Democratic Justice, page 79
The next day at conference, Jackson called Douglas’s “bluff.” Black, who was hospitalized with a severe case of shingles, was absent but still voted to grant. So did Frankfurter. Douglas, alerted to “prejudicial error” by Frankfurter’s May 20 memorandum, voted to grant. Jackson provided the fourth vote to hear the case because Douglas’s memorandum had put the Court “in an impossible position.” It would leak that four justices at various times had voted to hear the case. “It was impossible to deny under those circumstances,” Jackson said. Vinson declared the case granted and discussed the briefing and argument schedule. It was near the end of the term. As with the Steel Seizure Case, Vinson wanted an expedited briefing schedule. The other justices objected. Burton offered to postpone his summer vacation plans. Vinson then suggested holding argument on July 6, announcing its decision, and writing opinions later. The other justices, recalling the Court’s unhappy experiences in Ex Parte Quirin in which the Nazi saboteurs were executed before the full opinion was written, rejected that suggestion as well. Finally, Douglas spoke and acknowledged the situation in which he put the Court. “What he had written was badly drawn, he guessed,” Frankfurter recounted. “He hadn’t realized it would embarrass anyone. He would just withdraw his memorandum if that would help matters.” After Douglas withdrew his memorandum, Jackson withdrew his fourth vote. On May 25, the Court declined certiorari for the second time. Douglas merely noted that certiorari should have been granted. “That S.O.B.’s bluff was called,” Jackson told Frankfurter. Frankfurter visited Black, who was recovering from shingles at his Alexandria home. He had been checking in on his ailing colleague ever since Black’s wife, Josephine, had died in 1951 of a suspected suicide after a prolonged struggle with depression. Frankfurter was incredibly fond of Josephine as well as Black’s children. The Court’s intellectual adversaries had grown closer during this period and found themselves on the same side in the Rosenberg case. To Black, Douglas had told a completely different version of events, that the justices had voted only to hear argument about whether to review the case, not about the merits of the claims. Frankfurter insisted this was “untrue”; Jackson later described it as “wholly false. . . . We voted to grant until Douglas withdrew his memorandum.”
Judge Kaufman scheduled the Rosenbergs’ executions for the week of June 15; the lawyers’ race to stop them was on, and it ran back to the Supreme Court. The discovery of compelling new evidence prompted civil liberties lawyer John Finerty and University of Chicago law professor Malcolm Sharp to join the defense team. On June 6, they filed a motion for a new trial and stay of execution because new evidence suggested the Greenglasses had lied and prosecutors may have committed misconduct. At trial, David and Ruth Greenglass had testified that the Soviets had given the Rosenbergs a hollowed-out wooden console table with a lamp underneath to microfilm Ethel’s typed notes. The table could not be found before trial, but a reporter for the National Guardian later discovered it in the apartment of Ethel’s illiterate mother. The table was not hollow, and there was no lamp. A Macy’s official submitted an affidavit that it was the type of console table sold there in 1944 or 1945 for $21, just as the Rosenbergs had testified at trial. The console table may seem like a minor point, but it arose several times at trial and during the closing argument. Sharp later explained that the console table “was important at the trial as a vivid item of testimony which may well have caught the jury’s mind in the course of the long and sometimes tedious proceeding. It became, however, more important in another respect: it served as a test of the dependability of the Greenglasses’ testimony.” The discovery of the table confirmed the Rosenbergs’ testimony and suggested that the Greenglasses were lying. It did not prove that the prosecution knew the Greenglasses were lying, but other new evidence revealed what the government had known and when. The Rosenbergs’ lawyers discovered a handwritten pretrial statement that David Greenglass had given to his lawyer about what he had told the FBI in his initial interview, a copy of which somehow wound up in France. After three hours of argument on June 8, Judge Kaufman denied the motions because the government could not be held accountable for failing to find the console table since it had been in Ethel’s mother’s apartment all along. The Second Circuit affirmed his decision two days later.
