SIMON E. SOBELOFF by Michael S. Mayer.

Author’s Original Introduction

Perhaps Judge David L. Bazelon said it best: “Simon Sobeloff was a wise and perceptive human being, a warm friend, and a great judge.” Simon E. Sobeloff’s career in the law spanned fifty-nine years, most of which were devoted to public service. From 1919 until his death in 1973, years which witnessed the great political and social upheavals of the twentieth century, Judge Sobeloff addressed himself to issues such as progressive reform at the city level, prohibition, censorship, depression, war, civil rights, civil liberties, legislative reappointment, and reform of the criminal justice system. Consistently he took the side of the less fortunate and the persecuted. His close friend, Governor Theodore Roosevelt McKelden, called him, simply, “the champion of the underdog.” Above all, Sobeloff was dedicated to the belief that the law existed to see justice done. While recognizing that courts operate within the constraints of statute and precedent, he refused to allow technicalities and fine legal points to deny justice. Committed to insuring that justice did not belong only to the wealthy and powerful, he exhibited an activist’s concern that the courts take an aggressive role in redressing grievances of politically impotent minorities. To his way of thinking, the legal system functioned best when racial, religious, or ethnic minorities, the poor, or the politically impotent received fair treatment.

Devoted to principle, he never hesitated to advocate an unpopular cause and often became the center of controversy as a result. Nevertheless, the Baltimore Sun observed that he managed to escape “most of the obloquy that is the normal lot of persons in public life.” His personality and style had a good deal to do with the fact that a reporter, after reviewing “voluminous newspaper articles and editorials,” found “almost nothing of a censorious nature.” He was a kind and gentle man who avoided excessive partisanship. His family knew him as a devoted husband, loving father, and a doting grandfather. Friends remarked on his personal magnetism, loyalty, integrity, intelligence, charm, and wit.

Early Career in Baltimore

The son of Russian Jewish immigrants, Simon Sobeloff was born in East Baltimore on December 3, 1894. His father worked as an upholsterer, but also served as “precinct executive” for the local Republican Party. Educated in public schools and at Baltimore Talmud Torah, the young Sobeloff so impressed Miss Jennie Price, his teacher and the principal at Public School 43, that she gave him his middle name, Ernest.

At the age of twelve, he went to work as an office boy in the law office of two brothers, William F. and Henry J. Broening, for a salary of $1.50 a week. The next summer, believing himself underpaid, Simon took a job with two lawyers and a real estate man and got a raise to $2.00 a week. But, as he told it, he never quite got the full amount. Unwilling to bear more than an equal part, each of his employers paid him $.66, so his “take home pay” never rose above $1.98. During the 1907 campaign for mayor, he delivered speeches for the Republican candidate, E. Clay Timanus, winning a reputation as “the orator in kneepants.” His speechmaking caught the eye of Congressman John Kronmiller (R., 3^rd Dist.), who gave Simon his first political appointment – as a page in the House of Representatives for the Sixty-first Congress. A page earned the “fabulous amount” of $75 a month, which enabled him to help his parents financially. He also got a chance to witness history from the floor of Congress when Progressive insurgents, led by George W. Norris, revolted successfully against the dictatorial powers exercised by Speaker Joseph Cannon. In 1911, William Broening won election as State’s Attorney and appointed Sobeloff docket clerk, with a salary of $5 a week. Later his salary doubled, and Broening loaned him the money for tuition to attend the University of Maryland School of Law. While still in law school, he clerked for Morris Ames Soper, then Chief Judge of the Supreme Bench of Baltimore. In 1914, young Sobeloff was admitted to the bar a year before finishing law school (a common practice at that time), after receiving one of the highest marks on the bar examination. Sobeloff was soon on his way to establishing himself in his private practice. In 1918 he felt sufficiently secure to marry Irene Ehrlich. His former patron, Broening, won the mayoralty race the following year, after which the new mayor made Roland Marchant his City Solicitor and appointed Sobeloff to the post of Assistant City Solicitor. Sobeloff remained in the office until 1923 when the Democrats captured city hall, at which point he resumed private practice.

When Broening and the Republicans returned to office in 1927, it seems that Sobeloff was Broening’s first choice for City Solicitor, but political necessity dictated placating the Marchant wing of the party and the job went to A. Walter Kraus, Marchant’s law partner who, like Sobeloff, had served as an Assistant under Marchant during the first Broening administration. The Mayor convinced Sobeloff to accept an appointment as Deputy City Solicitor. As it turned out, Sobeloff functioned much as City Solicitor, handling the bulk of the city’s litigation and serving as Broening’s closest advisor. One local paper observed that “the mayor is said to rely more on Sobeloff than he does on any other member of his administration.” The Evening Sun described him as “probably the busiest man at city hall,” noting that, although he held the title of Deputy City Solicitor, “so far as we are able to judge, it is he who does all the work of getting the administration out of the innumerable snarls that it’s general muddle headedness is constantly getting it into.” The paper offered his success at doing so as “proof of his power as a lawyer and a diplomatist.” Yet another paper had some fun at the unfortunate Mr. Krause’s expense:

It is a ruling in law they need?

Walter’s the boy to dash it right off.

All legal problems he handles with speed,

Provided, of course, he can find Sobeloff

As Deputy City Solicitor, Sobeloff encountered many of the issues of reform left unfinished by the Progressive Era. He advocated a minimum wage, argued in court against higher fares for United Railways (a local transit system), fought for legislation requiring new standards for meat inspection, and headed an anti-noise committee. After 1929, reformers faced a new problem, the Great Depression, and Sobeloff pioneered the search for solutions to the unprecedented social dislocations it caused. Four years before the New Deal came into being, he drafted and campaigned for a state unemployment insurance plan. During the 1929 session of the state legislature, he managed the city’s legislative program with such skill that the “Oswald” column of the Baltimore Sun proclaimed him “King of the Legitimate Lobbyists.” The following year, Broening chose him to head the Municipal Commission on Stabilization of Unemployment, after Sobeloff had played an instrumental role in convincing the Mayor to appoint such a commission.

At this point, the young lawyer actively engaged in city and state politics. He wrote the speech with which Broening announced his candidacy for governor in 1930. Moreover, The Baltimore Post credited “that shrewd and suave diplomatist Simon Sobeloff” with persuading David Robb, an advocate of prohibition from western Maryland who planned to run against Broening in the primary, to run instead for State Attorney General on the Broening ticket. Further demonstration of his political skill came when both the wet and dry factions of the Republican Party asked him to serve as head of the state platform committee in 1930. Personally sympathetic to repeal, Sobeloff recognized the need for a compromise plank to maintain party unity. He did the actual writing himself, crafting a plank which neither endorsed nor disapproved of repeal of prohibition; the artfully worded document allowed Robb “to be as dry as he pleased” and Broening to maintain his popularity with the wets in Baltimore.

In 1930, Morris Soper, by then Maryland’s senior federal district judge, approached Sobeloff about replacing Amos W. Woodcock, who had resigned to become Federal Director of Prohibition, as United States Attorney for the District of Maryland. At first, Sobeloff hesitated because of prohibition. Yielding to the urging of Soper and other friends, he finally accepted. On October 1, Senator Phillips Lee Goldborough recommended to U.S. Attorney General William D. Mitchell that Sobeloff be appointed to succeed Woodcock. Aside from Soper, the nomination received support from several judges of the Supreme Bench of Baltimore and the leaders of the Baltimore Bar. However, the junior federal judge, William C. Coleman, declared his opposition. He refused to state his reasons publicly, remarking only that he opposed the candidate along “general lines.” In a letter to the Attorney General, he stated the specific grounds for his objection. He believed it inappropriate for a Jew to hold the office of District Attorney because the “job called for a person of some social standing, otherwise he could not attract the right kind of assistants,” and besides, there were so many Jewish bootleggers in Baltimore that he thought it “unwise to appoint a Jew.” In spite of Coleman’s opposition, President Herbert Hoover announced on December 24 that he would send the Sobeloff nomination to the Senate January 5, 1931. The Senate confirmed Sobeloff on January 29, and he promptly appointed Daniel Randall, Coleman’s candidate for the office, to be his assistant. Apparently he could indeed attract “the right kind of assistants.”

