The public — jammed not only into the courtroom, but into all the corridors of the building as well, and in the doorways, stairwells, windows, down the steps, out into the street and onto the lawns of the Methodist Building and the Library of Congress — takes the news with mixed feelings. Apparently the Rosenberg lawyers have not been persuasive enough to convince the Court, or they’d have said so; the delay is most likely just to give the old fellows time to work up a few eloquent touches to their decisions, something to be remembered by in Bartlett’s Quotations. Also, let’s face it, the delay heightens the drama, and as long as everything turns out well in the end, that’s probably a good thing, makes everybody feel more alive. Okay, but the troubling thing is, it should have been easier than this. No matter what happens tomorrow, Uncle Sam has plainly lost this night to the Phantom! Though the day is warm and the sun though lowering still high in the sky, a faint shudder passes through the crowd as they drift away from the Court, not together toward Times Square as they’d hoped and planned, but separately toward their own private executions, slow, but inexorable; uncelebrated. Alone in the dark, tonight anyway. With the Phantom loose in the world. Scary…. By the time Uncle Sam staggers, bruised and bedraggled, into the courtroom, it is empty. The drapes have been pulled and dust floats sullenly in the beams of afternoon sunlight.
The weary Superhero slumps heavily into a pew at the back of the room, lifts his feet, stretches his legs out in front of him. “Ah well,” he groans, his voice echoing like a hollow wind through the empty marble halls, “no gains without pains. Like the man says.” There are holes in the soles of his boots, and a soft caved-in look through his cheeks. “A wise man,” he murmurs, tipping his plug hat forward over his nose, leaning his head back, “don’t try to hurry history…” His eyes close. He yawns, chuckles wryly to himself under the plug hat. “Everything human,” he sighs, “is pathetic…”
A husky broad-shouldered man in laced-up walking boots emerges from the back rooms, pulling a cloth windbreaker on over an old sweater. “Where ya goin’, Bill?” asks Uncle Sam coldly from under his hat.
“Out to walk the canal towpath. Want to come along?”
“Naw. Too bushed. I been working my ass off, you perverse sonuvabitch. The blisters on my heels are so big it hurts when I bend my elbows, I got tank treads up my spine both front and back, and I’m so dadblame hungry my belly thinks my throat’s been cut!”
“Well, come on then. Maybe we can make it up to the little store that sells that home-smoked country sausage before it closes…”
“That goddamn towpath of yours — I got half a mind to concrete it over and make a six-lane highway out of it, damn you! I’d go do it tonight, if I wasn’t so bodaciously whacked. Why’d you do this to me, Bill?”
“Well, the law…”
“To hell with that. You been voting with us in this case all along, I thought maybe you were coming around at last, why’d you go and blow it like this? Eh? Why’d you get us in this mess? Has Hugo been working on you again?”
“No…”
“That miserable tote-road shagamaw, he still can’t get over his days of whooping it up in the Ku Klux Klan back when they was still hanging coons, he’s a incurable overcompensator. Don’t let him make a fool out of ya, Bill!”
“Hell, he’s got nothing to do with it,” says Douglas flatly.
“The eccentric sonuvabitch, he’s even trying to boycott the executions by sneaking off to the hospital,” grumbles Uncle Sam from under his hat. He feels through his coat pockets for his corncob pipe. “If he ain’t careful, he might not come out again!”
“I tell you, Sam, it’s a matter of law…”
“My ass. You’re not gonna get away with it, you know.” Douglas sighs and shrugs his shoulders, glances up at the old clock dangling like an antiquated fob watch over the bench. “Like Mr. Dooley says, ’No matther whether th’ Constitution follows th’ flag or not, th’ Supreme Coort follows th’ iliction returns.’ You may have sunk our show for tonight, but your buddies are gonna have you shovelin’ shit tomorrow, boy!”
“Maybe…”
“No maybe about it. If they were ever gonna stick by you on principle, they’d of done it today. No, it’s time to pay up and look pretty — they’re gonna stomp all over you, Billy.”
“If they do, they’re wrong. The cold truth is that the death sentence may not be—”
“Ain’t no such thing as cold truth, hoss…” He finds the pipe, peers squint-eyed into the bowl from under the brim of his plug hat.
“—may not be imposed for what the Rosenbergs did unless a jury so recommends.”
“Huh!” Uncle Sam snorts, and sucks on his empty pipe. “Who says?”
“It’s a law too elemental for citation of authority, Sam, that where two penal statutes may apply — one carrying death and the other imprisonment — the Court has no choice but to impose the less harsh sentence.”
“That ain’t my Court you’re talkin’ about — damn it, Billy, you’re as ornery as ever you was!”
“Well, I know deep in my heart I am right on the law.”
“Deep in your heart, hunh?” Uncle Sam lowers his feet, sits up slowly, pushes his hat back off his nose, squints up at Justice Douglas. “Well, the law and your bleedin’ heart be damned! Watch out, my friend, morality is a private and costly luxury. Like your pal Felix says, ‘Courts ought not to enter this yere political thicket!’”
“Brer Rabbit had an answer to that one, Sam,” replies Douglas with a wry grin.
Uncle Sam finds some tobacco and stuffs it in the bowl of his pipe. “Fergit Brer Rabbit and remember the Prophets, my boy: ‘There is no good in arguin’ with the inevitable. The only argument available with a east wind is to put on your overcoat.’” He scratches behind his ear and withdraws a wooden match. “I’m tellin’ you plain, mister,” he says, holding the match up like a pointer, “them two traitors is gonna—” He strikes the match down Douglas’s pantleg, but it fails to light. He stares at it, dumfounded. “What the hell—!” He strikes it on his own pants: “Are gonna—” This time the head falls off. “Tarnation. Musta got it wet in Wonsan Harbor…uh…hey, Billy, ya got a light?”
Douglas tosses a packet of safety matches with a Smokey Bear warning on them down to the American Superhero. “Speaking of traitors, that’s another thing that’s been bothering me: this conspiracy law. I mean, using it to give somebody a harsher penalty than you could give him if you convicted him of the crime itself, or using it to get around—”
“Harsher penalty! Hell, man, this is treason!”
“Yeah, I know, everybody from the Judge and Prosecutor to the FBI and that goofy knuckle-headed Incarnation of yours keeps repeating that — but the Constitution says: ‘No person shall be convicted of treason unless on the testimony of two witnesses to the same overt act, or on confession in open court.’ No act in this entire case involving the Rosenbergs has been corroborated by a second witness, Sam, and they have not confessed!”