Denial of Stay of Execution
Supreme Court of the United States
August 19, 1927
Holmes, J.:
This is a case of a crime charged under state laws and tried by a State Court. I have absolutely no authority as a judge of the United States to meddle with it. If the proceedings were void in a legal sense, as when the forms of a trial are gone through in a Court surrounded and invaded by an infuriated mob ready to lynch prisoner, counsel and jury if there is not a prompt conviction, in such a case no doubt I might issue a habeas corpus- not because I was a judge of the United States, but simply as anyone a
having authority to issue the writ might do so, on the ground that a proceeding was no warrant for the detention of the accused. No one who knows anything of the law would hold that the trial of Sacco and Vanzetti was a void proceeding. They might argue that it was voidable and ought to be set aside by those having power to do it, but until set aside, the proceeding must stand. That is the difference between void and voidable-and I have no power to set the proceeding aside-that, subject to the exception
that I shall mention, rests wholly with the State.
I have received many letters from people who seem to suppose that I have a general discretion to see that justice is done. They are written with the confidence that sometimes goes with ignorance of the law. Of course, as I have said, I have no such power. The relation of the United States and the Courts of the United States to the States and the Courts of the States is a very delicate matter that has occupied the thoughts of statesmen and judges for a hundred years and can not be disposed of by a summary statement that justice requires me to cut red tape and to intervene. Far stronger cases than this have arisen with regard to the blacks when the Supreme Court has denied its power.
A State decision may be set aside by the Supreme Court of the United States-not by a single justice of that Court-if the record of the case shows that the Constitution has been infringed in specific ways. An application for a writ of certiorari has been filed on the ground that the record shows such an infringement; and the writ of habeas corpus having been denied, I am asked to grant a stay of execution until that application can be considered by the full Court. I assume that under the Statute my power extends to this case although I am not free from doubt. But it is a power rarely exercised and I should not be doing my duty if I exercised it unless I thought that there was a reasonable chance that the Court would entertain the application and ultimately reverse the judgment. This I can not bring myself to believe. The essential fact of record that is relied upon is that the question of judge Thayer's prejudice, raised and it is said discovered only after the trial and verdict, was left to judge Thayer and not to another judge. But as I put it to counsel if the Constitution of Massachusetts had provided that a trial before a single judge should be final, without appeal, it would have been consistent with the Constitution of the United States. In such a case there would be no remedy for prejudice on the part of the judge except Executive Clemency. Massachusetts has done more than that. I see nothing in the Constitution warranting a complaint that it has not done more still.
It is asked how it would be if the judge were subsequently shown to have been corruptly interested or insane. I will not attempt to decide at what point a judgment might be held to be absolutely void on these grounds. It is perfectly plain that although strong language is used in the present application the judgment was not void even if I interpret the affidavits as proving all that the petitioners think they prove-which is somewhat more than I have drawn from them. I do not consider that I am at liberty to deal with this case differently from the way in which I should treat one that excited no public interest and that was less powerfully presented. I cannot say that I have a doubt and therefore I must deny the stay. But although I must act on m convictions I do so without prejudice to an application to another of the justices which I should be very glad to see made, as I am far from saying that I think counsel was not warranted in presenting the question raised in the application by this and the previous writ.