# Rosenberg v. United States (346 U.S. 273)/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
* Dissenting Opinions Black Frankfurter Douglas
United States Supreme Court
346 U.S. 273
Rosenberg v. United States (346 U.S. 273)
A Special Term of the Court was convened upon the Attorney General's application to review a stay of execution in this case, issued by Mr. Justice DOUGLAS.
Our action was unusual. So were the circumstances which led to it. The Court's action should be considered in the context of the full history of the proceedings which have marked this case.
On August 17, 1950, the defendants were indicted for conspiring to commit espionage in wartime, in violation of the Espionage Act of 1917, 50 U.S.C. §§ 32(a), 34. After a lengthy jury trial they were found guilty, and on April 5, 1951, they were sentenced to death. Upon appeal the Court of Appeals affirmed. A petition for rehearing was denied.
A petition for certiorari was filed here. It was denied on October 13, 1952. A petition for rehearing was filed October 28, 1952. It was denied on November 17, 1952.
One week thereafter, a motion was filed in the District Court under § 2255 of the Judicial Code, 28 U.S.C. § 2255, 28 U.S.C.A. § 2255, to vacate the judgment and sentence. That motion (hereafter called the first § 2255 motion) did not challenge the power of the District Court to impose the death sentence. It was denied. The Court of Appeals affirmed. A petition for rehearing was denied. Certiorari was again sought here, and denied on May 25, 1953. The stay entered by the Court of Appeals was vacated by this Court on the same date. On the same day, a petition for a stay, pending the consideation of a petition for rehearing, to be filed by June 9, 1953, was denied by The Chief Justice. A petition for rehearing was filed and was pending during the last week of the 1952 Term of the Court, the adjournment of the Term having been announced for June 15, 1953.
In the meantime execution of the sentence was set for the week of June 15th by the District Judge, and two further motions under § 2255 to vacate judgment and sentence were denied in District Court, one on June 1, 1953 and another on June 8, 1953. Those denials were affirmed by the Court of Appeals on June 5 and June 11, 1953, respectively.
In addition to those two motions under § 2255, a petition was also presented to the Court of Appeals asking that a writ of mandamus be issued, directing the sentencing judge to resentence the defendants. On June 2, 1953, the Court of Appeals denied relief by way of mandamus. Thus, as of June 12, 1953, three decisions had been entered by the Court of Appeals is collateral attacks upon the sentence, all three attacks having been instituted by the defendants after our denial of certiorari on May 25, 1953, as to the first motion under § 2255.
On June 12, 1953, an application for a stay or execution was filed with the Clerk of this Court and presented to Mr. Justice Jackson, the appropriate Circuit Justice. This stay was requested to enable the Rosenbergs to seek review of the three most recent decisions of the Court of Appeals 'within the time ordered by the applicable statute.' Mr. Justice Jackson referred this application to the full Court, with a recommendation that oral argument be heard on it. On June 15, 1953, the last session of the 1952 Term, the Court declined to hear oral argument on this application and denied the stay. The pending petition for rehearing as to the May 25, 1953, denial of certiorari, was also denied. Thus the Court had in effect, disposed of all collateral attacks upon the sentence then pending in the courts-as to the first § 2255 motion by adhering to its original denial of certiorari and as to the three subsequent decisions of the Court of Appeals in the further collateral proceedings by denying a stay, a decision which showed that the Court saw no substantial question in those proceedings to be preserved for its further consideration.
Just a moment before adjournment of the 1952 Term, a petition for an original writ of habeas corpus, including a request for a stay, was presented to the Court. On account of the imminence of the execution, counsel urged immediate action. They were advised that prompt consideration would be given to the application. The Court met in Special Term on the afternoon of that day and denied the application. The Special Term was then adjourned.
