U.S. Supreme Court

ROSENBERG v. UNITED STATES, 346 U.S. 273 (1953)

346 U.S. 273

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.

MR. CHIEF JUSTICE VINSON delivered the opinion of the Court.^{Footnote *}

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.[^{Footnote 1} ] A petition for rehearing was denied.

A petition for certiorari was filed here. It was denied on October 13, 1952.[^{Footnote 2} ] A petition for rehearing was filed October 28, 1952. It was denied on November 17, 1952.[^{Footnote 3} ]

One week thereafter, a motion was filed in the District Court under 2255 of the Judicial Code

(28 U.S.C. 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.[^{Footnote 4} ] The Court of Appeals

affirmed.[^{Footnote 5} ] 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.[^{Footnote 6} ] On the next day, a petition for a stay, pending the consideration 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 in 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 of 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.[^{Footnote 7} ] The

pending petition for rehearing as to the May 25, 1953, denial of certiorari, was also denied.[^{Footnote 8} ] 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, on June 15, 1953, 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.[^{Footnote 9} ] 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.[^{Footnote 10} ] 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), 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.[^{Footnote 11} ]

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,  316 U.S. 4, 9 -10 (1942). 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 question 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." (See post, p. 321.)

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.[^{Footnote 12} ] 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.[^{Footnote 13} ] 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 as 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[^{Footnote 14} ] and MR. JUSTICE CLARK.[^{Footnote 15} ] 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.

Footnotes

"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

sentences have come here only under the same conditions that apply to any criminal conviction in a federal court. ( 128, 238, 240 and 241 of the Judicial Code, 36 Stat. 1087, 1133, 1157.)

"The Courts of Appeals are charged by Congress with the duty of reviewing all criminal convictions. These are courts of great authority and corresponding responsibility. The Court of Appeals for the Second Circuit was deeply conscious of its responsibility in this case. Speaking through Judge Frank, it said: `Since two of the defendants must be put to death if the judgments stand, it goes without saying that we have scrutinized the record with extraordinary care to see whether it contains any of the errors asserted on this appeal.'  195 F.2d 583, 590.

"After further consideration, the Court has adhered to its denial of this petition for certiorari. Misconception regarding the meaning of such a denial persists despite repeated attempts at explanation. It means, and all that it means is, that there were not four members of the Court to whom the grounds on which the decision of the Court of Appeals was challenged seemed sufficiently important when judged by the standards governing the issue of the discretionary writ of certiorari. It also deserves to be repeated that the effective administration of justice precludes this Court from giving reasons, however briefly, for its denial of a petition for certiorari. I have heretofore explained the reasons that for me also militate against noting individual votes when a petition for certiorari is denied. See Chemical Bank & Trust Co. v. Group of Institutional Investors,  343 U.S. 982 .

"Numerous grounds were urged in support of this petition for certiorari; the petition for rehearing raised five additional questions. So far as these questions come within the power of this Court to adjudicate, I do not, of course, imply any opinion upon them. One of the questions, however, first raised in the petition for rehearing, is beyond the scope of the authority of this Court, and I deem it appropriate to say so. A sentence imposed by a United States district court, even though it be a death sentence, is not within the power of this Court to revise."

"Upon consideration of the recommendation, the Court declined to hear oral argument on the application.

"MR. JUSTICE FRANKFURTER and MR. JUSTICE BURTON, agreeing with MR. JUSTICE JACKSON'S recommendation, believe that the application should be set for hearing on Monday, June 15, 1953.

"Thereupon, the Court gave consideration to the application for the stay, and denies it, MR. JUSTICE BURTON joining in such denial.

"Mr. JUSTICE FRANKFURTER and MR. JUSTICE JACKSON, believing that the application for a stay should not be acted upon without a hearing before the full Court, do not agree that the stay should be denied.

"MR. JUSTICE BLACK is of the opinion that the Court should grant a rehearing and a stay pending final disposition of the case. But since a sufficient number do not vote for a rehearing, he is willing to join those who wish to hear argument on the question of a stay.