Spectacular arrests and prosecutions of organized bootleggers and criminals, tempered by his refusal to prosecute minor offenders of the prohibition laws, marked his tenure as United States Attorney. Years later, Sobeloff would recall that enforcing prohibition was “distasteful” but it was the law of the land. In carrying out his duty, he attempted to try the big cases, not “some small grocer who sold a gill of liquor.” Moreover, he showed no tolerance of prohibition agents who stepped outside the law to obtain evidence or arrests. He gave enforcement officials a series of six lectures on methods permitted by law for obtaining evidence and making raids. On one occasion, he refused to defend a prohibition agent arrested for switching license plates in violation of a state law in order to avoid detection. He asserted that we have arrived at an “unfortunate” state of affairs when federal officers claim that “they are above and beyond state law.” Later, when the federal agency issued orders prohibiting such action in the future, Sobeloff argued that the charges against the offending agent should be dropped. In another case, agents, acting on a telephone tip, arrested a man and his wife upon finding a bottle with alcoholic dregs in their apartment. After investigation, Sobeloff found that the tip came from the couple’s landlord with whom they were engaged in a lawsuit. He ordered the charges dropped. “If the paid informer is a nuisance,” declared Sobeloff, “the self-serving volunteer is an abomination.” On the other hand, when crowds of angry citizens attacked prohibition agents on Hull Street in Baltimore, Sobeloff went to State’s Attorney Herbert R. O’Conor and demanded that the assailants be prosecuted. Similarly, when gangsters from Philadelphia landed two boatloads of illegal whiskey at Cambridge, Maryland, he prosecuted and sent them to jail.

It was not only his personal opposition to prohibition that dictated his attitude towards enforcement. Mercy tempered all of his dealings as a prosecuting attorney. He turned over to juvenile court the case of two boys aged sixteen and seventeen accused of post office theft, rather than prosecuting them under a stringent federal law. When aroused, however, he could be a tough and aggressive prosecutor. He fought successfully for a court order allowing government seizure of B&M, a fraudulent patent medicine purporting to be a cure for tuberculosis.

His position as district attorney also brought him face to face with the issue of censorship. In a manner that foreshadowed later decisions to carry out his office in accord with the dictates of his conscience, Sobeloff ordered customs officials to release copies of Aristophanes’ Lysistrata and Dr. Marie Stopes’ Wise Parenthood, which had been seized because the Bureau of Customs listed them as obscene. With respect to Lysistrata, he said “a book, whether classic or not, should not, it seems to me, be condemned as obscene simply because a hypersensitive person might select here and there a word or phrase that offends a strained sense of modesty.” After reading it, he found “nothing in the text of this book that would be considered by persons of normal sensibilities obscene, shocking, or offensive.” The fact that it had “commended itself to intelligent readers” for two thousand years was “something not to be ignored.” Nor did he believe that Stopes’ book, which dealt with birth control, fell within the definition of obscenity. After reading it he concluded that it was “a dignified, serious and authoritative work.” That, combined with the recognition it received from the medical profession and sociologists, made it impossible for reasonable people to consider it “obscene or immoral.” These decisions did not reflect the fully developed First Amendment argument he would later hold; the did, however, represent a career-long willingness to use his office to prevent the law from becoming an instrument of repression and an equally firm resolution to do so regardless of the potential consequences to his own career.

Even after becoming United States Attorney, he continued to serve on the Municipal Commission on Stabilization of Unemployment. In February, 1933, he drafted a bill to provide for a statewide unemployment insurance plan, to be paid for equally by employers and employees. Collections from workers and employers would begin immediately, but no payments would be made until later, thus permitting a reserve to build up. Both in its design to divide the cost evenly between labor and business and its delay in beginning disbursements, the plan anticipated the national Social Security Act. These two aspects demonstrated the limited nature of reform in the 1930’s. On the other hand, the bill was crafted to win the maximum possible support and the second condition in particular attempted to insure that the plan could sustain itself and thereby make any future expansion of the program possible. In spite of this cautious approach, the legislators of Maryland were not ready for such a plan. Although the proposed legislation passed the House of Delegates, it died in the Senate.

The Depression raised other problems as well. The clothing industry in Baltimore had been plagued by a history of labor trouble. The Depression exacerbated the situation, while making the need to keep people at work all the more pressing. The Baltimore Clothing Manufacturers’ Association and the Amalgamated Clothing Workers of America entered into a city-wide arbitration agreement in January 1934 prohibiting strikes and lockouts. Because of his Solonic reputation among labor and management, both sides agreed to confer on Sobeloff the sole power to settle disputes, making him, as one newspaper phrased it, “virtual czar of the clothing industry.”

On March 12, 1934, he resigned from his position as United States Attorney amid an outpouring of praise for the job he had done. In dismissing a federal grand jury, Judge Calvin W. Chestnut declared that, “never in my memory has the office been conducted with greater efficiency or finer discrimination, and, I may add, upon occasion with a better sense of humor.” Baltimore newspapers rushed to second the opinion. One commented that, “He didn’t forget that the district attorney is an officer of the court, whose duty is to see that justice is done, rather than to secure convictions, just or unjust.” The editorial concluded that “he put in jail a great many people who ought to be there, but we do not believe he sent to jail a single man who oughtn’t be there.” Another observed that he won praise from both wets and drys by prosecuting bootleggers clamping down on overaggressive prosecutors. Granting that it was his duty to enforce the Volstead Act, it asserted that he did so in “as cleanly a way as anyone could.”

After resigning, Sobeloff established an office in the Union Trust Building and went back into private practice. He never had a partner, always preferring to have his own firm, but he established one of the largest practices in the city. Private practice did not prevent him from continuing to serve the public. He remained on the unemployment commission, continued as “clothing czar,” strove for a federal anti-lynching law, and investigated the failure of the Baltimore Trust Company. One liberal newspaper predicted that Sobeloff would run for governor in 1934, maintaining that he had conducted the business of district attorney with “such intelligence and fairness” that he would be a formidable candidate.

These years saw Sobeloff take a prominent role in the cause of racial justice. Nineteen thirty-three witnessed an upswing of violence directed against blacks. That fall, a particularly brutal lynching took place on Maryland’s Eastern Shore. The following year, the National Association for the Advancement of Colored People proposed a federal anti-lynching bill, which Edward Costigan and Robert Wagner sponsored in the United States Senate. Sobeloff testified before the Senate Judiciary Committee, pleading for passage of the bill. He presented what several observers termed a “brilliant” defense of its constitutionality. Unfortunately, with no support from President Franklin Roosevelt, the backers of the bill failed to break a filibuster by southern Democrats; the bill was doomed.

State politics beckoned once again as the 1934 elections neared. The former district attorney did not run for governor, but he did take part in formulating the state Republican platform which called for unemployment and old age insurance. Because of the platform, Maryland was one of very few places where Republicans triumphed in state elections that year. Governor-elect Harry W. Nice appointed Sobeloff both to a “superadvisory committee” to study social legislation and to head the unemployment insurance committee. In 1936, using the Sobeloff plan as a model, the administration introduced unemployment insurance legislation which exceeded the requirements of the newly passed federal Social Security Act. Opposition from business interests, let by the Baltimore Association of Commerce, successfully watered the bill down to meet minimum federal standards.

Baltimore Trust Company Investigation

Sobeloff’s private practice was again interrupted in 1935 when Judge Eugene O’Dunne chose him to investigate the failure of the Baltimore Trust Company, the largest banking institution south of Philadelphia. Baltimore Trust first ran into trouble in September 1931, and members of the business community raised a fund of $7 to 8 million in hope of averting a failure. In spite of their efforts, the bank never reopened after the bank holiday of 1933. Rumors circulated about the conduct of the officers and directors. The State Banking Commission appointed a receiver and three lawyers to act as counsel for the receiver. In September 1935, the receiver moved to collect statutory double liability from the bank’s stockholders. Sobeloff was one of the lawyers representing the stockholders and suggested that before this liability should be exacted, there should be a showing of the nature and amount of the losses and a finding that this assessment was necessary to pay the bank’s debts. At a hearing before Judge O’Dunne, it came out that the losses totaled $26 million. O’Dunne declared himself “shocked” at the nature of the loans which resulted in the losses. At this point, he ordered an official inquiry to determine whether criminal or civil liability should be enforced against the officers and directors and named Sobeloff to undertake the investigation.

On December 13, 1935 Sobeloff declared that it had been impossible to complete the investigation in the time allotted, but he turned in a five-hundred page “partial report.” O’Dunne commended him for “the arduous work he had done, the heroic efforts of time and talent expended, which is simply staggering in character, and the Court marvels that any human being, in the time allotted to him for this work, could have produced such an intelligent and comprehensive result.” The judge also requested him to continue working until he could complete the investigation. Sobeloff filed the final report on June 6, 1936. While the six-hundred-and-fifty page report did not recommend criminal prosecutions, it did allege that the directors were “personally liable for their negligent acts” and also liable for the “grossly” negligent conduct of the officers in that they failed to exercise proper supervision.

Judge O’Dunne called for the “relentless” prosecution of suits against every director and officer of the Baltimore Trust Company. Prosecuting the leading business and financial men of Baltimore was a thankless job, and one of the attorneys for the receiver withdrew because of his personal relations with the defendants. O’Dunne appointed Sobeloff to take his place. The ensuing actions recovered a quarter of a million dollars. Finally, O’Dunne ordered the stockholders’ liability be set at five dollars a share. Sobeloff declined to represent the receivership in these negotiations because of potential conflict of interest.

