Chapter 11: The Chief Justice

Scene 1

The letter from Colonel McHenry arrived on a Thursday, folded with care, and Taney did not open it at once. He set it on the corner of the writing desk and returned to the window, where frost had worked its way inward along the casement, each crystal a small, precise argument for the season. Frederick lay grey and still below. A carter moved his horses toward the mill, their breath dissolving in brief white plumes against the cold. Taney watched them until they were gone.

He was not well. He had not been well since September, when the intestinal complaint had returned with the patience of a creditor certain the debt will be honoured in time. The fire had been burning since before dawn, but the warmth stopped at the surface of things — at the wool of his coat, at the skin of his hands — and went no further.

He opened McHenry's letter.

It was thorough. Three pages in a close hand, every sentence a delivery of bad intelligence, the severity mounting as he descended the page. Webster had been seen at Clay's rooms the previous Tuesday. Three senators whose votes had been considered reliable were now described as wavering. The Committee of Ways and Means would move to open the confirmation debate before the month was out. Then the particulars: the veto message's doctrine of coordinate review, characterised without euphemism as constitutional heresy; the deposit removal, to be placed before the Senate as executive usurpation; and the rejection of June 1834, which would be read into the record as proof that the upper chamber had already rendered its judgment on Roger Brooke Taney's fitness for high office.

He read it twice. The second reading was slower — not because he required the additional time, but because the principle, properly understood, demanded that a man look steadily at the thing he intends to answer before he answers it.

He heard Anne on the stairs — her step distinct, unhurried, the tread of a woman who had learned to move through a house in which bad news arrived with regularity and required no theatrical acknowledgment. She came in carrying a second letter, held close against her body.

'This came with the morning post,' she said. 'The seal is the General's.'

He took it. The handwriting was Jackson's — that particular forward lean, the tremor in the downstrokes worsened since the spring. Inside, a single line:

I have kept my promise. Now keep yours.

Anne stood near the fire, her hands folded before her, the firelight moving across her face.

'Roger,' she said. Only that.

He turned to the desk. His right hand shook as he reached for the pen; he brought his left hand across and steadied the writing wrist against the desk's edge until the tremor subsided. Then a cramp seized him low in the bowels, sudden and clenching, and he set the pen down and gripped the desk's edge and breathed through his teeth until it passed.

He picked up the pen again.

'The Committee moves before the month is out,' Anne said. She had read McHenry's letter — he had not told her she might, but he had not folded it, and she was Anne. 'Webster and Clay together. Three votes uncertain.' A pause in which the fire shifted and settled. 'You are not well enough to go to Washington.'

'I am not well enough to remain in Frederick,' he said.

'Roger.' Her voice was different now — stripped of its careful management. 'If you go to Washington and the vote fails, you will have gone ill and come home defeated. The physicians have not cleared you for travel. I have read what they wrote.'

He dipped the pen. 'Then you have read more than I asked you to.'

'You left it on the desk.'

He looked at the nib. A drop was forming at its tip, threatening the paper. He held it steady over the inkwell until the drop fell back. Then he set the pen down entirely and turned in his chair to face her.

'Anne.' He held her gaze. 'If I remain in Frederick, Webster carries Brown before Thursday, and Brown carries the others, and the thing is finished before it has been properly contested. I will not let it end that way. Not after what it cost.'

She did not answer at once. The fire shifted. The creak of the board near the casement — the one that had needed attending since autumn — sounded once as she moved her weight.

'I know,' she said, at last. 'I know what it cost.'

He turned back to the desk. He dipped the pen, and this time he wrote.

When he had finished and sanded the page, she was at the window, her back to him, looking out at the grey road where the carter had gone.

He wrote his acceptance.

---

Scene 2

The upper gallery was full by half past nine, the benches packed so close that winter coats pressed against Taney's arms on either side, warm and faintly damp, the exhalations of two hundred spectators rising toward the coffered ceiling. Below, the Senate chamber arranged itself in its familiar geometry — curved rows of desks, the presiding officer's chair elevated at the chamber's head, the galleries on three sides holding the republic's citizenry in a posture somewhere between tribunal and theatre. Someone had left a window insufficiently latched; it ticked against its frame in the draught.

Clay rose at eleven.

The room did not fall silent — it contracted. Conversations concluded themselves in lowered voices, heads turned, and the murmur subsided into attention. Henry Clay of Kentucky did not require silence. He required only that a room understand he was prepared to fill it.

Taney fixed his gaze on a hairline crack in the stonework above Clay's head, running diagonally from a pilaster's capital toward the cornice. He had noted it upon entering. It would hold his eyes now.