Late on June 15, 1953, counsel for the defendants applied to Mr. Justice DOUGLAS for a stay. On June 16, 1953, counsel representing one Edelman, who described himself as 'next friend' to the Rosenbergs, presented to Mr. Justice DOUGLAS a petition for habeas corpus. That petition included a prayer for a stay. More than two months before their appearance before Mr. Justice DOUGLAS, Edelman's attorneys had asked counsel for the Rosenbergs to raise the very question which they urged upon Mr. Justice DOUGLAS. The argument was not adopted at that time by counsel for the defendants. In this recitation of facts, we do not hold in this case that a waiver of this claim precluded its consideration.
On the morning of June 17, 1953, Mr. Justice DOUGLAS denied the stay requested by counsel for the defendants, since it raised questions already passed upon by the Court.
Edelman's counsel raised the claim that the Atomic Energy Act of 1946, 42 U.S.C. § 1810(b)(2) and (3), 42 U.S.C.A. § 1810(b)(2, 3), superseded the Espionage Act and rendered the District Court without power to impose the death sentence. Mr. Justice DOUGLAS was of the opinion that this contention posed a substantial question; he denied the application for habeas corpus, but granted a stay, effective until the applicability of the Atomic Energy Act could be determined in the District Court and the Court of Appeals.
The Attorney General then applied to the Court, asking that we convene a Special Term of Court and vacate the stay. The Court was convened in Special Term on June 18 1953, Mr. Justice Black objecting.
Thus we were brought to this particular proceeding. The case was argued for several hours on June 18. The Court then recessed and deliberated in conference for several hours. During the next morning the Court held another conference, and then met at noon and announced its decision in a per curiam opinion. We vacated the stay.
Immediately following the announcement of this decision, counsel for the Rosenbergs moved for a further stay asking that the Court grant them an additional period in which they might seek executive clemency. Counsel for Edelman moved that the Court reconsider the question of its power to vacate the stay. After a recess and deliberation, the Court denied both motions, with Mr. Justice Black noting dissents, and Mr. Justice Frankfurter appending a separate memorandum to each order.
The Special Term was adjourned. Thereafter executive clemency was denied. The sentence of death was carried out.
We have recited the history of this unusual case at length because we think a full recitation is necessary to a proper understanding of the decision rendered. We proceed to discuss two questions of power: the power of Mr. Justice DOUGLAS to issue the stay; and the power of this Court to decide, in this proceeding, the question preserved by the stay and the vacation of the stay.
Mr. Justice DOUGLAS had power to issue the stay. No one has disputed this, and we think the proposition is indisputable.
Stays are part of the 'traditional equipment for the administration of justice'. Scripps-Howard Radio, Inc., v. Federal Communications Commission, 1942, 316 U.S. 4, 9-10, 62 S.Ct. 875, 880, 86 L.Ed. 1229. The individual Justices of this Court have regularly issued them, and the exercise of that power is vital to the proper functioning of our jurisdiction.
Confronted with the question of the applicability of the Atomic Energy Act, Mr. Justice DOUGLAS wrote:
'I have serious doubts whether this death sentence may be imposed for this offense except and unless a jury recommends it. The Rosenbergs should have an opportunity to litigate that issue.
'I will not issue the writ of habeas corpus. But I will grant a stay effective until the queston of the applicability of the penal provisions of § 10 of the Atomic Energy Act to this case can be determined by the District Court and the Court of Appeals, after which the question of a further stay will be open to the Court of Appeals or to a member of this Court in the usual order.' After hearing argument on this question we did not entertain the serious doubts which Mr. Justice DOUGLAS had.
We turn next to a consideration of our power to decide, in this proceeding, the question preserved by the stay. It is true that the full Court has made no practice of vacating stays issued by single Justices, although it has entertained motions for such relief. But reference to this practice does not prove the nonexistence of the power; it only demonstrates that the circumstances must be unusual before the Court, in its discretion, will exercise its power.
The power which we exercised in this case derives from this Court's role as the final forum to render the ultimate answer to the question which was preserved by the stay.