After the smoke had cleared, O’Dunne cited Sobeloff’s “stupendous work” and his investment of almost a year’s intensive work. Even higher praise came from the usually cynical H. L. Mencken, who wrote that “The Hon. Simon E. Sobeloff’s excellent report . . . shows all the compelling plausibility of a demonstration in geometry and all the racy charm of ‘The Gilded Age.’ ”

City Solicitor

During the first Broening administration, Sobeloff had developed a close relationship with Broening’s secretary, Theodore Roosevelt McKeldin, and the two men maintained their friendship over the years. In the meantime, McKeldin emerged as a political power in his own right. He established a reputation as a liberal Republican with decidedly “advanced views on civil liberties and social-economic questions.” With Sobeloff acting as his chief advisor and speechwriter, McKeldin ran a successful campaign for mayor in 1943. Upon entering office, McKeldin’s first act was to appoint his longtime friend City Solicitor. The following year, the Mayor named Sobeloff to a commission to revise the city charter.

World War II submerged domestic politics for the first several years of the McKeldin administration, but Sobeloff continued to advocate social justice and reform. Two issues arose as byproducts of the war: slum clearance and the citizenship rights of aliens. When the war began, Sobeloff’s old nemesis, Judge Coleman, instituted a policy of deferring final action on applications for citizenship of those who came to this country from Germany after 1933. He argued that the immigration law did not say that citizenship must be granted, only that it may be, and that the world situation made it impossible to make a proper investigation of the applicants. Sobeloff represented five German born aliens seeking to become citizens who had fulfilled all other conditions for citizenship. One was a Rabbi, another had already been accepted into the Womens’ Army Corps, and a third was married to a naturalized citizen who was serving overseas. Sobeloff argued that refugees fleeing for their lives were more likely to be sincere in applying for citizenship to the country that gave them shelter, reminding the Court that much of America was settled by persons fleeing religious or racial persecution. Further, he argued that although Coleman’s action was a “postponement in form,” it had the practical effect of denying citizenship. Coleman remained intransigent and barred testimony by Earl G. Harrison, the United States Commissioner of Immigration, to show that the prevailing practice in this country was to admit enemy aliens who had fulfilled the requirements and received a recommendation from the authorities. That, coupled with Coleman’s standard refusal to take final action (which precluded appeal), provoked a sharp exchange, beginning when the City Solicitor characterized the judge’s decision as an “arbitrary” rule which worked an unjust hardship on “the very victims of Hitlerism.” Coleman retorted that he thought the attorney was “violating [his] oath as a member of this court.” Sobeloff responded calmly, “I am performing my duty as I see it just as you are performing your duty as you see it,” adding that he had “no apologies” for any statement he had made.

Sobeloff then filed for a writ of mandamus against Coleman with the Fourth Circuit Court of Appeals on behalf of the five German-born aliens and the Immigration and Naturalization Service, charging that the judge’s policy constituted an “abuse of judicial discretion.” Before the Fourth Circuit, Sobeloff argued that, out of some two thousand judges authorized to grant citizenship, only one took Coleman’s position. The Fourth Circuit agreed that Coleman had exceeded his authority and ruled in favor of the prospective citizens.

The war also created a crisis in housing, as thousands flocked to Baltimore and other cities to take jobs in war industries. In October 1944, Sobeloff submitted a report on slum clearance to the Mayor. The report recommended that the Baltimore Housing Authority take a leading role in slum clearance and renewal and that public and private groups unify their efforts under a permanent advisory coordinating agency. Arguing for public housing, Sobeloff asserted that private builders “cannot afford to build for a large number of persons in the low income group.” He pointed out that 80% of the families affected earned under $2,000 per year, making them a group that “private builders cannot accommodate.” His advocacy of public housing brought him to oppose a state constitutional amendment authorizing Baltimore to establish a Land Development Commission which would acquire land in blighted areas and resell it to private persons for redevelopment. His primary objection centered on the fact that the amendment made no provision for those who would be dispossessed by redevelopment. “No plan,” declared Sobeloff, “for claiming blighted areas is sound which ignores the problem of rehousing the dispossessed families and simply leaves them to their fate,” especially during a severe housing shortage. He went on to point out that “many of the displaced tenants are in the lowest economic level; low-cost housing should be provided for them,” particularly since “few of them could afford to live in the houses proposed” by the plan. At this point, his vision remained ahead of society’s; the amendment passed.

On other issues as well, his social perspective antedated that of the society at large. After the war, Sobeloff supported continuing nurseries and child care centers after federal funds were cut off. The crisis began in August 1945, when the Federal Works Administration announced that grants under the Lanham Act would cease as soon as the war ended. A compromise extended funds to March 1, 1946, but all federal support ended after that date. Federal commitment to child care had never been great, even during the war when women entered the work force in unprecedented numbers. After the war, it was assumed that women would return to the home, and the only women who would continue to work were those who needed to help support the family. Sobeloff was most sensitive to the needs of these women, but his efforts gained little backing. He advocated another type of legislation that would only later attract wide support; in 1945, he drafted a recommendation for controlling air pollution.

Deteriorating relations with the Soviet Union in the immediate post war period

brought out repressive tendencies in American society. In a manner that would later make national headlines, Sobeloff stood firm in defense of civil liberties. As City Solicitor, he sat on the City Board of Estimates. During a hearing before the Board, he defended the right of the Socialist Labor Party to use the northeast corner of Charles Street and North Avenue for political speeches, noting that religious groups traditionally used it for public gatherings on Sundays. Howard E. Crook, the City Comptroller, asked the representative of the Socialist Labor Party, “Is it true that your organization is opposed to the capitalistic system in America?” When the Socialist Labor representative replied affirmatively, Crook responded, “That’s all I want to know.” In vain, Sobeloff argued that if such meetings obstructed free passage or created a nuisance, then the city should ban all gatherings on the corner; if not, such meetings seemed an appropriate use of the corner, and the city should not concern itself with what doctrines the speakers expounded. He stood alone as the Board voted two to one to deny use of the corner to the Socialist Labor party.

The Democrats returned to city hall in 1947, but the new mayor, Thomas D’Alesandro, Jr., asked Sobeloff to stay on as City Solicitor, despite attacks from members of his party for retaining several Republicans in high offices. The City Solicitor planned to return to private practice on July 1, but the Mayor prevailed upon him to remain. In addition, D’Alesandro named him as General Counsel to the Housing Authority of Baltimore. Sobeloff did resign as City Solicitor in December, but he remained as counsel to the Housing Authority, and D’Alesandro retained him as a legal consultant, particularly on labor matters.

Throughout the late 1940s, Sobeloff remained active in many of the issues in which he had demonstrated concern – civil rights, civil liberties, and housing. At a meeting of the Advertising Club in Baltimore, Sobeloff lashed out at discrimination, chiding theatre owners who allowed blacks into their establishments to appear onstage but not as patrons. The prejudiced man, said Sobeloff, injures not only his target but himself, for his bigotry “degrades his humanity.” He also opposed the Ober anti-subversive law, one of many state laws passed in the wake of the cold war and President Harry S. Truman’s Loyalty Program. Refusing to be swept up in the hysteria, Sobeloff warned that the law failed to include safeguards to insure that its administration could not “be misused to molest and intimidate those who espouse unpopular but not disloyal causes.”

Sobeloff and Senator Harry P. Caine (R., Wash.) appeared on the speakers program of the National Convention of Councilmen and Aldermen in 1950. Caine spoke first, attacking public housing as a subsidy being foisted on taxpayers for the benefit of a small group. When Sobeloff’s turn came, the counsel to the Baltimore Housing Authority challenged Caine’s assertion that public housing was always rejected when put to a vote, pointing out that 350 cities, including nearly all with populations over 500,000, had already initiated such programs. Farmers were subsidized, newspapers were subsidized (through favorable mailing rates), and many less worthwhile causes received subsidies, he argued: Why not public housing? Sobeloff found it extremely ironic that those who voted subsidies for “private builders and loan associations” would raise the spectre of socialism when “we try to provide housing for our own underpriviledged citizens.” “A century ago,” he reminded the audience, “the same arguments used by Senator Caine were used against” free public schools.

Return To Private Practice

During this period, his private practice was growing rapidly. His clients included banks, race tracks, Rosa Ponselle, and the Baltimore Colts, but he remained deeply involved with both city and state government. He took an active part in his friend McKeldin’s successful race for governor in 1950, after which he functioned as “first minister” in McKeldin’s “kitchen cabinet.” In March 1951, McKeldin appointed Sobeloff to head a commission to make an extensive study of the operations of state government. The “Little Hoover Commission,” or “Sobeloff Commission,” as it came to be known, did an exhaustive study of every aspect of state government, from taxation, to budgeting, to the structure of the executive Branch.