"MR. JUSTICE DOUGLAS would grant a stay and hear the case on the merits, as he thinks the petition for certiorari and the petition for rehearing present substantial questions. But since the Court has

decided not to take the case, there would be no end served by hearing oral argument on the motion for a stay. For the motion presents no new substantial question not presented by the petition for certiorari and by the petition for rehearing."

"Mr. Justice Black is of the opinion the petition for rehearing should be granted."

"Mr. Justice Frankfurter:

"`The disposition of an application to this Court for habeas corpus is so rarely to be made by this Court directly that Congress has given the Court authority to transfer such an application to an appropriate district court. 28 U.S.C., 2241. I do not favor such a disposition of this application because the substance of the allegations now made has already been considered by the District Court for the Southern District of New York and on review by the Court of Appeals for the Second Circuit. Neither can I join the Court in denying the application without more. I would set the application down for hearing before the full Court tomorrow forenoon. Oral argument frequently has a force beyond what the written word conveys.'"

"MR. JUSTICE BLACK dissents.

"MR. JUSTICE FRANKFURTER.

"On the assumption that the sentences against the Rosenbergs are to be carried out at 11 o'clock tonight, their counsel ask this Court to stay their execution until opportunity has been afforded to them to invoke the constitutional prerogative of clemency. The action of this Court, and the division of opinion in vacating the stay granted by MR. JUSTICE DOUGLAS, are, of course, a factor in the situation, which arose within the last hour. It is not for this Court even remotely to enter into the domain of clemency reserved by the Constitution exclusively to the President. But the Court must properly take into account the possible consequences of a stay or of a denial of a stay of execution of death sentences upon making an appeal for executive clemency. Were it established that counsel are correct in their assumption that the sentences of death are to be carried out at 11 p. m. tonight, I believe that it would be right and proper for this Court formally to grant a stay with a proper time-limit to give appropriate opportunity for the process of executive clemency to operate. I justifiably assume, however, that the time for the execution has not been fixed as of 11 o'clock tonight. Of course I respectfully assume that appropriate consideration will be given to a clemency application by the authority constitutionally charged with the clemency function."

The order,  346 U.S. 324 , denying a rehearing on the question of our power to vacate the stay reads:

"The motion for reconsideration of the question of the Court's power to vacate MR. JUSTICE DOUGLAS' stay order and hear oral argument is denied.

"MR. JUSTICE BLACK dissents.

"MR. JUSTICE FRANKFURTER desires that it be noted that he too would deny the motion to reconsider the power of this Court to review MR. JUSTICE DOUGLAS' order to stay the execution, but not because he thinks the matter is free from doubt. See his dissenting

opinion in Ex parte Peru,  318 U.S. 578, 590 , in connection with Lambert v. Barrett,  157 U.S. 697 , and Carper v. Fitzgerald,  121 U.S. 87 ."

PER CURIAM. ^{Footnote *}

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., June 15 Special Term, 1953, Julius Rosenberg and Ethel Rosenberg, petitioners, v. Wilford L. Denno, Warden of Sing Sing Prison, denying a stay, ante, p. 271.

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), 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 granted by Mr. Justice Douglas 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. He believes that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opportunity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, MR. JUSTICE FRANKFURTER will set forth more specifically the grounds for this position.^{Footnote *a}

By MR. JUSTICE JACKSON, whom THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE BURTON, MR. JUSTICE CLARK, and MR. JUSTICE MINTON join.Fn

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, and rehearing later denied,  344 U.S. 889 .

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 .

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 such an appearance, under circumstances such as incapacity of the prisoner 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 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. California,  344 U.S. 357 .

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 substantially, 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, 890 .

Fn

[NOTE: This opinion was delivered June 19, 1953.]

MR. JUSTICE CLARK, with whom THE CHIEF JUSTICE, MR. JUSTICE REED, MR. JUSTICE JACKSON, MR. JUSTICE BURTON, and MR. JUSTICE MINTON join.^{Footnote *}

Seven times now have the defendants been before this Court. In addition, THE CHIEF JUSTICE, as well as individual Justices, has 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 has 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,  317 U.S. 1 (1942).