On June 12, the Rosenbergs’ lawyers traveled to Washington to ask for a stay of execution from Jackson, the circuit justice for the Second Circuit. They argued in their brief that David Greenglass’s “pre-trial story to authorities . . . was a very different tale from the trial testimony of the Greenglasses—as different as ‘Hamlet’ without Hamlet.” After hearing argument from both sides in his chambers, Jackson thought the petition had merit and recommended that the Court hear oral argument on it on June 16. At their Saturday conference, the justices voted 5–4 not to hear argument whether to grant the stay of execution and 5–4 to deny the stay. Frankfurter, Black, and Jackson had been in the minority both times. Burton had voted to hear oral argument but to deny the stay. Douglas was willing to grant the stay but not to hear oral argument. Jackson was furious with Douglas because “every time a vote could have been had for a hearing Douglas opposed a hearing in open Court, and only when it was perfectly clear that a particular application would not be granted, did he take a position for granting it.” Jackson was so eager to expose what he perceived as Douglas’s hypocrisy that, after the case was over, he invited St. Louis Post-Dispatch columnist Marquis Childs into his chambers and showed him Douglas’s June 13 conference votes.
On June 15, the last day of the Supreme Court term, Finerty filed an original writ of habeas corpus alleging that the prosecutors in the Rosenberg case had knowingly used perjured testimony, a claim based on the Supreme Court’s decision in the 1935 case of convicted Preparedness Day bomber Tom Mooney. The tension in the justices’ conference room was high. Douglas voted with the majority to deny Finerty’s petition and claimed: “[You’ve] got to do more than use perjured testimony, [you’ve] got to manufacture it.” Frankfurter vehemently disagreed: “Oh! no! Oh! no! [The] knowing use of perjured testimony is enough. I know a good deal about Mooney.” Jackson, though he voted with the majority, agreed with Frankfurter’s reading of the Mooney case. Only Black and Frankfurter voted to hear the Rosenbergs’ case. The executions were three days away.
That same afternoon, the Rosenbergs’ lawyers approached Douglas in his chambers about granting a stay of execution. Douglas agreed to see them the next morning at 10:00 a.m. but only if they had a new argument. A new argument had been found, but not by the Rosenbergs’ lawyers. The next morning, two new lawyers appeared in Douglas’s chambers and contended that the Rosenbergs had been tried and sentenced under the wrong federal law, the Espionage Act, when they should have been tried under the Atomic Energy Act of 1946. The Atomic Energy Act permitted a death sentence only on the basis of the recommendation of the jury; otherwise, the maximum penalty was twenty years. The government alleged that the Rosenbergs had begun stealing atomic secrets in 1944 and 1945, prior to the passage of the Atomic Energy Act, but the conspiracy had continued until 1950. Douglas commenced studying the record and concluded that, because most of the conspiracy had taken place after the passage of the Atomic Energy Act, the Rosenbergs may have been convicted and sentenced under the wrong law. Several times that afternoon, he consulted with Frankfurter about the issue. Later that evening, he discussed it with Vinson at the chief justice’s apartment in the Sheraton (Wardman) Park Hotel. That night and the next morning, the chief justice tried to discourage Douglas from granting a stay of execution and, in the alternative, asked him to present the issue to the entire Court. Black thought the issue was “very substantial.” Frankfurter was noncommittal: “Do, I said, what your conscience tells you, not what the Chief Justice tells you. Further, I said, I cannot advise you. Tête-à-tête conversation cannot settle this matter.” Douglas wanted to talk to Jackson and Burton, but Frankfurter insisted, “this was a matter for [Douglas’s] conscience.”
At noon on June 17, the day before the Rosenbergs’ executions, Douglas issued a stay of execution. He assumed the issue of whether the Rosenbergs had been convicted and sentenced under the wrong law would be reviewed by the lower courts, and the Supreme Court would review their decisions in October. He immediately left for the West and planned to stop at the home of journalist Irving Dilliard in Collinsville, Illinois. Frankfurter, thinking the same thing as Douglas, headed to Owen J. Roberts’s farm in Pennsylvania on the way to Charlemont, Massachusetts, for the summer.