In addition, he continued as counsel for the Baltimore Housing Authority, causing one reporter to comment that Sobeloff had two direct lines on his desk, one to McKeldin and one to D’Alesandro. When the City Council Housing Committee held hearings on a bill to lay the groundwork for the transfer of three federal housing projects to the Housing Authority, the Real Estate Board opposed the measure on the ground that it would extend subsidized public housing. Representing the Housing Authority, Sobeloff charged that the Real Estate Board favored subsidies for the rich but not the poor. He could not understand how the Board could have just urged Washington to contribute to insurance mortgages of well-heeled builders but “when we try to take a family out of a rathole, they cry socialism.”

In April 1952, Sobeloff and McKeldin left on a trip to Israel, with a planned stop in Paris to see General Dwight D. Eisenhower. The meeting had been arranged by Thomas E. Dewey, the leader of the Eastern, or liberal, Republicans, who was busy promoting Eisenhower’s candidacy for President. Shortly before they left, Robert A. Taft, the Republican leader in the Senate and conservative favorite for President, called McKeldin and warned him not to be swept off his feet. McKeldin, Sobeloff, and their wives lunched with the Eisenhowers, after which reporters asked McKeldin whom he would support. McKeldin replied that he had commitments from the Maryland delegation to support his favorite son candidacy on the first ballot, but added that he always followed the lead of Tom Dewey. Several months later, Sobeloff wrote the speech with which McKeldin nominated Eisenhower at the Republican convention.

Solicitor General

That December, McKeldin appointed his long-time friend and advisor to succeed Charles Markell as Chief Judge of the Maryland Court of Appeals, making Sobeloff the first Jew to sit on Maryland’s highest court and only the fifth member of his faith to head a state’s highest tribunal. He served in that office only a little over a year, for, on January 21, 1954, President Eisenhower appointed him Solicitor General of the United States. Two and a half weeks later, the Senate unanimously confirmed him. During the nomination hearings before the Senate Judiciary Committee, Senator William Langer (R., N.D.) was so impressed with the Marylander’s qualifications and the favorable testimony offered on his behalf, that he asked if Mrs. Sobeloff were present. When it turned out that she was not, he ordered a transcript of the hearing sent to her. Simon Sobeloff took office on February 25, 1954.

During his term as Solicitor General, he played a major role in determining two of the most hotly debated issues of the 1950’s, civil rights for blacks and civil liberties in the face of the red scare. When Sobeloff took office, the arguments in the series of cases know as Brown v Board of Education had been completed. After considerable hesitation and debate, the government had submitted a brief siding with the NAACP arguing against segregation. On May 17, 1954, Chief Justice Earl Warren, speaking for a unanimous Supreme Court, ruled that “separate educational facilities are inherently unequal.” Therefore, he continued, segregation deprived the plaintiffs and others similarly situated of the equal protection of the laws guaranteed by the Fourteenth Amendment. Acknowledging that the wide variety of local conditions presented by the cases created problems of “considerable complexity” in formulating decrees, the Court ordered the cases restored to the docket and requested both sides to provide further argument on implementation.

As Solicitor General, Sobeloff inherited the responsibility for representing the government in the upcoming legal battle over implementation. He and Philip Elman, the Special Assistant to the Attorney General on Civil Rights, prepared a brief arguing that the Court’s equity power made it unnecessary to order immediate relief, but that if the Court ordered a gradual adjustment, the decree should stress that the vindication of the children’s rights should be “as prompt as possible.” Relief short of immediate admission to non-segregated schools necessarily implied the continuing deprivation of these rights. They recognized that popular hostility posed a problem, one which needed to be recognized and “faced with understanding,” but it afforded “no justification for a failure to end school segregation.” Finally, the wide variance in local conditions made a single blueprint or formula impracticable; therefore, they suggested remanding the cases to the courts of first instance with instructions requiring school boards to submit a satisfactory plan to desegregate within ninety days. If the school board’s plan made no attempt at good faith compliance, the court would be required to order desegregation beginning the following school term.

On Saturday morning, November 20, 1954, the Solicitor General met with the President to discuss the brief. Eisenhower changed the wording to “as prompt as feasible,” eliminated a section which argued that the experience of the armed forces demonstrated that contact between the races diminished prejudice, and added a passage explaining that segregation existed for a long time with the moral and legal sanction of institutions in the South, and that, just as the Court recognized psychological factors in eliminating segregation, it should recognize similar factors in demanding compliance. Despite the changes, the brief won praise from the liberal and moderate press both in the North and South. The Court’s implementation ruling closely followed the outline of the government’s brief. It omitted, however, the ninety day time limit, replacing it with an order that desegregation begin immediately and proceed with “all deliberate speed.” Much of Sobeloff’s subsequent career would be devoted to implementing and clarifying that decision.

His tenure as Solicitor General also thrust him into the center of the maelstrom of Cold War anti-communism. By the time Sobeloff assumed office, the controversy over internal subversion had been raging for years. He openly expressed criticism of some aspects of the loyalty program, stressing in his public speeches the importance of maintaining national security without abandoning traditional procedural safeguards for the rights of the accused. If democracy were to survive, he warned, “we must discipline ourselves to respect the rights of those who honestly differ with us, and to accord fair treatment and due process even to those of whose bad faith we are convinced.” Setting aside procedural “guarantees to serve the immediate purpose “would render them unavailable” to prevent the crushing of honest and loyal men. Just as he had opposed the overzealous prosecutor of prohibition days, he had no sympathy for the witch hunter of the McCarthy era. “If we, ourselves, pull down the edifice of our freedoms, wherein,” he asked, “is our triumph?” Nor did he limit his opposition to words alone. In the face of pressure from within the Justice Department, he refused to appeal the case of Owen Lattimore, a far-east expert at Johns Hopkins University, after Judge Luther W. Youngdahl of the Court for The District of Columbia declined to uphold an indictment.

The case of Dr. John Plunnet Peters, however, brought Sobeloff into direct conflict with the administration and onto the front page of the newspapers. Peters, the Senior Professor of Medicine at Yale University, also served as a part time consultant to the Public Health Service. From four to ten days a year, he came to Washington to review grant applications. In January 1949, the department loyalty board decided that no reasonable ground existed for believing that he was disloyal to the United States. On April 30, 1951, Truman issued an executive order changing the standard for dismissal of government employees from “reasonable grounds for belief that the employee was disloyal” to “a reasonable doubt as to the loyalty of the person involved.” The department board held another hearing and again cleared Peters. Later that month, the Loyalty Review Board “post audited” (reviewed on its own initiative) Peters’ case, and on May 22 found that a reasonable doubt did exist as to his loyalty.

Peters sought remedy in the court system. After losing in the District Court for the District of Columbia, Peters’ attorneys, the prestigious and public minded firm of Arnold, Fortas, and Porter, appealed to the Supreme Court. When the Peters case came to his desk, Sobeloff initially concluded that it was not the ideal case with which to review the security program, since it involved the Truman administration’s program, which had since been replaced and it also involved the post audit procedure, which could easily become the determining factor in the Court’s decision. Moreover, after reviewing the file, Sobeloff was skeptical of the evidence against Peters and uncomfortable that the names of some of the informants against him were withheld from both Peters and the Board. He sent a memorandum stating his position to Attorney General Herbert Brownell. Moreover, he told Brownell that he was “bound to conclude that the government can no longer confidently rest upon any easy generalization that a loyalty or security program for its employees raises no constitutional difficulties because Government employment is a ‘privilege and not a right.’ “Of course,” he agreed, “no person has a right to a federal job, any more than he has a right to a radio station license or an air route certificate. But it does not follow that he has no right to due process.” Asserting that the Fifth Amendment “is a command to the Federal Government that it must afford due process in all its dealings with citizens in matters affecting their life, liberty or property,” he proposed a confession of error – an admission that while the government won the case in the lower court, justice would best be served if the decision in its favor were reversed. He ended with a ringing challenge to the administration to live up to its articulated principles:

The President recently said in his State of the Union Message, We shall continue to ferret out and to destroy communist subversion. We shall, in the process, carefully preserve our traditions and the basic rights of every American citizen. Now is the time, and this case the appropriate occasion, I believe, for showing the Court and the country that the administration is as firmly pledged to the second sentence as to the first.

Apparently Brownell found Sobeloff’s arguments convincing, and the Solicitor General drafted a brief reflecting the views expressed in his memo. Several members of the Justice Department, including the Assistant Attorney General in charge of the Internal Security Division, William Tompkins, and Warren Burger, Assistant Attorney General in charge of the Civil Division, disagreed with Sobeloff’s position. Sometime between February 16 and 18, 1955, Brownell changed his mind. Columnist Joseph Alsop believed that Vice President Richard M. Nixon and other “politicians” exerted the decisive influence. Sobeloff himself suspected that FBI Director J. Edgar Hoover convinced Brownell that a confession of error would not be in the best interest of security; the FBI wanted to continue to protect the identity of its informant.

