CASES ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

JUNE 18 SPECIAL TERM, 1953.

ROSENBERG ET AL. v. UNITED STATES.

MOTION TO VACATE A STAY.

No., June 18 Special Term, 1953.

Argued June 18, 1953-Decided June 19, 1953.

The Rosenbergs were convicted and sentenced to death for conspiring to violate the Espionage Act of 1917 by communicating to a foreign government, in wartime, secret atomic and other military information. The overt acts relating to atomic secrets occurred before enactment of the Atomic Energy Act of 1946; but other aspects of the conspiracy continued into 1950. The Court of Appeals affirmed the convictions, and this Court denied certiorari and rehearing. Thereafter, several unsuccessful collateral attacks on the sentences were made in the lower courts, and reviews of the decisions thereon were sought in this Court. After disposing, in effect, of all such collateral attacks then pending in the courts and denying a further stay, this Court adjourned the October Term, 1952. At a Special Term on June 15, 1953, the Court denied a motion for leave to file an original petition for a writ of habeas corpus and for a stay, and again adjourned. Thereafter, counsel for the Rosenbergs applied to MR. JUSTICE DOUGLAS for a stay; but he denied it, since they raised questions already considered by the Court. Counsel who had not been retained by the Rosenbergs but who represented a "next friend" applied to MR. JUSTICE DOUGLAS for a stay and a writ of habeas corpus, contending that the Atomic Energy Act of 1946 rendered the District Court powerless in this case to impose the death penalty under the Espionage Act of 1917. On June 17, 1953, MR. JUSTICE DOUGLAS denied a writ of habeas corpus but granted a stay, effective until the applicability of the Atomic Energy Act could be determined in

the lower courts. The Attorney General petitioned this Court to convene in Special Term and to vacate the stay. Held: The stay granted by MR. JUSTICE DOUGLAS is vacated. Pp. 277–296. 1. MR. JUSTICE DOUGLAS had power to issue the stay. Pp. 285, 288, 294.

2. This Court has power to decide, in this proceeding, the question preserved by the stay granted by MR. JUSTICE DOUGLAS, and to vacate that stay. Pp. 286–287.

(a) That the full Court has made no practice of vacating stays issued by single Justices 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. P. 286.

(b) The power exercised in this case derives from the Court's role as the final forum to render the ultimate answer to the question which was preserved by the stay. P. 286.

(c) In the unusual circumstances of this case, this Court deemed it proper and necessary to convene in Special Term to consider and act upon the Attorney General's urgent application. Pp. 286-287.

(d) This Court's responsibility to supervise the administration of criminal justice by the federal judiciary includes the duty to see not only that the laws are enforced by fair proceedings but also that the punishments prescribed by the laws are enforced with a reasonable degree of promptness and certainty. P. 287.

3. The stay granted by MR. JUSTICE DOUGLAS is vacated. Pp. 288-289.

(a) A stay should issue only if there is a substantial question to be preserved for further proceedings in the courts. P. 288.

(b) The question whether the Atomic Energy Act of 1946 rendered the District Court powerless in this case to impose the death penalty under the Espionage Act of 1917 is not substantial, and further proceedings to litigate it are unwarranted. Pp. 285-286, 289, 289-290, 294-296.

4. The Atomic Energy Act did not repeal or limit the penalty provisions of the Espionage Act. Pp. 287, 289, 290, 294–296.

(a) At least where different proof is required for each offense, a single act or transaction may violate more than one criminal statute. P. 294.

(b) The partial overlap of two statutes does not work a pro tanto repeal of the earlier act, unless the intention of the legislature to repeal the earlier statute is clear and manifest. Pp. 294-295.

(c) Instead of repealing the penalty provisions of the Espionage Act of 1917, the Atomic Energy Act, by § 10 (b)(6), preserves them in undiminished force. P. 295.

(d) Since the crux of the charge alleged overt acts committed before the Atomic Energy Act was enacted, that Act cannot cover the offenses charged, and the alleged inconsistency of its penalty provisions with those of the Espionage Act cannot be sustained. Pp. 295–296.