'The Senate is asked,' Clay began, his voice carrying to the gallery's highest row without apparent effort, 'to confirm to the highest judicial office in this republic a man whose principal distinction is his willingness to execute the orders of the executive against the expressed will of this body and against the settled determinations of the very Court he is now proposed to lead.'

A murmur ran through the galleries. Clay let it spend itself.

'It must be observed — and I speak not to impugn the private character of the nominee, which has never been my purpose — that Mr. Taney is a man of considerable legal attainment, which renders what he has done and written the more alarming rather than the less.'

Taney's right hand, resting on his knee, slowly closed into a fist. Then, finger by finger, he opened it and laid it flat. He would not close it again. He would not give Clay even that.

Clay produced the paper. He held it before him with the ease of one who has no further need of its contents.

'The President,' he read, his voice dropping into the deliberate cadence of quotation, 'is independent of both the Senate and the House as to his interpretations of the Constitution. The authority of the Supreme Court must not, therefore, be permitted to control the Congress or the Executive, when acting in their legislative capacities.' He paused. 'These words were written by the nominee. And this Senate is now asked to elevate their author to sit in judgment upon the very instrument he has claimed the right to construe without reference to the Court's authority.'

A cough seized Taney without warning — the damp air had been working at him since morning — and he pressed his handkerchief to his mouth, his shoulders drawing inward with the effort of suppression, fighting it down through four, five seconds until it subsided. The man two seats to his left drew fractionally away with the small, instinctive courtesy of one who has decided not to notice.

Clay had not paused.

'The principle, gentlemen, if principle it may be called, cuts in every direction. If the President need not defer to this Court, why should this Court defer to the Congress? Grant Mr. Taney his doctrine, and you have granted every branch the right to construe the Constitution according to its own convenience, its own appetite, its own political interest of the moment. You have not made three co-equal branches. You have made three sovereigns.'

The murmur that followed was different. Lower. Distributed differently. Taney tracked it by ear — it was moving through the Democratic benches, not only the Whig, and that was the fact that mattered.

He kept his gaze on the diagonal crack, its line ending in the cornice's plain surface without resolution. He was aware, at the edge of his attention, of Thomas Hart Benton on the chamber floor — a broad, still figure among the Democratic seats — and aware that Benton had not turned to look up at him.

Clay's voice rose for his peroration. 'The Senate rejected this man once. It did so upon grounds that have not diminished in the interval but multiplied. I ask only that this body remember what it knew eighteen months ago, before the composition of its membership was altered to suit the convenience of those who found that knowledge inconvenient.'

He sat.

The gallery exhaled.

Taney remained where he was, palms open on his thighs. Below, in the moment Clay read the passage aloud, he had seen two Democratic senators lean fractionally toward one another. Not away. Toward. And in the row behind them, a third had set his pen aside and folded his hands on the desk with the deliberate stillness of someone who has resolved to wait before committing himself to any posture.

That was Bedford Brown.

He recognised it the way a man who has spent his life constructing arguments recognises when the mortar is still wet. The murmur after three sovereigns had not been the murmur of men persuaded; it had been the murmur of men not yet certain they were not. Brown's folded hands were not a refusal. They were an invitation to be convinced, and Webster's people would be at his lodgings before the afternoon session concluded.

The vote would not be today. Taney rose from the bench, excused himself past the packed shoulders on either side, and descended the stair before the next senator could rise to speak.

---

The anteroom held no fire. Someone had meant to lay one — the grate was set with kindling, a birch log balanced across the andirons — but the tinder had not been struck, and the cold had settled as cold does in small rooms, not as moving air but as a property of the walls themselves. Taney kept his coat on.

Benton arrived without knocking. He was a large man and the anteroom diminished around him. He set his hat on the window ledge and did not sit.

'Brown,' he said.

'I saw him. From the gallery.' Taney moved to the unlaid grate and crouched before it, taking the tinderbox from the mantelshelf. 'He set his pen aside when Clay read the passage.'

'You saw that from the gallery.'

'I saw it.' He struck the tinderbox once, twice — the third strike caught, and he nursed the flame into the kindling with cupped hands, feeding it until the birch log caught and the warmth became a fact. He rose and turned. 'How many uncommitted beyond Brown?'