In any case, Sobeloff now faced a dilemma. He felt that he could not argue the government’s case under such circumstances. Recognizing that an advocate need not agree with his client’s position, he nevertheless believed strongly that such a course did not reflect the best interest of the government or the development of law in the United States. Although torn between two loyalties, there was no doubt in Sobeloff’s mind as to which course was proper. He informed Brownell that he could not argue the case for the government. David Bazelon agreed with Sobeloff’s action in principle, but the consequences of such a decision disturbed him. He believed that the Solicitor General was “cutting off a likely appointment to the Supreme Court.” He wanted to make sure that Sobeloff felt no pressure from his friends. Sobeloff assured Bazelon, “No, I do not take this step because I want to be able to live with my friends. I do it because I have to be able to live with myself.”

A new brief, actively supporting the case, was prepared and signed by Brownell, Deputy Attorney General J. Lee Rankin, Tompkins, and Burger. Burger argued the case before the Supreme Court and lost. Although both sides pressed for a constitutional decision, the Court, as Sobeloff originally predicted, ruled in Peters’ favor on the ground that the post audit procedure exceeded the jurisdiction granted the Loyalty Review Board by Truman’s executive order. Justice William O. Douglas wrote a separate concurring opinion, taking his brethren to task for not deciding the procedural issue of confrontation. He sent his reading copy of the opinion to Sobeloff, with the inscription: “Dear Simon: I wanted you to have this document. With it come my affectionate regards. WOD.”

Several months before the Peters case reached the Justice Department, Brownell had discussed with Sobeloff the possibility of replacing Morris Ames Soper on the United States Court of Appeals for the Fourth Circuit. Soper was ill and tired, and he sincerely wished to retire. After the developments surrounding the Peters case, however, Sobeloff hesitated to accept the judgeship, fearing it might take on the appearance of a political deal. While the Justice Department prepared to argue the case without him, he wrote a letter to his old friend and mentor, Judge Soper. Sobeloff restated his belief that he should not accept a judgeship while the Peters case was still pending, for people “would disbelieve the fact that the offer was made long before the action in that case and they would question the Department’s and my motivations.” He expected a decision in June and expressed the hope that “matters might remain in status quo until then, but I fully understand your desire to be relieved as early as possible. It would be a poor way to repay my heavy debt to you for a lifetime of kindness if I failed to realize – as I readily do realize – that I have not right to ask you to delay on my account.” “The decision,” he concluded, “must be, and is, entirely yours.” As it turned out, Soper waited to announce his retirement, and Sobeloff was appointed to the Fourth Circuit, but not until the Court had decided the Peters case.

Fourth Circuit Court of Appeals

Eisenhower first submitted the nomination to the Senate in 1955, and opposition immediately developed, let by Strom Thurmond and Olin Johnston of South Carolina. Although they argued that South Carolina deserved the appointment, they objected primarily to Sobeloff’s participation in the school desegregation cases. When Congress adjourned in August, the nomination remained bottled up in Senator James O. Eastland’s (D., Miss.) Judiciary Committee. As the session neared a close, the nominee received a letter from his closest friend, Paul Berman, telling him not to worry too much about the “explosion” he had created in South Carolina and reminding him that “four score and fifteen years ago, South Carolina attempted to withdraw from the Union for much less cause” – the election of Abraham Lincoln. Sobeloff’s response reveals much about the humor he could bring to the most trying situations.

Isn’t it strange how much turmoil a peaceloving man can get into? Here it is only twenty-five years ago that Coleman, J. tested my soul. Now he has left the bench and my friends from South Carolina have taken over. It is interesting to watch their operations and tactics, and while I find it annoying because I am personally involved, looking at it as objectively as I can, it is rather amusing.

Commenting on the news that Congress would adjourn without taking action on his appointment, he reflected:

I feel reasonably philosophical about the whole thing. Justice Harlan was held up for many months, not for anything he did but for something his grandfather did . . . Chief Justice Warren was forced to undergo a long delay . . . They all survived and so will I.

Eisenhower resubmitted the nomination in January 1956. Gearing himself for the ordeal ahead, Sobeloff compared himself jocularly to a man awaiting his hanging. When the preacher rushed in and implored the prisoner to renounce the devil and his works, the prisoner replied, “I’m sorry, but in my position I can’t afford to offend anyone.” In the course of the Senate hearings, Southerners opposed confirmation because of the nominee’s views on civil rights, his philosophy of judicial activism, his refusal to argue the Peters case, and because of trumped up charges claiming a conflict of interest in the Baltimore Trust case. Senator Sam Ervin (D., N.C.) testified that Sobeloff’s racial views made him “obnoxious” to the people who would be subject to his judicial rulings and to six of the ten senators from the states of the Fourth Circuit. In spite of their efforts, the majority report rejected as “baseless” the charges relating to the Baltimore Trust investigation and rejected all other objections to the nomination by a vote of nine to two. After a heated debate on the floor of the Senate which raged for four hours, the Senate voted to confirm the nomination 64-19. Voting against him were fifteen southern Democrats and four Republicans, including Joseph McCarthy, William Jenner, and Herman Welker. “When I mention them,” Sobeloff reflected years later, “I can take some pride in their opposition.” Four days later, Senator Joseph O’Mahoney (D., Wyo.) claimed that “no man was ever more thoroughly examined, no man more falsely accused.”

Wearing the same robes he had worn to be sworn in as Chief Judge of the Maryland Court of Appeals, he took the oath of office administered by Judge Soper on July 19, 1956. Slightly less than two years later, Chief Judge John J. Parker died, and on March 17, 1958, Sobeloff succeeded him as Chief Judge of the Fourth Circuit.

During his seventeen year tenure, his opinions broke new ground in areas of reform of the criminal justice system, legislative reapportionment, and civil rights. A leading advocate of sentencing reform, he argued that although the law safeguards the rights of a defendant at every stage of the trial, “it leaves him almost completely without protection when he stands before the judge to be sentenced.” For the nine of every ten defendants who plead guilty, the nature of punishment was the only issue, yet the law granted “a single judge the sole responsibility for this vital function.” Studies uncovered “shocking abuses and irrational disparities,” and, as long as the sentencing judge possessed “virtually unrestricted” discretion, “grossly-mistaken, arbitrary, and emotionally-dictated judgments” would continue. The “fantastic vagaries” attendant upon such a system, he concluded, destroyed the “mightiest sanction of the law – respect for the courts.” He favored a review of sentences by appellate courts, which were removed from the “emotional overtones” of the trial and tended to view cases from a broader perspective. The very existence of such a review would have a “sobering and moderating effect,” which would make its exercise “unnecessary in all but a few cases.”

Constrained by the law, he generally declined to review sentences imposed within statutory limits. Nevertheless, he sometimes took an opportunity to suggest to a lower court judge that a sentence should be reconsidered. In one case, a small time gambler, convicted on two charges of gambling, had managed to irritate the trial judge, who responded by giving him concurrent five-year sentences. On appeal, Sobeloff, writing for the Court, upheld one conviction but remanded the case so the judge “might consider the sentence” in light of the partial reversal. The district judge, “heeding the hint” from above, as he put it, reduced the sentence to two years. Such a limited role could not always produce the desired result. A young man with no previous record forged a small check and pleaded guilty to the charge. In the two years between his arrest and the final disposition of the case, his exemplary conduct prompted the probation officer to recommend probation. Nevertheless, the judge sentenced him to three years in prison. Once again speaking for a majority, Sobeloff expressed “a sense of perplexity and concern” over the severity of the sentence and remanded the case, despite the rule that it was not the function of the appellate courts to review sentences. Defiantly, the district judge promptly resentenced the prisoner to a three-year term.

One of the most significant developments of the 1960s was legislative reapportionment to insure that each person’s vote carried equal weight. In many states, rural areas dominated state legislatures because of unequal apportionment of representation or antiquated methods of electing representatives. In April 1962, a three-judge panel composed of Sobeloff, Roszel C. Thomsen, and Edward S. Northrop declared invalid a provision of the Maryland constitution fixing at six the maximum number of delegates any one district could have in the House of Delegates. A year later, the same panel ruled that the unit rule convention vote was unconstitutional. Under unit rule, the candidate receiving the majority of the votes received the votes of all the electors from that district. The number of electors, in turn, was based on the representation in the state legislature. The system worked to allow the counties with 76% of the state’s population only 52% of the votes established under the unit rule. Finally, following the lead of the Supreme Court, the judges invalidated Maryland’s congressional districts and ordered the drawing of new boundaries.