Thus Mr. Justice DOUGLAS, in issuing the stay, did not act to grant some form of amnesty or last-minute reprieve to the defendants; he simply acted to protect jurisdiction over the case, to maintain the status quo until a conclusive answer could be given to the question which had been urged in the defendants' behalf. In the exercise of our jurisdiction to decide the question which was preserved for decision, it lay within our power to bring the new claim before us and examine its merits without further delay. In considering this question the Court carried out the limited purpose for which Mr. Justice DOUGLAS issued the stay.
The existence of our power was clear, and so also, we think, was the necessity for its exercise. Yet it was urged at argument that the Court, as a matter of discretion if not of power, should refrain from immediately deciding the merits of the issue which had been preserved by the stay. Indeed, the reasons for refusing, as a matter of practice, to vacate stays issued by single Justices are obvious enough. Ordinarily the stays of individual Justices should stand until the grounds upon which they have issued can be reviewed through regular appellate processes.
In this case, however, we deemed it proper and necessary to convene the Court to consider the Attorney General's urgent application. Mr. Justice DOUGLAS denied the petition for habeas corpus. His grant of a stay called for initiation of a new proceeding in the District Court. It followed hard on the heels of our orders denying a rehearing, denying a further stay and denying a motion for leave to file a petition for habeas corpus in which a stay was requested. The stay issued by Mr. Justice DOUGLAS was based, of course, on a new claim-a question which had not been considered in any prior proceeding.
This Court has the responsibility to supervise the administration of criminal justice by the federal judiciary. This includes the duty to see that the laws are not only enforced by fair proceedings, but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty. The stay which had been issued promised many more months of litigation in a case which had otherwise run its full course.
The question preserved for adjudication by the stay was entirely legal; there was no need to resort to the fact finding processes of the District Court; it was a question of statutory construction which this Court was equipped to answer. We decided that a proper administration of the laws required the Court to consider that question forthwith.
This brought us to the merits. Our decision was summarized in our per curiam opinion. We held that the Atomic Energy Act of 1946 did not displace the Espionage Act. We held that this issue raised no doubts of such magnitude to require further proceedings before execution of the District Court's original mandate-a mandate which had been affirmed on appeal and sustained thereafter despite continuous collateral attack.
More complete statements of the reasons for our decision are set forth in the opinions of Mr. Justice JACKSON and Mr. Justice CLARK. We need not reiterate here, what has been said in those opinions. It is enough to add, that in our view, the ultimate decision was clear. Accordingly, we vacated the stay.
June 19, 1953.
PER CURIAM.
We convened a Special Term of the Court to consider an application by the Attorney General (1) to review the stay of execution of Julius Rosenberg and Ethel Rosenberg, granted by Mr. Justice DOUGLAS on June 17, 1953, or (2) for reconsideration and reaffirmance of this Court's order in No. 1, Misc., Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford L. Denno, Warden of Sing Sing Prison, June 1953 Special Term, 346 U.S. 271, 73 S.Ct. 1152, denying a stay.
The Acting Solicitor General agrees and we do not doubt that Mr. Justice DOUGLAS had power to issue the stay in these proceedings. There is no dispute that a stay should issue only if there is a substantial question to be preserved for further proceedings in the courts.
The question which has been and now is urged as being substantial is whether the provisions of the Atomic Energy Act of 1946, 42 U.S.C. § 1810(b)(2, 3), 42 U.S.C.A. § 1810(b)(2, 3), rendered the District Court powerless to impose the death sentence under the Espionage Act of 1917, 50 U.S.C. §§ 32(a), 34, under which statute the indictment was laid.
Although this question was raised and presented for the first time to Mr. Justice DOUGLAS by counsel who have never been employed by the Rosenbergs, and who heretofore have not participated in this case, the full Court has considered it on its merits.
We think the question is not substantial. We think further proceedings to litigate it are unwarranted. A conspiracy was charged and proved to violate the Espionage Act in wartime. The Atomic Energy Act did not repeal or limit the provisions of the Espionage Act. Accordingly, we vacate the stay entered by Mr. Justice DOUGLAS on June 17, 1953.
We are entering this order in advance of the preparation of full opinions which will be filed with the Clerk.
Stay vacated.