Benton's voice was a low, unhurried instrument, tuned by decades for carrying intelligence across distance without heat. 'Bedford Brown of North Carolina. Webster's people reached him this afternoon — a functionary named Forsythe — sat with him for better than an hour on F Street.' He paused. 'Brown owes the General a debt from thirty-two. Nullification. Jackson intervened personally on a matter touching his district, saved him an embarrassment before his legislature. Brown has not forgotten it. But Webster's people are telling him that the time for old debts has passed — that a man of his standing need not bind himself to a nomination this chamber rejected eighteen months past.' Benton said standing with the flat inflection of one who finds dignity, as a political currency, somewhat overvalued. 'They are telling him that voting against you costs him nothing and voting for you costs him the friendship of every Whig committee chairman he will need for the next six years.'

'The others.'

'Two. Both softer. Brown is the one who matters. If he goes, the others have their excuse.'

'And the General. You have seen him.'

Benton's expression did not alter, but he shifted his weight and looked briefly at the fire, which was now burning with some conviction. 'He received me, but the session was short. Van Buren was there, managing the room. Jackson spoke clearly enough, but his colour—' He did not finish the sentence. 'The physicians are not saying what they are thinking, which is itself a kind of statement.'

'The vote. When does the Committee intend to call it?'

'End of the week, if Clay can hold his coalition. Webster wants it sooner — he told Poindexter this morning that delay serves only the Democrats.' Benton's eyes had sharpened. 'If Brown goes to Webster before Thursday, the others follow, and you will not have the numbers.'

Thursday. Four days. If Brown committed to Webster tonight, the count was finished before it had properly begun, and Taney would return to Frederick having gone ill and come home defeated, and Anne would say nothing, which would be worse than anything she might have said.

He set both hands flat on the table. 'Can you reach Donelson without going through the physicians?'

'I can.'

'Then do so tonight. Tell him I require a letter from the President to Senator Brown. Personal, not official. One paragraph. Jackson need only sign it — Donelson can draft the language if the General is not equal to the composition.' He held Benton's gaze. 'Before Webster's man reaches Brown again.'

Benton looked at him steadily. 'You understand what you are asking. If the General's condition is worse than reported and this letter becomes known — the timing, the circumstances — Clay will use it on the floor. He will say the executive is reaching from a sickbed to purchase a confirmation vote.'

'Clay will say whatever serves him whether we act or not. Brown must have the letter before he breakfasts tomorrow. Proceed tonight.'

Benton took his hat from the window ledge and turned it once in his large hands.

'There is one thing more,' he said. 'Forsythe — Webster's man — was seen this morning at the offices of the National Intelligencer. He carried a document case in. He did not carry it out.' Benton's gaze was level. 'If there is anything in the record of the removal order — any correspondence, any memorandum in your hand that Webster has not yet placed before the Senate — you should know of it before Thursday.'

The cold pressed at the back of Taney's neck where his collar had loosened during the session above.

'There is nothing,' he said, 'that has not already been read into the record.'

'Then we proceed as discussed.' Benton set his hat and went out.

The fire was burning now, its warmth beginning to reach the room's corners. Taney stood at the table and listened to Benton's footsteps recede. Then he put on his hat and went out after him.

---

Scene 3: The Vote

The clerk's voice had no particular quality to it — a municipal sound, competent and unvaried, naming each senator in the order the roll demanded. The chamber below was warmer than it had been in January — a suggestion of spring in the tallow-smell, in the slight ease of wool-clad men who had ceased to hunch against the cold. The upper gallery was full. Women in the tier above the railing made a row of pale ovals. Someone nearby smelled of pipe tobacco and perspiration. No one spoke.

Taney sat where he had sat six weeks before, but the occasion was not the same occasion, and he did not permit himself to pretend otherwise. Below, Clay's silver head was motionless above the rigid set of his shoulders. He had made his speech. What remained was the count, and Clay knew it, and the knowledge had settled into his posture like a weight he had been carrying since morning.

Aye. Then again: Aye. The word accumulated with the regularity of a slow drop from a leaking roof.

He had no fixed point to study today — the diagonal crack was behind him now, on the wrong wall — and so he kept his eyes on the presiding officer's desk and counted without moving his lips. He had only his hands, flat against his legs, and the clerk's voice, and the knowledge that if Brown's name produced a nay, the two softer votes would follow within the hour and the thing would be done.

Nay. Preston. Nay. Poindexter. Each refusal landed with its own small weight.

Brown's name was called.

The pause was not long. Three seconds, perhaps four.

Aye.

He did not permit himself anything. Not the easing of a muscle, not the release of air. He kept his hands where they were and waited for the remaining names to be discharged until the clerk set down his paper and the presiding officer spoke the tally aloud.

Twenty-nine to fifteen.

The upper gallery broke into sound — not quite applause, the chamber's dignity still restraining it — a general exhalation, a shifting of bodies. Benton, below on the Democratic side, turned in his chair and looked up.