In his function as a judge, Sobeloff continued his career-long opposition to illegal or excessive exercises of police power. In 1966, Richmond police arrested two men on a charge of “night prowling” (suspicion of moving about at night for some illegal purpose). The arresting officers suspected the men of involvement in a recent chain of burglaries. After the arrests, the policemen discovered that a burglary had occurred earlier that night, and, on the basis of evidence found on the suspects, charged them with that crime. That evidence proved sufficient to have the suspects indicted and convicted. The attorneys for the two men challenged the conviction on the ground that the evidence used at the trial had been illegally obtained. Speaking for the Fourth Circuit, Sobeloff overturned the convictions, ruling that the police had no probable cause for detaining the men in the first place and that evidence garnered as a result of an illegal arrest could not be used in court. A year earlier, a wider scale abuse had come to the court’s attention. The Baltimore police, anxious to capture Earl and Sam Veney, two young blacks accused of killing one officer and wounding another, formed a flying squad of fifty to sixty policemen armed with submachine guns, tear gas, and bullet-proof-vests. In the course of nineteen days, they searched some three hundred homes in the black community without search warrants. The NAACP sought an injunction against such searches, but the district judge declined to grant one. Sobeloff wrote the opinion reversing the lower court and enjoining the police from conducting further illegal, blanket searches, characterizing the actions of the police as “the most flagrant invasions of privacy ever to come under the scrutiny of a federal court.”

It was in the area of civil rights, however, that Sobeloff made his greatest mark. With increasing activism, he sought to secure equal treatment under the law for black Americans. During Sobeloff’s first few years on the court, the Fourth Circuit reacted cautiously to desegregation. Pleas for cooperation and Judge John J. Parker’s formulation that Brown required desegregation not integration marked the court’s initial response. In the closing years of the 1950’s, Sobeloff refused to stay a series of district court orders requiring desegregation of public schools. Stays would be granted, he told the school boards, only if needed to work out problems accompanying the conversion to desegregated schools. Since Virginia’s massive resistance laws stripped local school authorities of control when faced with a desegregation order, it was impossible for them to meet that requirement. After the laws were struck down, Sobeloff did grant a stay of eight months to the Charlottesville, Virginia School Board in exchange for good faith implementation of a program to admit blacks to previously all white schools. He denied, however, similar requests from Warren County, Norfolk, and Arlington.

In 1959, Sobeloff headed a three-judge panel which struck down Virginia’s school closing law, ruling that it “effectively required a continuation of racial discrimination.” The decision broke the back of Virginia’s “massive resistance,” and, for the first time, a handful of black children entered previously all white schools in districts all over Virginia. Nevertheless, real integration remained a long way off. In 1960, the Fourth Circuit was still approving grade-a-year plans and allowing academic tests, “provided factors of race and color [were] not considered.”

Beginning in the early sixties, Sobeloff demonstrated increasing impatience with southern plans for evasion and became less willing to trade deadlines for good faith. In 1962, Sobeloff handed down two decisions that marked the end of tokenism and moved the Fourth Circuit closer to a policy of enforcing racial equality. The city of Roanoke, Virginia, operated a rigid “feeder” system, which assigned children to one of six sections. Each section was served by an elementary school, and, upon graduation, all of the students attending an elementary school attended a given junior high and then high school. The sections were based not on geography, but on some vague notion of “neighborhood,” and the entire black community fell within one section. Writing for the Court, Sobeloff rejected the plan and noted that the Roanoke school system had “disavowed any purpose of using their assignment system as a vehicle to desegregate” their schools. One month later, Sobeloff declared that a similar plan operated by Roanoke County functioned “in flagrant disregard of the Supreme Court’s decision” in Brown. That same year, the Fourth Circuit, in a per curiam opinion, struck down Charlottesville’s pupil placement plan on two grounds: first, although each student was assigned to a school in his residence zone, pupils whose race constituted a minority in that school could transfer to a school in which their race was a majority; and second, because academic tests were given to black pupils who requested to enroll in predominately white schools, but white pupils were admitted without tests. The end of “minority transfer” removed a major weapon from the southern arsenal of evasion.

The following year, 1963, he persuaded his court to join in ruling that, eight years after Brown, Lynchburg, Virginia’s grade-a-year “time schedule [was] too slow and unduly protract[ed] the process of desegregation.” In another case, Powhatan County, Virginia maintained two separate schools, each encompassing all grades from elementary through high school. One had a black faculty and black students, the other a white faculty and white students. Sobeloff found that the record disclosed “a persistent purpose and plan on the part of the defendants to deny the plaintiffs their constitutional rights.” He ordered that the black children involved in the suit be admitted to the white school at the beginning of the upcoming school term. Moreover, in view of the school board’s “long continued pattern of evasion and obstruction,” he decided that “justice would not be attained if reasonable counsel fees were not awarded in a case so extreme.” Sanford Rosen, a former clerk of Sobeloff’s, believed this to be the first school segregation case in which an appellate court awarded counsel fees. That same year saw the Arlington County schools before the Fourth Circuit once again. This time the school board had asked the district court to dissolve the desegregation injunction entered against it in 1956, arguing that since it no longer followed a policy of segregation the injunction was unnecessary. The lower court agreed and entered orders dissolving the injunction. Writing for a three-judge panel, Sobeloff unequivocally reversed the lower court’s decision. He brushed aside the board’s recent conduct as constituting only a “good faith beginning of compliance,” which fell far short of erasing years of obstruction.

The next round of litigation involving the Arlington County schools took a curious turn when, finally acting to fulfill its constitutional obligation, the school board divided the county into two districts, each consisting of approximately 75% white students and 25% black students. A suit filed by the parents of white students charged that the plan “took race into consideration” in assigning students and therefore violated the Constitution. It also charged that the plan denied equal educational opportunities because seventh graders were separated from older students. The district court enjoined the plan. Speaking for the court, Sobeloff overturned the decision saying: “It would be stultifying to hold that a board may not move to undo arrangements artificially contrived to effect or maintain segregation on the ground that this interference with the status quo would involve ‘considerations of race.’” He examined the district court judge’s conclusion that the plan denied the white students equal protection and found it to be “clearly erroneous.” When a school board attempted to eliminate or reduce segregation, “Courts are not commissioned to enter into a debate with school authorities as to which redistricting plan among several is preferable.” In stern language he lectured to the district judge, reminding him that “there is no legally protected vested interest in segregation.”

In an attempt to undercut a class action suit on behalf of several black children requesting admission to all-white schools in Greene County, Virginia, the Virginia Pupil Placement Board granted several of the requested transfers. As they hoped, the district judge ruled the case moot and refused to enter injunctive relief. The case reached the Fourth Circuit in 1964. Clearly out of patience and wanting to move beyond tokenism, Sobeloff overturned the lower court’s decision.

It is too late in the day for this school board to say that merely by the admission of a few plaintiffs without taking any further action, it is satisfying the Supreme Court’s mandate for ‘good faith compliance at the earliest possible date.

The Civil Rights Act of 1964 mandated an end to segregation, and the Supreme Court ruled in 1968 that school districts must integrate, not merely desegregate, to meet the requirements of Brown. During those years, consensus on the Fourth Circuit began to break down. Sobeloff reached the age of mandatory retirement and resigned as Chief Judge at the end of 1964, and, although he remained as an active circuit judge, he wrote only one more opinion for a majority in a school desegregation case. In fact, he prepared many more concurrences and dissents than he actually filed; often the circulation of his separate opinion provided the impetus for altering the thrust of a majority opinion, making it unnecessary for him to write. Moreover, to preserve credibility, he often chose to withhold his own opinion, even if the majority would not compromise to his satisfaction. Although he often could not command a majority on the Fourth Circuit, he enjoyed a remarkably high rate of success in directing cases to the Supreme Court. One commentator noted that a dissent by Sobeloff was as good as an appeal for certiorari.

In 1964, a majority of the Fourth Circuit upheld a freedom of choice plan adopted by Richmond, Virginia, which allowed each student to select his or her own elementary school and also permitted transfers. In upholding the plan, the majority ruled that the Fourteenth Amendment did not prohibit “segregation as such,” rather “the proscription is against discrimination.” Sobeloff concurred in part and dissented in part. For Sobeloff, the plan was acceptable only as an interim measure, subject to immediate re-evaluation by the district court, and even then only “in hope of encouraging the Board so to administer the Resolution as to make it a genuine and effective plan of desegregation.” He disagreed with the majority’s construction of the Fourteenth Amendment, asserting instead that school authorities had an affirmative obligation to integrate and not merely to desegregate. He also dissented from the majority’s refusal to order an immediate inquiry into desegregation of the school district’s faculty. The Supreme Court granted certiorari and in a per curiam opinion reversed and remanded, accepting Sobeloff’s position on faculty allocation.

Sobeloff continued his attack on freedom of choice plans with special concurrences in two cases handed down in 1967.

