A Parable about the Possibilities of Dissent

Still feeling a little discouraged about being slapped down for funding for the Activist School i am reminded of a story i learned over 20 years ago that has been one of the formative stories of my life. I met Arthur Kinoy in 1984 while living in Massachusetts and he is one of only two people i have ever asked to have sign their book for me.

Civil rights lawyer Arthur Kinoy and his partner were working late one evening in June of 1953 when they received a phone call from the distraught chief counsel for Julius and Ethel Rosenberg. The Rosenbergs had been found guilty of treason (for acting as spies for the Soviet Union) and been sentenced to death. A stay of execution had been granted and the Rosenberg’s team of lawyers breathed a sigh of relief for the summer they now believed they had to mount a new defence. The Supreme Court (the only body that could overturn the stay of execution) had adjourned for the season. But such was the climate of fear of communism at that time that the Supreme Court justices were called back from their holidays for the sole purpose of overturning the stay. The Rosenbergs were to be executed the next day. At their wits end the Rosenberg’s lawyers turned to Arthur Kinoy. There was only one thing to do and that was to get a new stay. But most courts were adjourned for the summer. Nonetheless, Kinoy found a judge willing to meet with him: the highly respected conservative Chief Judge Thomas Swan. It was a longshot. They expected to fail. They did not. Judge Swan listened to their case and agreed that a stay was in order. But they needed one other judge to agree in order for the stay to be granted. Judge Swan sent them to see Jerome Frank, the leading liberal judge on that court, the architect of the New Deal and much progressive legislation. Judge Frank was an idol to Kinoy and his peers when they were law students. They felt they couldn’t fail. They did. Having made their case to the best of their ability Judge Frank said: “If I were as young as you are, I would be sitting where you are now, and saying and arguing what you are arguing. You are right to do so. But when you are as old as I am, you will understand why I … why I cannot do what you ask. I cannot do it.” That evening, at 8:00 Eastern Standard Time Julius and Ethel Rosenberg were electrocuted.

Kinoy writes:

Jerome Frank might, in a profound sense, have changed the course of American history that afternoon. He could not do it. He was a prisoner of the system he served. As a liberal, as a progressive, he had risen to a position of leadership in society. He would jeopardize the usefulness of those labels and, accordingly, the position they afforded him if he participated in the act of courage that Judge Swan, the conservative, was prepared to take. The labels themselves, Frank’s “liberal” past, imprisoned him – kept him from the course he would have taken if he were “as young as” we were. When we were “as old as” he was, he was telling us, we would understand that to preserve our position in society, we must compromise with those in control.

… [Frank] was afraid – afraid of threatening the already shaky position of himself, of all the liberals, of the progressives, and even of the Jews – although that was a thought which I, as a young Jewish person, was most reluctant to face. It simply was not prudent for a “liberal Jew” to be the one to save the two “Jewish atom spies.” This was what we would understand only when we were “as old as” he.” (Arthur Kinoy, Rights On Trial: The Odyssey of a People’s Lawyer, Lexington, MA, 1983: Bernel Books, pp. 125-126)

Kinoy concludes this hard-won lesson: “However, Mike Perlin and I came through the experience with the inner hope that at least never in our lives would we become “as old as” Jerome Frank was that afternoon.”