Taney inclined his head. Once.

Webster rose without waiting for the chamber to settle. He gathered his papers with the economy of someone prepared to depart since before he arrived, and walked toward the aisle with his back straight and his face composed into an expression that conceded nothing — not fury, not defeat, not even the formal acknowledgment that he had been present for an adverse result. He did not look toward the upper gallery. He did not look toward Clay. He walked to the door, and the sound of it closing reached the upper gallery a half-second after he had passed through.

Clay remained in his seat. He understood the theatre of stillness — knew that rising too soon conceded more than the vote itself. But his hands, Taney observed, lay open on the desk before him, the fingers slightly spread, as a man's hands lie when he has relinquished something he had been carrying for a long while.

Taney looked at the presiding officer's desk, where the clerk was already entering the tally in the journal — in ink that would not wash out.

He rose. The women in the upper tier shifted their bonnets to follow him, and he descended the stair into the corridor below, where a boy was waiting with his coat and hat and the intelligence that a carriage had been arranged. He put on the coat. He put on the hat. He did not ask who had arranged the carriage.

Outside, the March air was raw and smelled of the river. He stood on the Capitol steps for a moment before descending. Somewhere in the city, Clay was still in his seat. Somewhere, Webster was walking fast — the kind of walking that has somewhere specific to arrive, business that will not wait and cannot be conducted in a chamber where he has just been defeated. And Webster, who had not looked at Clay, who had not looked at the upper gallery, who had conceded nothing by so much as a glance — he had not been walking away. He had been walking toward something. The document case Forsythe had left at the Intelligencer and not retrieved — whatever it contained, it was still out there, and a man who walks that purposefully from a defeat is not a man who has accepted the verdict.

The carriage was at the foot of the steps. Taney descended and got in.

---

Scene 4: The Chamber

The Supreme Court occupied the Capitol's lower storey with the deliberate modesty of a room that had never expected to become what it was. Low vaulted ceilings. Columns of modest proportion. A single lamp, left burning on the long table by some clerk who had expected the incoming Chief Justice might wish to see the place before morning made it official.

Taney entered alone.

He stood near the entrance and let his eyes adjust. The lamp's flame stood straight in the still air, illuminating the table, the bench, the arc of the associate justices' seats, and leaving the gallery and columns in a darkness not quite absolute. The cold came as a settled thing — not moving, simply present, as cold is present in stone that has not been warmed since autumn. Old paper. Old wood. The exhalation of a room where argument had been conducted for decades and the arguments had accumulated in the walls like sediment.

He had argued before this bench in other years, other capacities — had stood at the bar and constructed his periods for men who sat where he would now sit. The geometry of the room reversed itself in his mind, slowly, the way a figure in a mirror is recognised as oneself only after a brief, disconcerting interval.

He moved to the centre of the bench.

John Marshall's chair had stood empty since July — eight months in which the Court had conducted its necessary business from the associate positions, the centre seat conspicuous in its vacancy. He put his hand on the back of it. The wood was cold against his palm, cold enough that he felt the grain through the skin, the slight ridges left by decades of handling, the places where Marshall's hands had worn the finish away until the oak beneath showed through.

He sat.

The chair was slightly lower than he had expected.

He sat with that for a moment — the slight wrongness of it, the way the room presented itself from this height, the lamp flame steady at the edge of his vision. Then the wrongness receded, and the room remained, and it was simply the room, and he was simply in it, and the weight of what that meant settled over him with the unhurried gravity of the cold itself.

Marshall had sat here for thirty-four years. Had written McCulloch from this chair — had written, with the serene authority of one who believed the question settled, that Congress possessed the power to charter a bank and that no state might obstruct what the federal government had lawfully created. Taney had spent four years arguing against that authority, fashioning the instruments of its defeat. He had done so in the name of the people and of the Constitution and of Andrew Jackson, and he had not been wrong to do it.

But the chair was here.

He breathed. The lamp flame did not move. Somewhere above him, the night watch was making his rounds, and the fires in the committee rooms were burning low, and the journal of the Senate was drying in the clerk's office with the tally of twenty-nine to fifteen set down in its permanent column. He had won. He was here. The Bank's federal charter had expired this same month, and the republic had not fallen, and he was here.

He thought of the doctrine.

Not as argument — he had made the argument, and it had held, and the time for argument was past. He thought of it as a structure, the way an engineer thinks of a bridge once it stands, examining from the far bank what his own hands have raised. The principle was sound. Each branch of the government stood in direct relation to the Constitution; each officer swore his oath to the instrument itself, not to another branch's reading of it. The President was not bound by the Court's determinations. He had written it, and it was true, and it had served.