‘Freedom of choice’ is not a sacred talisman; it is only a means to a constitutionally required end – the abolition of the system of segregation and its effects. If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. School officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, non-racial system.’

Once again, the Supreme Court accepted the invitation to review, and once again it adopted Sobeloff’s position as its own.

In the spring of 1970, District Judge James B. McMillan ordered the public schools of Charlotte, North Carolina, and surrounding Mecklenberg County to desegregate – not piecemeal, but totally. Since 71% of the school population of the area was white and 29% black, McMillian ruled that the approximate ratio of attendance at each school should reflect those figures. He ordered attendance zones altered and bussing to achieve “racial balance.” For his action, McMillan received death threats and had crosses burned in front of his home. The Fourth Circuit cut back on McMillan’s order and ruled that the plan for massive bussing placed an “unreasonable burden” on the school districts. Sobeloff dissented; he would have confirmed McMillian’s plan. In a unanimous opinion written by Chief Justice Burger, the Supreme Court upheld McMillan’s decision. Publicly, Sobeloff expressed his gratification that “the new Court – like the old Court – has stood as a unit” on school desegregation. Privately, he must have felt gratification for much more.

Sobeloff’s last two school decisions addressed not only the issue of school integration, but the problem of racism in American society. In the first, a case arising in Claredon County (one of the school systems involved in the Brown decision), the Fourth Circuit upheld a district court order requiring the implementation of a comprehensive plan of desegregation. Three of his brethren dissented in part; fearing white flight, they would have modified the plan. Sobeloff filed a separate concurrence in answer to the dissenters. Their proposal, he wrote, was morally and constitutionally untenable. At the same time, it offered a premium for community resistance. “The linch-pin of the dissent,” he wrote was “the notion that, ideally, the goal of desegregation should be to achieve an optimal mix, consisting of a white majority” and that “desegregation should not go so far as to put whites in minority situations.” The dissent, he claimed, constituted “a direct attack on the roots of the Brown decision.” Central to the dissenters’ position was the notion that “the value of a school depends on the characteristics of a majority of its students, and superiority is related to whiteness, inferiority to blackness.” He argued that, although couched in terms of “socio-economic class” and the creation of a middle-class milieu,” such arguments rested on the generalization that, educationally speaking, white pupils are somehow better or more desirable than black pupils.”

This premise leads to the next proposition, that association with the white pupils helps the blacks and so long as whites predominate does not harm the white children. But once the number of whites approaches minority, then association with the inferior black children hurts the whites and, because there are not enough of the superior whites to go around, does not appreciably help the blacks.

Stressing that this idea was “no more than a resurrection of the axiom of black inferiority as a justification for a separation of the races,” he ended with the assertion that desegregation was not “founded upon the concept that white children are a precious resource which should be fairly apportioned.” Segregation, he declared, “is forbidden simply because its perpetuation is a living insult to black children and immeasurably taints the education they receive.”

Appropriately enough, Sobeloff’s last decision involving school desegregation found him dissenting once again. He claimed that carving out new school districts to achieve a racial composition acceptable to the white community amounted to another “evasive tactic” to avoid the clear mandate of Brown. The Fourth Circuit had held that district courts were to intercede only if they found that “racial considerations were the primary purpose in the creation of the new school units.” Sobeloff suggested a different test. He believed that if a “challenged state action has a racially discriminatory effect, it violates the equal protection clause unless a compelling and overriding legitimate state interest is demonstrated.” Relying on a standard familiar to tort law, he argued that a person is responsible for the natural consequences of his actions. On both of these points, the Supreme Court for a last time turned a Sobeloff school dissent into law. At the end of 1970, Sobeloff took qualified retirement, and, although he continued to carry a full case load until his death in 1973, most segregation cases were heard en banc, and senior judges did not usually sit on them.

School cases clearly constituted the bulk of the segregation cases Sobeloff heard on the Fourth Circuit, but they were not the only ones. In 1963, he ruled that hospitals receiving public funds could not practice discrimination. In addition, discrimination against blacks often became inextricably intertwined with the rights of the criminally accused. Such was the case of Elmer Davis, an illiterate black man arrested for the brutal rape and murder of an elderly woman. The police held him for sixteen days, during which time he was allowed no contact with counsel, friends, or family. Nor was he informed of his right to counsel. On the sixteenth day, a policeman led Davis in “prayer,” after which Davis confessed. Based on that confession, Davis was found guilty and sentenced to die in the gas chamber. When the Fourth Circuit upheld the validity of Davis’ confession, Sobeloff and another judge dissented. According to Sobeloff, “police solicitude for the defendant’s spiritual welfare would be less suspect if the police, so eager to provide a religious comfort for a man who ‘did not know how to pray’ had sent for a minister then, instead of having a policeman play the role of a minister.” Noting that Davis had confessed immediately following the prayer session, Sobeloff wryly observed that “the officer’s prayer, at least, was answered.” Skeptical of the prayer as an impetus to confession, he thought it far more reasonable to conclude “that the confession came in response to the pragmatic appeal addressed to Davis in his predicament by the lieutenant: ‘Davis, go in there and sign that paper so that you can get something to eat and get a hot bath.’” Adopting Sobeloff’s position sub silento, the Supreme Court overturned Davis’ conviction.

Sobleoff Personality

No picture of Simon Sobeloff the judge would be complete without a sense of Simon Sobeloff the man, for his humanity informed his judicial decisions. Aside from his impressive legal learning, the traits most commonly mentioned by friends and associates were his learning in fields far removed from the law and his sparkling wit. An eminent Jewish scholar, he was well versed in the Bible and the Commentaries, and was proficient in Hebrew and Yiddish (as well as German and French). Anthony Lewis found that “staff members who have served under several Solicitors General consider[ed] Mr. Sobeloff unique in, among other things, his literary knowledge and his ability to express himself clearly and colorfully.” Although for the most part self-educated, he was extremely well-read. His enormous library included an amazing diversity of subjects, dominated by history, biography, law, philosophy, and literature, and his wide range of reading frequently illuminated his professional activities. During an oral argument before the Supreme Court, he once quoted a passage from Hamlet to support his point in a tax case. His speeches also reflected the scope of his reading; on one occasion, for example, he quoted in the same speech Edmund Burke, historian Crane Brinton, Justice Oliver Wendell Holmes, Dwight D. Eisenhower, former Solicitor General Frederick W. Lehman, Benjamin Franklin, Justice Robert Jackson, and Stephen Vincent Benet. In another, he expounded on the work of Ralph Waldo Emerson, sociologist Horace Kallen, and Paul Freund to shed light on Louis D. Brandeis’ career. It is quite possible that Sobeloff is the only lawyer ever to have cited Disraeli in behalf of public housing.

His friends also commented unanimously on his sense of humor. Always pertinent, sometimes pointed, it was never cruel. It often enlivened an otherwise dull legal proceeding. As Solicitor General, he argued against a New York State law reserving to a certain few banks the right to advertise “savings accounts.” Others could accept savings but had to make do with euphemisms such as “thrift accounts.” Sobeloff likened the New York statute to a law under which one “could not call an apple an apple, but one could say it was red, round, a fruit, and had a history going back to Adam and Eve.”

Whether engaged in conversation, making a formal speech, or writing a judicial opinion, he drew on his endless collection of stories and anecdotes to inject humor into his argument as well as to clarify his points. Accepting an award from B’nai B’rith, an organization in which he had been active throughout his adult life, he told the audience that he detected in the proceedings a “kind of postmortem flavor,” and claimed to benefit from “the etiquette of such occasions, which decrees against saying anything except in praise of the subject.” He warned the speakers, however, that the room was filled with people who had know him for many years, suggesting that it probably was on just such an occasion that Homer said, “Praise me not too much, nor blame me, for thou speakest to the Greeks, who know me.”

Trim and vigorous until the very end of his life, he was always immaculately groomed. His distinctive physical features were his warm brown eyes, close-clipped mustache, and strong, gentle hands. He admitted to having little athletic inclination or ability, but admired those who did. Moreover, he was an avid walker, and frequently declared that “you don’t have to get violent to get adequate exercise.” Friends, family, and associates were often drafted to accompany him on long strolls wherever he happened to be. Intensely curious about his surroundings, he loved to explore them on foot, satisfying both his curiosity and his need for exercise. He was a devoted family man, deeply involved with the upbringing of his children and grandchildren.

Irene, his wife of fifty-four years, was a talented woman and an active member of numerous organizations. Her longest term commitment was to aiding immigrants in obtaining citizenship. As a member of the National Executive Committee of the National Council of Jewish Women, she served as Chairman of the Service to New Americans Committee. She also was a leader of the Nationality Committee of Baltimore (later the Nationality Committee of Maryland). Other organizational commitments included the Presidency of the Baltimore Section of the NCJW and the Maryland Federation of Women’s Clubs. A talented painter, she also had a reputation as a most imaginative hostess. Towards the end of her life, she was stricken with a serious illness, which brought about profound changes for her husband as well. She remained an invalid for most of a decade, requiring constant care. Until her death, which came less than a year before his own, he insisted that she be cared for at home, where he could help minister to her needs.

