WASHINGTON, June 19, 1953 (UP) - Atom spies Julius and Ethel Rosenberg lost their fight for life in the Supreme Court today. The nation's highest tribunal canceled the stay of execution which was granted to the Rosenbergs Wednesday by Justice William O. Douglas.
The U.S. marshal in New York, in charge of execution arrangements, tentatively set the Rosenbergs' death for 11 tonight. However, since the Jewish Sabbath begins at dusk tonight, there is a possibility that the execution might be put off until tomorrow night at 11.
The court reached its historic decision to overrule Douglas on a 6-to-2 vote. Douglas and Justice Hugo L. Black dissented. Justice Felix Frankfurter wanted more time to think it over.
Today's decision marked the seventh time the high tribunal has turned down the condemned couple.
The Rosenbergs' one main hope of escaping death now was presidential clemency, an unlikely possibility unless they change their minds and talk to the FBI.
President Eisenhower refused clemency once before - on Feb. 11 - and indicated this week he would do so again.
The Justice Department's pardon attorney now is studying a second clemency appeal filed by the Rosenberg defense lawyers.
The fateful decision was announced immediately after the court reconvened in extraordinary session at noon.
The tribunal had been called together in special session yesterday at the Government's urgent request to consider Douglas' action in staying the execution, which originally was scheduled for 11 p.m. yesterday.
As soon as the court reconvened, Chief Justice Fred Vinson began reading the decision slowly in a moderate tone of voice. He named the title of the case and why the court was convened in an extraordinary special term.
Vinson said the Government agreed - "and we do not doubt" - that Douglas had the power to issue the stay of execution to the Rosenbergs on Wednesday.
However, Vinson said, there is also no dispute that a stay can be issued only if there is "a substantial question" yet to be decided in the court.
Vinson summarized the contention advanced on behalf of the Rosenbergs that certain parts of the Espionage Act of 1917, under which the Rosenbergs were convicted, were replaced by the Atomic Energy Act passed in 1946.
The latter statute allows a death sentence only on recommendation of a jury. The jury did not make such a finding about the Rosenbergs.
Vinson said the court did not consider this legal point to have sufficient merit to warrant a stay.
He noted that the issue had not been raised by counsel for the Rosenbergs themselves, but by other attorneys. Nevertheless, he said, the court gave it full consideration.
Vinson said a full opinion by the court on the issue will be filed later in the clerk's office.
He added that Justice Frankfurter thought the legal questions raised for the first time in connection with the stay order "are complicated and novel." Frankfurter, Vinson said, thought attorneys should have more time to study and prepare arguments so that the court might have more material on which to deliberate.
Douglas then read his dissent, with which Justice Hugo L. Black associated himself.
Douglas said he spent "quite a few more hours" studying the legal questions in the new Rosenberg appeal than had the other justices.
"Now I know I am right on the law," he said defiantly. "No man or woman should go to his death merely because his lawyer did not raise a legal question."
Douglas, continuing in an emotion-laden voice, said the trial judge, Irving R. Kaufman, "had no power to impose the death penalty. I know deep in my heart that I am right on the law and, therefore, I see my duty."
Black, speaking after Douglas, challenged the authority of the full court to set aside Douglas' stay of execution.
"Surely," Black snapped, "the court is not setting the precedent of calling special sessions every time a federal official asks for it."
This was a reference to the fact that Vinson convened an emergency term of the court yesterday on motion of Attorney General Herbert Brownell Jr.
Brownell petitioned Vinson to do so a few hours after Douglas issued the stay Wednesday.
None of the papers which the justices had in front of them when they made their decision was available to reporters immediately. It was not known when they would be.
Joining Vinson in turning down the Rosenbergs were Justices Stanley F. Reed, Robert H. Jackson, Harold H. Burton, Tom C. Clark and Sherman Minton.
As the justices were about to retire after announcing their decision in open court, Defense Counsel Emanuel Bloch rose and asked for another stay of execution so that he could have time to see that the Rosenbergs' pleas for executive clemency is presented to President Eisenhower.
Vinson said the motion would be considered but "we will now rise."
The justices left their bench at 12:30, exactly one-half hour after coming into court.
Bloch told the court that the Justice Department's pardon attorney, Daniel Lyons, has in his possession the appeal filed Tuesday for executive clemency. He said Lyons has been holding it pending the final decision in the case by the Supreme Court.
Bloch said that in the light of differences of opinion in the court and because "tens of millions of people throughout the world are deeply disturbed" about the case, the President should have sufficient time to ponder the fate of the Rosenbergs.
Frankfurter then asked Acting Solicitor General Robert L. Stern whether he knew that "up to this moment," the petition for clemency had not been submitted to the President.
Stern replied that it is routine to hold such petitions in abeyance until courts have acted, but he did not know whether the routine had been followed in this particular case.
Fyke Farmer, the Nashville attorney who got the original stay from Douglas, then said he had a motion to present.
Vinson said he might write it out in longhand and submit it to the clerk's office.
Farmer's motion asked that the court "reconsider the question of its powers to vacate Justice Douglas' stay order and to hear oral argument thereon immediately and before the adjournment of the special term of the court."
The heart of the issue before the tribunal was whether the death sentence was validly imposed in view of the defense contention that the Atomic Energy Law superceded certain parts of the Espionage Act.
Black, in his dissent, said he "found no statute which permits the full court to set aside a temporary order granted by an individual justice."
"The oral argument has been wholly unsatisfactory," he said. "And certainly I have not had time to adequately consider" the legal question raise.
The inadequate oral argument, Black said, left him with the "firm conviction" that the applicability of the Atomic Energy Act "presents a substantial and serious question."
Black said "more informed argument" would more nearly confirm to the court's "finest traditions." He agreed with Douglas that he thought it possible that after the passage of the Atomic Energy Act it might be unlawful for a judge to impose the death sentence unless recommended by a jury.