Mr. Justice FRANKFURTER is of opinion that the questions raised for the first time yesterday before the full Court by the application of the Attorney General are complicated and novel. I believe that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opporutnity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, I will set forth more specifically the grounds for this position.
By Mr. Justice JACKSON, whom Mr. Chief Justice VINSON, Mr. Justice REED, Mr. Justice BURTON, Mr. Justice CLARK and Mr. Justice MINTON join.
This stay was granted upon such legal grounds that this Court cannot allow it to stand as the basis upon which lower courts must conduct further long-drawn proceedings.
The sole ground stated was that the sentence may be governed by the Atomic Energy Act of August 1, 1946, instead of by the earlier Espionage Act. The crime here involved was commenced June 6, 1944. This was more than two years before the Atomic Energy Act was passed. All overt acts relating to atomic energy on which the Government relies took place as early as January 1945.
The Constitution, art. I, § 9, prohibits passage of any ex post facto Act. If Congress had tried in 1946 to make transactions of 1944 and 1945 offenses, we would have been obliged to set such an Act aside. To open the door to retroactive criminal statutes would rightly be regarded as a most serious blow to one of the civil liberties protected by our Constitution. Yet the sole ground of this stay is that the Atomic Energy Act may have retrospective application to conspiracies in which the only overt acts were committed before that statute was enacted.
We join in the opinion by Mr. Justice CLARK and agree that the Atomic Energy Act does not, by text or intention, supersede the earlier Espionage Act. It does not purport to repeal the earlier Act, nor afford any grounds for spelling out a repeal by implication. Each Act is complete in itself and each has its own reason for existence and field of operation. Certainly prosecution, conviction and sentence under the law in existence at the time of the overt acts are not improper. It is obvious that an attempt to prosecute under the later Act would in all probability fail.
This stay is not and could not be based upon any doubt that a legal conviction was had under the Espionage Act. Application here for review of the Court of Appeals decision affirming the conviction was refused, 344 U.S. 838, 73 S.Ct. 20, and rehearing later denied, 344 U.S. 889, 73 S.Ct. 134.
Later, responsible and authorized counsel raised, among other issues, questions as to the sentence, and an application was made for stay until they could be heard. The application was referred to the full Court, with the recommendation that the full Court hold immediate hearing and as an institution make a prompt and final disposition of all questions. This was supported by four Justices and failed for want of one more, Mr. Justice DOUGLAS recording his view that 'there would be no end served by hearing oral argument on the motion for a stay.' 345 U.S. 989, 73 S.Ct. 1151.
Thus, after being in some form before this Court over nine months, the merits of all questions raised by the Rosenbergs' counsel had been passed upon, or foreclosed by denials. However, on this application we have heard and decided (since it had been the ground for granting the stay) a new contention, despite the irregular manner in which it was originally presented.
This is an important procedural matter of which we disapprove. The stay was granted solely on the petition of one Edelman, who sought to appear as 'next friend' of the Rosenbergs. Of course, there is power to allow an appearance in that capacity, under circumstances such as incapacity or isolation from counsel, which make it appropriate to enable the Court to hear a prisoner's case. But in these circumstances the order which grants Edelman's standing further to litigate this case in the lower courts cannot be justified.
Edelman is a stranger to the Rosenbergs and to their case. His intervention was unauthorized by them and originally opposed by their counsel. What may be Edelman's purpose in getting himself into this litigation is not explained, although inquiry was made at the bar. It does not appear that his own record is entirely clear or that he would be a helpful or chosen champion. See Edelman v. People of the State of California, 344 U.S. 357, 73 S.Ct. 293.
The attorneys who appear for Edelman tell us that for two months they tried to get the authorized counsel for the Rosenbergs to raise this issue but were refused. They also inform us that they have eleven more points to present hereafter, although the authorized counsel do not appear to have approved such issues.