But the bridge ran in both directions.

If the President may disregard the Court's construction of what Congress may enact —

He did not finish the thought in words. He let it stand as a shape in his mind, the way a proposition stands before it is spoken, when it is still only a pressure, a direction, a weight bearing upon one side of a scale.

The territories. The question of what Congress might legislate in the territories — who might inhabit them, under what conditions, with what standing before the law — had not yet arrived at this bench as a matter requiring resolution. The pressures were there; he had felt them for years, in the silences of political conversation, in the careful imprecision of compromise language, in the way men of good sense spoke around the subject as though naming it directly might cause the floor to give way beneath them. Those pressures did not resolve themselves. They accumulated. They found their form, eventually, in writs and briefs and the dockets of the circuit courts, and when they did, they would arrive here.

And here, the doctrine he had fashioned to restrain the Bank's champions from using the Court as a permanent shield against democratic correction — that same doctrine, seated in this chair, applied not against executive overreach but against an act of Congress — would say something he had not intended it to say.

A draught from the basement corridor guttered the lamp, and Taney bent over the table and cupped his hand around the glass, hunching against the sudden darkness, his breath fogging the air above the flame until it steadied and held.

He straightened.

He had built the instrument. He had not yet determined what it would be used to construct.

He rose from the chair.

He stood with his back to the bench, facing the columns and the dark. He was fifty-nine years old. He had been rejected by this Senate and confirmed by this Senate and he had coughed through Clay's speech and steadied his pen against the tremor in his wrist and written his acceptance in Frederick while Anne stood at the window with her back to him and said nothing. He had done all of this in the service of a principle he believed to be true, and the principle was true, and he was here.

He took up the lamp. He looked once more at Marshall's chair. Then he carried the light to the clerk's table to set it down before leaving — and stopped.

Beneath where the lamp had stood lay a folded paper he had not noticed upon entering. The direction was in a hand he knew: the same forward lean, the letters larger and less controlled than they had been in January, written against the resistance of a body that was losing its argument with time.

He broke the seal.

Inside, a single line:

They will come for the doctrine next. Be ready.

He read it twice. He turned the paper over. The reverse was blank.

He folded it and placed it inside his coat.

He did not know whether Jackson had written this before the vote or after, whether it was counsel or command or the last coherent thought of a man who felt his time running short and wished to spend it usefully. He did not know whether they meant Clay and Webster, who had already come and been turned back, or whether it meant some future adversary who had not yet taken the field — whose approach Jackson had somehow reckoned from his sickbed with the instinct of fifty years spent reading the ground ahead for ambush.

He extinguished the lamp.

The dark was immediate and complete. He felt for the wall with his free hand — cold plaster, faintly damp — and moved by memory toward the door. His footsteps were the only sound in the chamber. Behind him, in the dark, Marshall's chair stood empty at the bench's centre.

He found the door. He opened it. The corridor light fell across the threshold, and he stepped through.

He stopped.

At the far end of the corridor, just rounding the corner toward the Capitol's east stair, a figure moved — a man in a dark coat, carrying a document case, walking with the purposeful economy of someone who had concluded his business and wished not to be observed concluding it. The figure did not look back. In three seconds it was gone, and the corridor was empty, and the only sound was the distant percussion of the night watch's boots on the floor above.

Forsythe. Or a man doing Forsythe's work. The same case Benton had described — carried into the Intelligencer and not carried out — carried out now, from somewhere in this building, at this hour, the night before Taney was to be sworn.

He took three steps into the corridor. The corner was twenty yards distant. He stood and looked at it.

Whatever that case contained, it had already left the building. Webster had not walked from the Senate chamber this afternoon as a man who had accepted the verdict. He had walked with his gaze already fixed on different ground — something else in motion, a next move committed to before the tally was read aloud. The vote was not the end of this. The vote was the point at which the contest moved to different ground.

He thought of Jackson's note, folded against his ribs. They will come for the doctrine next. Not Clay and Webster — they had come already, and been turned back, and the man carrying that case was not retreating. He was repositioning. Whatever was in the case, it was not a record of defeat. It was the opening of a new approach, and the approach would not announce itself until it was ready, and by then the ground would have shifted in ways that a night's vigil in an empty corridor could not prevent.

Taney set his jaw and went toward the east stair. He had a clerk to find, an oath to prepare for, and a chair that was slightly lower than he had expected — which was, he supposed, how such things always were. The morning would require him to be Chief Justice of the United States. He would be ready for what came after.