5. Although the question now urged as being substantial 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. The Court does not hold in this case that a waiver of this claim precluded its consideration. Pp. 282-283, 288-289.

6. In the circumstances of this case, in which the Rosenbergs were represented at their trial and in all subsequent proceedings by able and zealous counsel of their own choice, intervention by a stranger as "next friend," without authorization by the Rosenbergs and through counsel who had never been retained by them, is to be discountenanced. Pp. 291–292.

Stay vacated.

For opinion of the Court, delivered by THE CHIEF JUSTICE, see post, p. 277.

For per curiam opinion, see post, p. 288.

For concurring opinion of MR. JUSTICE JACKSON, joined by THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON, MR. JusTICE CLARK and MR. JUSTICE MINTON, see post, p. 289.

For concurring opinion of MR. JUSTICE CLARK, joined by THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE JACKSON, MR. JUSTICE BURTON and MR. JUSTICE MINTON, see post, p. 293.

For dissenting opinion of MR. JUSTICE BLACK, see post, p. 296. For dissenting opinion of MR. JUSTICE FRANKFURTER, see post, p. 301.

For dissenting opinion of MR. JUSTICE DOUGLAS, see post, p. 310. For appendix to opinion of MR. JUSTICE DOUGLAS containing his opinion granting the stay, see post, p. 313.

The history of the proceedings in this unusual case is recited in the opinion of the Court, post, pp. 277–285.

The Court's Journal for June 18, 1953 (p. 257), contains the following entries:

"The Court met in Special Term pursuant to a call by the Chief Justice.

"Present: Mr. Chief Justice Vinson, Mr. Justice Black, Mr. Justice Reed, Mr. Justice Frankfurter, Mr. Justice Douglas, Mr. Justice Jackson, Mr. Justice Burton, Mr. Justice Clark, and Mr. Justice Minton.

"The Chief Justice said:

""The Court is now convened in Special Term 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 of June 15, 1953, in No. 1, Misc., Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford L. Denno, Warden of Sing Sing Prison, June 1953 Special Term, denying a stay.

""The Special Term convenes with the approval of all the Associate Justices except Mr. Justice Black, who objects.'"

THE CHIEF JUSTICE and all Associate Justices were present when the decision was announced on June 19, 1953.

Acting Solicitor General Stern argued the cause for the United States. With him on the motion and the brief in support thereof was Attorney General Brownell.

Arguments in opposition to the Government's motion were made by Daniel G. Marshall, pro hac vice, by special leave of the Court, and by Emanuel H. Bloch, John F. Finerty and Fyke Farmer.

273

Opinion of the Court.

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.*

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.1 A petition for rehearing was denied.

A petition for certiorari was filed here. It was denied on October 13, 1952.2 A petition for rehearing was filed October 28, 1952. It was denied on November 17, 1952.3

One week thereafter, a motion was filed in the District Court under § 2255 of the Judicial Code (28 U. S. C.

*[NOTE: This opinion was filed July 16, 1953.]

1 195 F. 2d 583.

2 344 U. S. 838. The order noted that MR. JUSTICE BLACK was of the opinion that certiorari should be granted.

3 344 U. S. 889-890. The full text of the order reads: "Motion for leave to file brief of Dr. W. E. B. Dubois and others, as amici curiae, denied. Petitions for rehearing denied. Memorandum filed by MR. JUSTICE FRANKFURTER in No. 111. MR. JUSTICE BLACK adheres to his view that the petitions for certiorari should be granted. "MR. JUSTICE FRANKFURTER.

"Petitioners are under death sentence, and it is not unreasonable to feel that before life is taken review should be open in the highest court of the society which has condemned them. Such right of review was the law of the land for twenty years. By § 6 of the Act of February 6, 1889, 25 Stat. 655, 656, convictions in capital cases arising under federal statutes were appealable here. But in 1911 Congress abolished the appeal as of right, and since then death