The Rosenbergs throughout have had able and zealous counsel of their own choice. These attorneys originally thought this point had no merit and perhaps also that it would obscure the better points on which they were endeavoring to procure a hearing here. Of course, after a Justice of this Court had granted Edelman standing to raise the question and indicated that he is impressed by its substantiality, counsel adopted the argument and it became necessary for us to review it. They also shared their time and the counsel table with the Edelman lawyers thus admitted as attorneys-at-large to their case. The lawyers who have ably and courageously fought the Rosenbergs' battle throughout then listened at this bar to the newly imported counsel make an argument which plainly implied lack of understanding or zeal on the part of the retained counsel. They simply had been elbowed out of the control of their case.
Every lawyer familiar with the workings of our criminal courts and the habits of our bar will agree that this precedent presents a threat to orderly and responsible representation of accused persons and the right of themselves and their counsel to control their own cases. The lower court refused to accept Edelman's intrusion but by the order in question must accept him as having standing to take part in, or to take over, the Rosenbergs' case. That such disorderly intervention is more likely to prejudice than to help the representation of accused persons in highly publicized cases is self-evident. We discountenance this practice.
Vacating this stay is not to be construed as indorsing the wisdom or appropriateness to this case of a death sentence. That sentence, however, is permitted by law and, as was previously pointed out, is therefore not within this Court's power of revision. 344 U.S. 889, 889, 73 S.Ct. 134.
Mr. Justice CLARK, with whom THE CHIEF JUSTICE, Mr. Justice REED, Mr. Justice JACKSON, Mr. Justice BURTON, and Mr. Justice MINTON join.
Seven times now have the defendants been before this Court. In addition, THE CHIEF JUSTICE, as well as individual Justices, have considered applications by the defendants. The Court of Appeals and the District Court have likewise given careful consideration to even more numerous applications than has this Court.
The defendants were sentenced to death on April 5, 1951. Beginning with our refusal to review the conviction and sentence in October 1952, each of the Justices have given the most painstaking consideration to the case. In fact, all during the past Term of this Court one or another facet of this litigation occupied the attention of the Court. At a Special Term on June 15, 1953, we denied for the sixth time the defendants' plea. The next day an application was presented to Mr. Justice DOUGLAS contending that the penalty provisions of the Atomic Energy Act governed this prosecution; and that since the jury did not find that the defendants committed the charged acts with intent to injure the United States nor recommend the imposition of the death penalty the court had no power to impose the sentence of death. After a hearing Mr. Justice DOUGLAS, finding that the contention had merit, granted a stay of execution. The Court convened in Special Term to review that determination. Cf. Ex parte Quirin, 1942, 317 U.S. 1, 63 S.Ct. 1, 87 L.Ed. 3.
Human lives are at stake; we need not turn this decision on fine points of procedure or a party's technical standing to claim relief. Nor did Mr. Justice DOUGLAS lack the power and, in view of his firm belief that the legal issues tendered him were substantial, he even had the duty to grant a temporary stay. But for me the short answer to the contention that the Atomic Energy Act of 1946 may invalidate defendants' death sentence is that the Atomic Energy Act cannot here apply. It is true that § 10(b)(2) and (3) of that Act authorizes capital punishment only upon recommendation of a jury and a finding that the offense was committed with intent to injure the United States. (Notably, by that statute the death penalty may be imposed for peacetime offenses as well, thus exceeding in harshness the penalties provided by the Espionage Act.) This prosecution, however, charged a wartime violation of the Espionage Act of 1917 under which these elements are not prerequisite to a sentence of death. Where Congress by more than one statute proscribes a private course of conduct, the Government may choose to invoke either applicable law: 'At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute.' United States v. Beacon Brass Co., 1952, 344 U.S. 43, 45, 73 S.Ct. 77, 79; see also United States v. Noveck, 1927, 273 U.S. 202, 206, 47 S.Ct. 341, 71 L.Ed. 610; Gavieres v. United States, 1911, 220 U.S. 338, 31 S.Ct. 421, 55 L.Ed. 489. Nor does the partial overlap of two statutes necessarily work a pro tanto repealer of the earlier Act. Id. 'It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. * * * The intention of the legislature to repeal 'must be clear and manifest'. * * * It is not sufficient * * * 'to establish that subsequent laws cover some or even all of the cases provided for by (the prior act); for they may be merely affirmative, or cumulative, or auxiliary'. There must be 'a positive repugnancy between the provisions of the new law and those of the old". United States v. Borden Co., 1939, 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181. Otherwise the Government when charging a conspiracy to transmit both atomic and non-atomic secrets would have to split its prosecution into two alleged crimes. Section 10(b)(6) of the Atomic Energy Act itself, moreover, expressly provides that § 10 'shall not exclude the applicable provisions of any other laws * * *,' an unmistakable reference to the 1917 Espionage Act. Therefore this section of the Atomic Energy Act, instead of repealing the penalty provisions of the Espionage Act, in fact preserves them in undiminished force. Thus there is no warrant for superimposing the penalty provisions of the later Act upon the earlier law.
