VINSON, C. J., dissenting.

346 U.S.

she would act accordingly. And that is precisely what petitioners and respondent did. Moreover, we must, at this pleading stage of the case, accept it as a fact that respondent has thus far profited from the execution of this bargain; observance of the covenant by petitioners raised the value of respondent's properties. By this suit, the plaintiffs sought only to have respondent disgorge that which was gained at the expense of depreciation in her neighbors' property.

The majority speaks of this as an attempt to "coerce" respondent to continue to abide by her agreement. Yet the contract has already been breached. The non-Caucasians are in undisturbed occupancy. Furthermore, the respondent consented to the "coercion"-if "coercion" there be by entering into the covenant. Plaintiffs ask only that respondent now pay what she legally obligated herself to pay for an injury which she recognized would occur if she did what she did.

Of course, there may be other elements of coercion. Coercion might result on the minds of some Caucasian property owners who have signed a covenant such as this, for they may now feel an economic compulsion to abide by their agreements. But visiting coercion upon the minds of some unidentified Caucasian property owners is not at all the state action which was condemned in the Shelley case. In that case, the state court had directed "the full coercive power of government" against the Negro petitioners-forcefully removing them from their property because they fell in a class discriminatorily defined. But in this case, where no identifiable third person can be directly injured if respondent is made to disgorge enough to indemnify petitioners, the Court should not undertake to hold that the Fourteenth Amendment stands as a bar to the state court's enforcement of its contract law.

249

VINSON, C. J., dissenting.

Obviously we can only interfere in this case if the Fourteenth Amendment compels us to do so, for that is the only basis upon which respondent seeks to sustain her defense. While we are limited to enforcement of the Fourteenth Amendment, the state courts are not; they may decline to recognize the covenants for other reasons. Since we must rest our decision on the Constitution alone, we must set aside predilections on social policy and adhere to the settled rules which restrict the exercise of our power of judicial review-remembering that the only restraint upon this power is our own sense of self-restraint.8

Because I cannot see how respondent can avail herself of the Fourteenth Amendment rights of total strangersthe only rights which she has chosen to assert-and since I cannot see how the Court can find that those rights would be impaired in this particular case by requiring respondent to pay petitioners for the injury which she recognizes that she has brought upon them, I am unwilling to join the Court in today's decision.

See Mr. Justice Stone dissenting in United States v. Butler, 297 U. S. 1, 78-79 (1936).

346 U.S.

Opinion of the Court.

SHELTON v. UNITED STATES.

ON PETITION FOR WRIT OF CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT.

No. 235, Misc. Decided June 15, 1953.

Claiming illegal search and seizure, a federal prisoner petitioned a Federal District Court under Rule 41 (e) of the Federal Rules of Criminal Procedure for the return of property seized by federal officers and for the suppression of its use in evidence. The District Court denied such relief. The Court of Appeals affirmed. The prisoner petitioned this Court for a writ of certiorari. Confessing that the legality of part of the search and seizure was doubtful, the Government took the position that everything except stolen property should be returned to the prisoner and suggested that the judgments below be vacated and the case be remanded to the District Court for further proceedings. Held: Certiorari granted. Upon consideration of the Government's confession of error and after a review of the record in the case, both judgments are vacated and the case is remanded to the District Court for further proceedings.

197 F. 2d 827, judgments vacated and case remanded.

Petitioner pro se.

Acting Solicitor General Stern for the United States.

PER CURIAM.

The petition for certiorari is granted. Upon consideration of the Government's confession of error, after reviewing the record in this case, we vacate the judgments of the Court of Appeals and the District Court. The case is remanded to the District Court for further proceedings in light of the confession of error.

CASE ADJUDGED

IN THE

SUPREME COURT OF THE UNITED STATES

AT

JUNE 15 SPECIAL TERM, 1953.

ROSENBERG et al. v. DENNO, WARDEN.

ON MOTION FOR LEAVE TO FILE PETITION FOR ORIGINAL WRIT OF HABEAS CORPUS AND STAY OF EXECUTION.

No. 1, Misc., June 15 Special Term, 1953. Decided June 15, 1953. The Rosenbergs had been sentenced to death for conspiracy to violate the Espionage Act of 1917, and the time of execution had been fixed for the week of June 15, 1953. As the Court was about to adjourn the October Term, 1952, on June 15, 1953, their counsel submitted a motion for leave to file a petition for an original writ of habeas corpus and stay of execution. Later that afternoon, the Court met in Special Term pursuant to a call by THE CHIEF JUSTICE having the approval of all the Associate Justices. All Members of the Court were present. Held: Leave to file petition for an original writ of habeas corpus denied.

John F. Finerty submitted the motion for petitioners. With him on the motion was Emanuel H. Bloch.

PER CURIAM.

The motion for leave to file petition for an original writ of habeas corpus is denied.

MR. JUSTICE BLACK dissents.

MR. JUSTICE FRANKFURTER.

The disposition of an application to this Court for habeas corpus is so rarely to be made by this Court

Statement of FRANKFURTER, J.

346 U.S.

directly that Congress has given the Court authority to transfer such an application to an appropriate district court. 28 U. S. C. § 2241. I do not favor such a disposition of this application because the substance of the allegations now made has already been considered by the District Court for the Southern District of New York and on review by the Court of Appeals for the Second Circuit. Neither can I join the Court in denying the application without more. I would set the application down for hearing before the full Court tomorrow forenoon. Oral argument frequently has a force beyond what the written word conveys.