The case would have aroused passions under any circumstances, but Judge Kaufman’s stridency hadn’t helped. At sentencing, he denounced the defendants for a “diabolical conspiracy to destroy a God-fearing nation” and blamed the drab electrician and his wife for nothing less than starting the Korean War. Not long ago, the historian Stacy Schiff placed the speech in the frightened and wrathful tradition of New England’s witch trials. Stacy Schiff, Anger: An American History, N.Y. Times, Dec. 18, 2015. After a later hearing in the case, Nobel laureate and Manhattan Project official Harold Urey, who believed the Rosenbergs’ importance to the Soviet atomic effort had been exaggerated, lashed out to a reporter: “Now that I’ve seen what goes on in there, I see not Irving Kaufman but McCarthy.”
More deeply, there had been little at trial to connect Ethel Rosenberg to spying—only typing up some notes on the bomb to improve their legibility (testimony admitted to be perjurious 50 years later). Her lawyers gave her virtually no independent defense, essentially lumping her in with her more culpable husband. Yet she received the same, maximum penalty. As the mother of two young sons, she was especially sympathetic.
As the end approached, Judge Kaufman was a worn and harried figure. Police guards stood outside his apartment building while the FBI repeatedly swept the interior for bombs. Weeks earlier, he had packed his young family off to a friend’s home in Connecticut due to the endless threats. He remained at his post in Manhattan, serially denying last-minute applications for stays.
To his critics, then, Judge Kaufman embodied harsh and distorted Cold War justice. But at the same time that the Rosenberg saga was nearing its tragic finale, the U.S. Supreme Court was considering a different case—a battle over immigration rules centered on someone reporters dubbed “the man without a country.”
Ignatz Mezei entered the United States illegally but lived quietly in Buffalo until leaving to visit his dying mother in Romania. Returning in 1950, he was mysteriously stopped at Ellis Island. No one would tell him why, but it was easy enough to guess from questions the immigration officers asked, including, “Were you ever a member of a communist organization?” After months in limbo, Mezei wrote the federal court in New York in anguish: “Let me go free. I did not kill anybody, I did not steal anybody, I did not make any crime.”
The case was assigned to Judge Kaufman months after he sentenced the Rosenbergs, and the supposed McCarthyite quickly saw the basic question at issue: “The man apparently has no place to go. Is the government justified in keeping him at Ellis Island, perhaps indefinitely?” The United States maintained that the Constitution gives the president almost total power over aliens, but “I do not agree,” Kaufman wrote. The Constitution applied everywhere in America, he explained, including its entry points, and the Fifth Amendment guarantees due process of law to all “persons,” not merely citizens. “The government sounds a grim warning that releasing this alien from detention will bring a flood of enemy agents, spies, saboteurs, madmen, homicidal maniacs and lepers down upon us,” Judge Kaufman commented sarcastically, but he wasn’t cowed. He ordered Mezei freed. United States ex rel. Mezei v. Shaughnessy, 101 F. Supp. 66, 68–71 (S.D.N.Y. 1951).
The government appealed, and the case reached the Supreme Court. A majority of the justices saw no problem with Mezei’s permanent, unexplained confinement. If the president wanted to bar an alien deemed a security threat, Justice Tom Clark wrote, no hearing or judicial review was necessary. Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206 (1953).
Justice Jackson’s dissent was one of his most eloquent—which is saying something. He warned that denying Mezei due process risked nothing less than our own version of Hitler’s “protective custody,” a euphemism for sending nonpersons away to concentration camps without trial. It was a form of despotism Jackson knew well after his stint leading Allied prosecutors in Nuremberg. He simply rejected the notion that giving Mezei and others like him hearings “would menace the security of this country. No one can make me believe that we are that far gone.” Id. at 228 (Jackson, J., dissenting).
Today, the Supreme Court’s opinion in Mezei exalting the president’s near-absolute power over aliens remains relevant and has been cited in post-2001 cases involving Guantanamo detainees and terrorism suspects. By the same token, Justice Jackson’s dissent, which seconded Judge Kaufman’s enlightened view, remains a stirring objection to abandoning certain classes of people to the mercy of the state.
After the Supreme Court’s decision, Mezei, who had been released by Judge Kaufman, headed back to Ellis Island. “What means ‘security risk’?” he asked when reporters stopped him. “I have only my own two hands. What did I do all my life but work? If I could find out what they have against me, I would at least make sure they knew the truth.” One reporter asked: “How does it feel to be going back to the island, maybe forever?” Mezei started to answer but choked up and began sobbing. All he could manage was, “It is like going to death.”
In the end, plans to close Ellis Island and pressure from advocacy groups led the Justice Department to quietly release Mezei the following year, and he returned to Buffalo.
Mezei’s case, also seven decades ago this year, was the first to lay bare what two historians have called the “enigma” of Judge Kaufman. Ronald Radosh & Joyce Milton, The Rosenberg File 289 (Holt Rinehart & Winston 1983). “Irving R. Kaufman: Radical one day, reactionary the next?” asked one columnist writing about the case.
In later years, he became the first federal judge to desegregate a northern school, liberalized the insanity defense, reformed Attica-era prisons, found unequal educational funding to violate the Fourteenth Amendment, flirted with a constitutional right to welfare payments, spared John Lennon from the Nixon administration’s politically motivated deportation, greatly expanded freedom of the press, brought foreign torturers to justice in American courtrooms, and more.
But he could never escape his tortured past, or the fatal want of mercy shown in his most famous assignment. The Rosenberg controversy roared back to life in the 1970s after revelations in newly obtained FBI records demonstrated that Judge Kaufman had conducted secret, ex parte talks with the prosecution, including Roy Cohn, during the case. Picketers reappeared to dog his footsteps, and some called for impeachment. They cared little for his more recent progressivism, dismissing it as cheap and transparent atonement. Meanwhile, his family descended into a tragedy of mental illness, substance abuse, and early death that some relatives attributed in part to the never-ending pressure cooker of bomb threats and public denunciation.
His death at 81 should finally have brought release. As one of his last two law clerks, I sat in the same synagogue he reportedly visited when first pondering the Rosenbergs’ fates after their convictions in 1951. The rabbi was in the middle of his eulogy when someone behind me stood up and bellowed: “He murdered the Rosenbergs! Let him rot in hell!” The case haunted him, quite literally, into the grave.