In any event, the Government could not have invoked the Atomic Energy Act against these defendants. The crux of the charge alleged overt acts committed in 1944 and 1945, years before that Act went into effect. While some overt acts did in fact take place as late as 1950, they related principally to defendants' efforts to avoid detection and prosecution of earlier deeds. Grave doubts of unconstitutional ex post facto criminality would have attended any prosecution under that statute for transmitting atomic secrets before 1946. Since the Atomic Energy Act thus cannot cover the offenses charged, the alleged inconsistency of its penalty provisions with those of the Espionage Act cannot be sustained.
Our liberty is maintained only so long as justice is secure. To permit our judicial processes to be used to obstruct the course of justice destroys our freedom. Over two years ago the Rosenbergs were found guilty by a jury a of a grave offense in time of war. Unlike other litigants they have had the attention of this Court seven times; each time their pleas have been denied. Though the penalty is great and our responsibility heavy, our duty is clear.
Mr. Justice BLACK, dissenting.

## Notes

* ↑ 2 Cir., 195 F.2d 583.
* ↑ 344 U.S. 838, 73 S.Ct. 20. The order noted that Mr. Justice Black was of the opinion that certiorari should be granted.
* ↑ 344 U.S. 889-890, 73 S.Ct. 134. The full text of the order reads:
* ↑ 108 F.Supp. 798.
* ↑ 2 Cir., 200 F.2d 666.
* ↑ 345 U.S. 965, 73 S.Ct. 949. The full text of the order reads:
* ↑ 345 U.S. 989, 73 S.Ct. 1151. The full text of the order reads:
* ↑ 345 U.S. 1003, 73 S.Ct. 1151. The full text of the order reads:
* ↑ 346 U.S. 271, 73 S.Ct. 1152. The full text of the order reads:
* ↑ Counsel for the Rosenbergs was aware of the existence of the Atomic Energy Act, 42 U.S.C.A. § 1801 et seq., long before receiving the suggestion from counsel for Edelman. One argument, inter alia, advanced in the original certiorari petition, which was filed June 7, 1952, was that the sentence of death constituted cruel and unusual punishment in violation of the Eighth Amendment of the Constitution. The requirement of the Atomic Energy Act of an intent to injure the United States as a prerequisite to the death penalty (42 U.S.C. § 1810(b)(2) and (3) and § 1816, 42 U.S.C.A. §§ 1810(b)(2, 3) 1816), was cited in the petition in support of the cruel and unusual punishment argument. In the petition for certiorari, as well as the petition for rehearing, filed October 28, 1952, in regard to other contentions, counsel for the defendants cited Newman, Control of Information Relating to Atomic Energy, 56 Yale L.J. 769. That article deals extensively with the relationship of sentences under the Atomic Energy Act and under the Espionage Act.
* ↑ 346 U.S. 322, 73 S.Ct. 1178. The order denying a further stay read:
* ↑ See, e.g., Land v. Dollar, 1951, 341 U.S. 737, 71 S.Ct. 987, 95 L.Ed. 1331; Johnson v. Stevenson, 1948, 335 U.S. 801, 69 S.Ct. 6, 93 L.Ed. 359.
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