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. 60 Stat. 755, 766, 42 U.S.C. 1810 (b) (2), (3). (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.,  344 U.S. 43, 45 (1952); see also United States v. Noveck,  273 U.S. 202, 206 (1927); Gavieres v. United States,  220 U.S. 338 (1911). Nor does the partial overlap of two statutes necessarily work a pro tanto repealer of the earlier Act. Ibid. "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.,  308 U.S. 188, 198 (1939). 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.^{Footnote **} 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 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.

While 10 (b) (6) additionally contains an exception, providing that "no Government agency shall take any action under such other laws inconsistent with the provisions of this section," that exception is not applicable here. As disclosed by the legislative history of the Act (which must be read to refer to 10 (b) (6)), it "prohibits any agency from placing information in a restricted category under the authority of this or any other law once such information has been released from the category by official action of the Atomic Energy Commission." S. Rep. No. 1211, 79th Cong., 2d Sess., p. 24. And see 92 Cong. Rec. 6096 (1946): "Section 10 also establishes the Commission as the top authority in the Government with reference to what will or will not remain as restricted data . . . ."

MR. JUSTICE BLACK, dissenting.^{Footnote *}

It is argued that the Court is not asked to "act with unseemly haste to avoid postponement of a scheduled execution." I do not agree. I do not believe that Government counsel or this Court has had time or an adequate opportunity to investigate and decide the very serious question raised in asking this Court to vacate the stay granted by MR. JUSTICE DOUGLAS. The oral arguments have been wholly unsatisfactory due entirely to the lack of time for preparation by counsel for the Government and counsel for the defendants. Certainly the time has been too short for me to give this question the study it deserves. The following are some of the reasons why I think the Court should not at this time upset the considered rulings of MR. JUSTICE DOUGLAS. I add my regret that the rush of this case has deprived me of any opportunity

to do more at this time than hastily sketch my view on the important questions raised.

First. The Government argues that this Court has power to set aside the stay granted by MR. JUSTICE DOUGLAS. I think this is doubtful. I have found no statute or rule of court which permits the full Court to set aside a mere temporary stay entered by a Justice in obedience to his statutory obligations.^{Footnote **} Moreover, it is a commonplace for judges to grant stays in vacation. This is a healthy and necessary Court custom. There may have been prior instances where vacation stays of individual Justices have been set aside by the full Court before the next regular term, but no such cases have been pointed out in the Solicitor General's argument and I have found none. So far as I can tell, the Court's action here is unprecedented.

But if the Court could find statutory or constitutional power to vacate this stay, there are many reasons why I believe that power should not be exercised. Concededly,

an individual Justice has power to grant stays where substantial questions are raised. He not merely has power to do so; there is a serious obligation upon him to grant a stay where new substantial questions are presented. Where the life or death of citizens is involved, that obligation is all the heavier. Surely the Court is not here establishing a precedent which will require it to call extra sessions during vacation every time a federal or state official asks it to hasten the electrocution of defendants without affording this Court adequate time or opportunity for exploration and study of serious legal questions. It is not inappropriate to point out that in Lambert v. Barrett,  157 U.S. 697 , decided in 1895 and never overruled, this Court held that it had no jurisdiction over an appeal from a habeas corpus order of a circuit judge entered in chambers. The stay order in this case derives from petitions for habeas corpus and was entered by MR. JUSTICE DOUGLAS in chambers.