Vinson was having none of it. At 11:00 p.m. on June 16, he had met secretly with Attorney General Herbert Brownell and acting Solicitor General Robert Stern in the chief justice’s apartment. Brownell asked Vinson to recall the Court and hold the third special term in its history. Brownell and Vinson met again the next afternoon in Vinson’s chambers. At 2:00 p.m. the next day, the Justice Department filed a motion for a special term to vacate Douglas’s stay. Vinson conferred with three justices in the building: Burton, Clark, and Jackson. He spoke by phone with several others: Black in Alexandria, Virginia; Minton in New Albany, Indiana; and Reed in Durham, North Carolina. Only Black objected to a special term.
At 6:00 p.m. on June 17, Vinson ordered a special term at noon the next day to hear three hours of oral argument about Douglas’s stay. He phoned Frankfurter at Roberts’s farm and asked him to return to Washington immediately. The Frankfurters had already closed their Georgetown home for the summer so they stayed with former clerk Joseph Rauh. Sitting on Rauh’s porch that evening, the justice lamented every aspect of the Rosenberg case: Irving Kaufman, “unjudicious in both the manner and substance of the sentence,” Brownell and Vinson’s “haste” to execute the Rosenbergs, and Douglas’s repeated refusals to hear oral argument followed by his last-minute “grandstand play.”
At 11:45 a.m. on June 18, the justices met in a pre-argument conference. Black objected that the chief justice had no authority to convene a special term on his own; all the justices had voted whether to have a special term in the Nazi saboteurs’ case. Vinson knew from a law clerk’s memorandum that his actions were unprecedented and blamed Clerk of the Court Harold Willey. Over Black’s objection, the Justices proceeded twelve minutes late to oral argument.
The oral argument was a circus. Five lawyers spoke, one for the government, two for the Rosenbergs, and two representing a third party as a “next friend.” Some of the defense lawyers berated the justices. No one was prepared to address the complicated question of whether the Rosenbergs had been tried and convicted under the wrong law. Douglas suspected that Vinson had lined up five votes to vacate the stay “in advance of the argument & in advance of any exposure or explication of the point!!” Frankfurter agreed with Douglas: “The fact is that all minds were made up as soon as we left the Bench—indeed, I have no doubt from some remarks made to me, before we went on it!” At the post-argument conference, Vinson insisted the claim should have been raised earlier. Black, Frankfurter’s staunchest ally, accused the Court of being in “a race for death. . . . This will be a black day for the Court. I plead that it not be decided today.” Frankfurter’s voice was so loud that Vinson’s law clerk could hear him “screaming” from the other side of the wall. Frankfurter argued that the Court had no authority to vacate the stay and that an indictment under the wrong statute cannot be waived: “it is never too late to [dis]allow a sentence to be carried out where there is no consent in law for it.” The justices voted 5–3 against maintaining the stay so the lower courts could consider the issue. They voted 5–4 against a full hearing on the merits of the issue. And they voted 6–3 to vacate the stay. Frankfurter passed on the first vote but was in the minority in the others. After nearly three hours, the conference adjourned; Burton returned to the courtroom at 6:29 p.m. and announced a recess until the following day.
Around 11:00 a.m. Friday, June 19, Vinson met in his chambers with Reed, Jackson, Burton, Clark, and Minton to discuss the majority and concurring opinions vacating Douglas’s stay. Forty-five minutes later, the justices met in conference about the protocol for announcing their opinions. The Court convened at noon. Vinson, “in a low voice,” read a short per curiam vacating the stay and ruling that the Atomic Energy Act did not supersede the Espionage Act. He indicated the issuance of a full majority opinion at a later date. Jackson and Clark released their concurring opinions later that day. Douglas spoke next and read from his dissent in an “emotion-filled and cracking” voice. Black, in “a high-pitched drawl,” spoke next and described oral argument as “wholly unsatisfactory.”
