With All Deliberate Speed by Silber Norman I.;

Author:Silber, Norman I.;
Language: eng
Format: epub
Publisher: University of Michigan Press

Every reasonable effort to keep the litigation that remains out of politics is indispensable. The fore-thoughtful endeavor to prevent such entanglements has brought us where we are. And I don't mind telling you that this was mainly due to the clear thinking, skillful maneuvering, and disinterested persistence of Jackson J. and FF. I shudder to think the disaster we would have suffered—the country, that is—if the “libertarians,” the heir of Jefferson [Black] and the heir of Brandeis [Douglas] had had their way! Nor are some of us resting on our oars in regard to the task ahead.

I've been telling you about the Department of Justice and about the oral arguments, but I've left out the one thing that made all the difference, the thing that made everything possible. In June 1953 after the Court set the Cases down for reargument, the Rosenberg case came up. This was shortly after they had quit for the term. I'm glad to say I had nothing to do with the Rosenberg case.

Bob Stern was the acting solicitor general and I feel sad about Bob's role in it. The Rosenberg case is the saddest episode in the Court's history in my lifetime. This has nothing to do with whether the Rosenbergs were guilty or innocent, whether Irving Kaufman should have been impeached for his conduct of the trial, any of those things. I'm thinking about the way the case was handled in the Supreme Court. They were so furious with Douglas.

Black and Frankfurter, sometimes joined by Burton, had consistently voted for review on each of three petitions for certiorari. Douglas would have been the needed fourth vote to get the case up on review. He voted to deny certiorari and a motion to hear oral arguments for a stay. After all the successive petitions were denied, they all understood this was it, that every conceivable argument for the Rosenbergs had now been presented, considered, and rejected, and they were not going to entertain further applications raising the same issues. They denied the last petition for rehearing.

After their final conference of the term, Douglas entertained this stay application by Fyke Farmer, who was not even a lawyer for the Rosenbergs, a stranger to the case. He had this new ground which nobody had ever mentioned before. Nobody knew if it had any merit or not. Looking back at it now, I'm sure it had a lot of merit. The argument is that where there are two statutes imposing punishment for what is essentially the same offense, you choose the more lenient. But it was a new argument, nobody had ever mentioned it before, and nobody knew whether there was anything to it.

And what happened, this has been recounted over and over again, all I can say is that from where I sat in the Solicitor General's Office, from what I heard from Frankfurter, the justices were so livid, so furious with Douglas for granting a stay application filed by a stranger raising a brand-new argument they

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