Second. The stay of MR. JUSTICE DOUGLAS in this case was based on his studied conclusion that there were substantial grounds to believe the death sentences of these two people were imposed by the District Judge in violation of law. I agree with MR. JUSTICE DOUGLAS. The Government contends, however, that the death sentences were properly imposed under the Espionage Act of 1917, 50 U.S.C. 32, which gives a district judge unconditional power to imposed the death penalty for violation of that Act. But the Atomic Energy Act, 42 U.S.C. 1810, passed in 1946, appears to have taken the death sentencing power from district judges, in cases of atomic energy espionage, except where juries recommend a death sentence and where there are allegations and proof that atomic energy information has been unlawfully transmitted with intent to injure the United States. The indictment here charged a conspiracy alleged to have continued from June 6, 1944, to June 16, 1950. Thus the

alleged conspiracy covered one period of conduct where the 1917 Act plainly governed and another period of conduct after the Atomic Energy Act went into effect. The Rosenbergs were charged with conspiracy to disclose atomic secrets as well as other kinds of secrets. Under these circumstances it would more nearly fit into the general canons of construction to hold that a District Court could impose sentence only under the less harsh statute.

I am not unaware of the Government's argument that this Court can and should give full effect to both these statutes, one which deprives the District Court of unconditional power to impose the death sentence and one which grants such unconditional power. This would be a strange argument in any case but it seems still stranger to me in a case which involves matters of life and death. The stay of MR. JUSTICE DOUGLAS is based entirely on his desire to have this matter passed upon in due course and after proper deliberation in a habeas corpus proceeding brought in district court and followed through to this Court. That is as it should be. Judicial haste is peculiarly out of place where the death penalty has been imposed for conduct part of which took place at a time when the Congress appears to have barred the imposition of the death penalty by district judges acting without a jury's recommendation. And it seems to me that this Court has not had time or opportunity for sufficient study to give the kind of informed decision on this important question it would if the case should take its regular course.

Third. I am aware also of the argument that MR. JUSTICE DOUGLAS should not have considered and that we should not now consider the point here involved because the Rosenbergs' lawyers had not originally raised it on appeal. I cannot believe, however, that if the sentence of a citizen to death is plainly illegal, this Court would allow that citizen to be executed on the grounds that his

lawyers had "waived" plain error. An illegal execution is no less illegal because a technical ground of "waiver" is assigned to justify it. Compare Bowen v. Johnston,  306 U.S. 19, 26 . After having seen the Court's order I find that it appears to agree with this view.

Fourth. The inadequate oral arguments before this Court have left me with the firm conviction that the applicability of the penal provisions of the Atomic Energy Act of 1946 to this case presents a substantial and serious question. This I think is fully demonstrated by the opinion written by MR. JUSTICE DOUGLAS when he granted the stay order, a copy of which is attached by him as an appendix to his opinion with which opinion I agree. It is my view based on the limited arguments we have heard that after passage of the Atomic Energy Act of 1946 it was unlawful for a judge to impose the death penalty for unlawful transmittal of atomic secrets unless such a penalty was recommended by the jury trying the case. I think this question should be decided only after time has been afforded counsel for the Government and for the defendants to make more informed arguments than we have yet heard and after this Court has had an opportunity to give more deliberation than it has given up to this date. This I think would be more nearly in harmony with the best judicial traditions.

I may add that I voted to grant certiorari originally in this case. That petition for certiorari challenged the fairness of the trial. It also challenged the right of the Government to try these defendants except under the limited rules prescribed by the Constitution defining the offense of treason. These I then believed to be important questions. In motions for rehearing the arguments as to the unfairness of the trial were expanded and I again voted for review. I have long thought that the practice of some of the states to require an automatic review by the

highest court of the state in cases which involve the death penalty was a good practice.

It is not amiss to point out that this Court has never reviewed this record and has never affirmed the fairness of the trial below. Without an affirmance of the fairness of the trial by the highest court of the land there may always be questions as to whether these executions were legally and rightfully carried out. I would still grant certiorari and let this Court approve or disapprove the fairness of the trials.

But the plain words of this section exclude the case here. Those words say this Court may affirm, etc., any "judgment, decree, or order of a court . . . ." But no court order is before us. Nor can the Government take comfort in 1651. It says only that "The Supreme Court and all courts established by Act of Congress may issue all writs necessary or appropriate in aid of their respective jurisdictions and agreeable to the usages and principles of law." The statute says nothing about dissolution of a stay order.