Frankfurter instructed Vinson to read a short paragraph describing the statutory issues as “complicated and novel.” He was still working on his dissent when the Court announced its decision. In a dissent released three days later, he argued that the conspiracy to steal atomic secrets had lasted from 1944 to 1950 and therefore the Rosenbergs could have been charged under the Atomic Energy Act. He needed more time, however, to review the record and to interpret the statute: “I am clear that the claim had substance and that the opportunity for adequate exercise of the judicial judgment was wanting.” He acknowledged the “pathetic futility” of writing about the case three days after the fact. “But history also has its claims. . . . Only by sturdy self-examination and self-criticism can the necessary habits for detached and wise judgment be established and fortified so as to become effective when the judicial process is again subjected to stress and strain. . . . Perfection may not be demanded of the law, but the capacity to counteract inevitable, though rare, frailties is the mark of a civilized legal mechanism.” Frankfurter’s friends and former clerks praised his opinion. Phil Elman, a former clerk working in the solicitor general’s office, was so disillusioned with the way the Court had handled the Rosenberg case that he said he needed the last two paragraphs of Frankfurter’s opinion “for the sake of my soul.” Frankfurter was telling Elman and other current and former clerks: “This isn’t the end, errors are inevitably made but you go on, you don’t lose faith in the process of law.”
The Court denied several other attempts to stay the Rosenbergs’ executions on the afternoon of June 19. At 2:30 p.m., Eisenhower denied clemency for the second time. The Rosenbergs were supposed to have died on June 18, their fortieth wedding anniversary. The government did not want to execute them on the Jewish Sabbath on Friday, June 19, after sundown (8:31 p.m.). Instead of delaying the executions, they moved them up three hours. At 8:04 p.m., Julius was strapped in to Sing Sing’s wooden electric chair. After three shocks of 2000 volts, he was pronounced dead at 8:06. Five minutes later, Ethel walked into the room not knowing her husband was already dead. She was strapped into the same chair. Three shocks later, her heart was still beating. After two more shocks, she was dead. Until the end, federal officials thought that the Rosenbergs might provide useful information about Soviet espionage. The Justice Department knew that it had a weak case against Ethel but was using her as “leverage” to extract a full confession from Julius. Instead, Ethel went to her grave in silence, remaining true to her husband and orphaning her two boys, ages ten and six.
THE GREENGLASSES HAD lied during the trial to save themselves. Years later, David admitted he had lied about his sister’s involvement to save his wife, Ruth. Only ten days before trial, Ruth had added the critical detail that Ethel had typed her brother’s notes for the Russians. The Greenglasses’ grand jury testimony, which was later unsealed, contained none of the incriminating details about the console table or Ethel’s role in typing notes. According to the Venona project (decrypted and declassified Soviet intelligence messages), Julius, code-named Liberal, operated a Communist spy ring and recruited the Greenglasses. Ethel knew all about the conspiracy and may have participated in it. Unlike her husband, brother, and sister-in-law, she was not an active spy.
Frankfurter described the Rosenberg case as “the most disturbing single experience I have had during my term of service on the Court thus far.” In the weeks after the decision, he confided to friends and former clerks how upset he was about the Court’s handling of the case. A few asked about rumors that he might retire. The Court’s rush to judgment troubled Frankfurter. He did not believe that the Rosenbergs were innocent, as in the case of Sacco and Vanzetti. Yet he thought the Court should have heard allegations that their trial had been unfair and they had been prosecuted under the wrong law. Despite not having read the trial record, he was troubled by allegations of prosecutorial misconduct against Saypol. Frankfurter understood there was more at stake than the lives of the Rosenbergs. The Court’s institutional role in defining what amounts to a constitutionally fair trial and its ability to calm public hysteria about a high-profile case warranted full briefing and argument. He believed the Court should review all death penalty cases, especially a federal espionage case during peacetime when the Soviet Union had been an ally. Above all, he wanted the Court to avoid another “ ‘self-inflicted wound.’ ”
