seniority. The theory, which seemed utterly fallacious to Edmonds, was that the junior justices would thereby not be influenced by their seniors. In this group, he thought, nobody influences anybody. Nine sovereign independent republics.