Taking Great Cases: Lessons from the Rosenberg Case

Abstract

The most watched case of the 1952 Supreme Court Term was not Brown v. Board of Education, but the case of convicted atomic spies Julius and Ethel Rosenberg. Brown and Rosenberg demonstrate the Court's different approaches toward taking cases. The Brown Court is often criticized for having done too much; the Rosenberg Court is criticized for not having done enough. Rosenberg divided the country and divided the Court, which repeatedly refused to take the case. Instead, Justice Douglas granted a last-minute stay of execution about whether they had been tried under the wrong federal statute. The Court quickly vacated the stay, and the Rosenbergs were executed the next day. Rosenberg was a Bush v. Gore moment that alienated people who held the Court in high institutional regard. Based on newly discovered documents and interviews with key participants, this Article explains why the Court refused to grant certiorari in the one of the most famous spy cases in American history. It reorients legal scholarship about the case away from Douglas's stay and toward contemporaneous allegations of prosecutorial misconduct and perjury. And it argues that just because some great cases might make bad law does not mean the Court should refuse to take them. It explains the taking great cases theory, applies it to Rosenberg and Bush v. Gore, and contends that, especially in cases about separation of powers and minority rights, the Court should err on the side of granting certiorari in cases of great public interest.