Judge Simon E. Sobeloff, 1894-1973

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 encompassed 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 on behalf of public housing.

His friends also commented unanimously on his sense of humor. Always pertinent, sometimes pointed, his humor 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."

Sobeloff with his friend and fellow Baltimorian H.L. Mencken. 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 known 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 Nazism."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 Nazis 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.

Simon E. Sobeloff. 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 remember 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 he 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 so 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 addressed 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.