Throughout his life, Sobeloff participated actively in the affairs of the Jewish community. At various times, he served as a Director of the Associated Jewish Charities, Director of the Jewish Educational Alliance, an officer of the American Jewish Congress (until he became a judge), a Trustee of the Jewish Publication Society, and a member of B’nai B’rith (he was one of the founders of Menorah Lodge). Early in his career, he earned a place of respect in the Jewish community of Baltimore when he functioned as the catalyst and one of the founders of the Court of Jewish Arbitration, which settled differences between Jews out of court. It was designed to deal particularly with Jewish matters that the court system was ill-equipped to handle, such as a disagreement between synagogues. In 1933, he spoke out against Hitler’s treatment of the Jews and played a large role in attempting to arouse public consciousness in this country and to promote Jewish immigration from Germany. In his advocacy of this cause, he met with great frustration. Years later, he would ruefully remember that Roosevelt “didn’t do a great deal” to help gain admission to this country for the victims of Naziism. “A lot of these people could have been saved,” he sighed. In the mid-1930s, a number of Jewish organizations in Baltimore decided to unify their efforts to combat the problems of Naziism and anti-semitism. Banding together under the newly formed General Jewish Council, they made Sobeloff their first chairman. An early and active supporter of the state of Israel, he told American Jews that loyalty to Israel need not conflict with nor detract from their loyalty as Americans.

To all who knew him well or worked closely with him, Simon Sobeloff was first and foremost a teacher. Lawyers at every stage of the profession reported that working with him could be a legal as well as a liberal education. His former law clerks told of the interest he demonstrated in their presentations, particularly his willingness to point out fallacies in their arguments while debating each point fully. They also remembered the careful attention paid to their writing. Betsy Levin recalled the way he edited their efforts, “transforming a pedestrian, plodding legal analysis into a carefully crafted opinion that eloquently ‘sang.’” She also remembered that he had to be watched on occasion. Once, after submitting a draft, she had to point out to the judge that he had just edited Chief Justice Earl Warren. Eugene Feinblatt, who joined Sobeloff’s firm as a young lawyer, admits to having felt some trepidation in approaching an older attorney who had already been United States Attorney and City Solicitor of Baltimore. He related how Sobeloff’s respect for the opinions of his younger colleagues and the natural warmth of his personality soon dissipated the feeling of timidity. Remembering him as a “natural teacher,” Feinblatt remarked that “no specious argument escaped his eye and he delighted in discussing the latter with his young colleagues, leading them through a rigorous analysis and pointing out the unanticipated consequences of unwarranted assumptions.” Feinblatt’s prose, like that of Sobeloff’s clerks, came under careful scrutiny, for Sobeloff had little tolerance for “obscure or florid prose.” Nor was he reluctant “to employ the blue editorial pencil, although he accompanied its use with patient explanations which served to ameliorate the sting of the criticism.” At yet another level of the legal profession, Judge J. Braxton Craven remembered how important Chief Judge Sobeloff was to a new judge. Having been recently appointed to the Fourth Circuit, Craven sent a copy of a speech he had given to Sobeloff. The Chief Judge wrote back that it was “entirely unnecessary to convince me that you are not a reactionary” but took the liberty of suggesting that the younger man needed “to develop a more relaxed attitude and stop worrying when you do what your conscience and sense of justice approve, that this must be somehow false to the law.”

Is it not the mark of a good judge that he concerns himself to find within the framework of the law the way to a just result? Cardozo somewhere speaks of the judge who needlessly sacrifices justice because he will not see that it can be squared with law, and therefore “plunges the knife with averted gaze.”

The measure of the effect that letter had on the younger jurist is reflected in a letter Craven wrote to Sobeloff on the latter’s qualified retirement in 1970.

Probably more than anyone else you have influenced my growth as a judge. I will never forget something you said to me nine years ago on my first trip to sit on the Fourth Circuit in Richmond. When you decide a case, you said, decide it the way you think it ought to be decided, even though it may seem to be directly in the face of a Fourth Circuit opinion. How do you know that we have not been dissatisfied with that opinion and would like the chance to take a fresh look at it? Do what you think is right.

Craven then quoted from the letter Sobeloff had sent him nine years before, concluding that, “Because of our association, I believe that I have become a better judge than I ever would have been, and I hope, a better man.”

Nor were his talents as a teacher limited to those associated with in the legal profession. He often sent copies of opinions and news clippings to family members to keep them informed or just to make them think. An overwhelming proportion of the clippings he sent his college-age grandson dealt with government encroachments on First Amendment freedoms and the Vietnam War. At one point, he sent an article reporting on a decision he had handed down. Apparently, the grandson believed the article unfair to his grandfather and responded with a vigorous attack on the author of the article. The judge responded quickly.

I do think you are unduly severe on the reporter who authored that brief article. Neither when I first read it nor now do I detect the slightest ground for complaint. . . . I do not sense that he made me out to be an “ogre.” You should be more tolerant in your judgment. Even if there were some offense in the item – and I see none – you should learn to measure your condemnation. Tacitus calls moderation “a virtue not to be despised by the most exalted of men, and prized also by the gods.” Anyway, I appreciate your loyalty, fierce though it may be.

Sobeloff himself could be “fiercely” loyal as well. He enclosed in one letter an article quoting a senator attacking the Bazelon Court for its excessive leniency and asserting that a man who had planted a bomb in the Capitol would “never spend a day in jail.” Clipped to the article were the following comments:

He is nuts! He seems to think the bomber looked up the decision of the courts before deciding what to do.

Finally, no discussion of Sobeloff’s personality would be complete without some reference to the kindness and gentility of the man. This aspect of his make-up most directly influenced his legal career, for it gave rise to his philosophy of judicial activism and his concern for the underprivileged. Sobeloff himself stated it most clearly.

If I must make a choice between a judge who is completely orthodox and applies without imagination or feeling a rigid rule and another judge who is perceptive of the justice and common sense of the case, even at the expense of some harmless departure from the strictness of the legal formula – I prefer the latter.

When a law clerk would resignedly bring him a case in which application of the law seemed to work inevitably at cross purposes with a fair decision, Sobeloff would send him or her back to do more research. If the clerk still could find no doctrine that would serve justice, Sobeloff would pull out his own favorite constitutional principle, that of “’tain’t fair.”

Over and over, Sobeloff told the story of how, as Solicitor General, he listened to the Supreme Court deliver an opinion upholding the deportation of a Mexican who had resided legally in America since 1918 with his American wife and four children. The man had belonged to the Communist Party at a time when Communists appeared on the ballot in state elections, but that meant little in 1954. Justice Felix Frankfurter delivered the opinion of the Court, covering every possible point of law. Sobeloff recalled feeling that, harsh as this was, there appeared to be no way out. Then Justice Hugo Black leaned forward to deliver his dissent. “You know,” he began, “I just don’t think we mean to do people this way.” Sobeloff never forgot that incident. “Judging,” he said, “is no mechanical process. It requires sensitivity and the tincture of common sense without which the judicial process would produce at best merely an anemic semblance of justice, and at the worst a perversion of justice.” For Sobeloff, the worst fault of a judge, to be avoided above all, was “the dogmatism and excessive confidence of the judge of whom it was said: ‘He was often in error, but never in doubt.’”

Well aware that, if carried to an extreme, such a position could lead to a tyranny of a few, he did not mean that judges should be free to do as they might please. He argued that courts must “stay clear of oppression, stay clear of mere sentimentality, for it does not promote justice to practice benevolence toward one man at the expense of another.” The very basis of his activism was the belief that procedural due process must remain inviolate.

The constitutional protections asserted by a criminal today may become the necessary defense tomorrow of an honest and responsible man. If we tolerate usages destructive to freedom, if we put men in fear so that they dare not exercise the first prerogatives of free men, it is certain that the victims will only be tinder for the spreading fire.

Therefore, he believed that the courts should take a more assertive role when government action limited the rights guaranteed by the First Amendment and covered by the Fifth and Fourteenth Amendments. To his way of thinking, these rights were so central to democratic government that, if diminished or limited, freedom would exist in name only; therefore, the due process which protected them could not be “balanced.”

When he was sworn in as Chief Judge of the Maryland Court of Appeals and again as a judge on the Fourth Circuit, he placed his hand over a Bible opened to the following section of Deuteronomy:

And I charged your judges at that time, saying, hear the causes between your brethren and judge righteously between every man and his brother and the stranger that is with him.

Ye shall not respect persons in judgment; but ye shall hear the small as well as the great; ye shall not be afraid of the face of man . . .

Most would agree that Simon Sobeloff lived up to that admonition.