MR. JUSTICE FRANKFURTER, dissenting.^{Footnote *}

On an application made after adjournment of the Court, MR. JUSTICE DOUGLAS granted a stay of execution of the death sentences of Julius and Ethel Rosenberg. On the afternoon of the same day, the Attorney General of the United States filed an application to convene the Court in Special Term with a view to vacating the stay. It was not until late that afternoon that arrangements for convening the Court the following day could be completed. Less than three hours before the Court convened at about noon on Thursday, June 18, and in the case of some members of the Court only a few minutes before noon, did the individual members of the Court receive the Government's application and brief bearing on the propriety and reviewability of MR. JUSTICE DOUGLAS' order.

There followed three hours of argument on jurisdictional and procedural issues as well as on the issue of the substantiality of the question of law raised by the application for a stay which led to MR. JUSTICE DOUGLAS' order. In vacating that order the Court found no infirmity in it on any jurisdictional or procedural ground. The Court recognized MR. JUSTICE DOUGLAS' power to

entertain the application for a stay;^{Footnote 1} his power to consider a question though raised by counsel not of record; his power to consider a question not heretofore urged, when it concerned the legality of a sentence. See Ex parte Lange, 18 Wall. 163.

Thus the only issue in the case was whether the question on the basis of which MR. JUSTICE DOUGLAS acted was patently frivolous or was sufficiently serious to require the judicial process to run its course with the deliberation necessary for confident judgment. That is the sole issue to which this opinion is addressed. All else is irrelevant. Once the Court conceded, as it did, that the substantiality of the question raised before MR. JUSTICE DOUGLAS was the sole issue, it became wholly immaterial how many other questions were raised and considered on their merits in the District Court and in the Court of Appeals, or how many times review was sought on these questions and refused by this Court. It was equally immaterial how long a time intervened between the original trial of this case and the present proceeding, and immaterial that this was a last-minute effort almost on the eve of the executions. To allow such irrelevancies to enter the mind not unnaturally tends to bend the judicial judgment in a false direction.

And so I turn to what is for me controlling in this case. I summarized my position in the following notation on the Court's order:

"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. He believes

that, in order to enable the Court to adjudicate these issues upon adequate deliberation, this application should be disposed of only after opportunity has been afforded to counsel for both sides to make an adequate study and presentation. In due course, MR. JUSTICE FRANKFURTER will set forth more specifically the grounds for this position."

Painful as it is, I am bound to say that circumstances precluded what to me are indispensable conditions for solid judicial judgment. They precluded me, and now preclude me, from saying that the legal issue that was raised before MR. JUSTICE DOUGLAS was without substance. Let me set forth some of the difficulties that immediately arise upon consideration of that issue.

The basis on which a jury convicts is authoritatively to be taken from what the judge tells the jury. In this case, the jury's attention was especially directed to the fact that the charge was a conspiracy to obtain and transmit classified materials pertaining in part to the atomic bomb:

"Bear in mind - please listen to this, ladies and gentlemen - that the Government contends that the conspiracy was one to obtain not only atomic bomb information, but other secret and classified information; that the information including the report regarding fire-control equipment requested of Elitcher by Sobell or Rosenberg was classified; that the atomic bomb information transmitted by the Rosenbergs was classified as top secret; that based on Rosenberg's alleged statements to Greenglass, other secret information such as mathematical data on atomic energy for airplanes, information relating to a `sky platform' project and other information was obtained by Julius Rosenberg from scientist contacts in the country." R. 1557.

And the indictment charged that the conspiracy continued from 1944 to 1950. Such "averments of time in the indictment are expected and intended to be proved as laid." United States v. Kissel,  218 U.S. 601, 609 . Indeed, the judge told the jury: "You must first determine from all the evidence in the case, relating to the period of time defined in the indictment, whether or not a conspiracy existed." R. 1552. Only one conspiracy could have been found by the jury to have existed, and that was the conspiracy averred in the indictment, a conspiracy continuous from a date certain in 1944 to a date certain in 1950. The Government could of course have charged a