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Justice Frankfurter's "Junior Partner"


A Review of Norman Silber's Book on Philip Elman

By ROGER K. NEWMAN


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Friday, May. 21, 2004
Norman I. Silber, With All Deliberate Speed: The Life of Philip Elman -- An Oral History Memoir (Univ. of Michigan Press 2004)

On the jacket of Norman Silber's newly published, engrossing book With All Deliberate Speed is a picture of Justice Felix Frankfurter, sitting at his desk in 1961, signing the relevant papers before swearing in Philip Elman as a member of the Federal Trade Commission (FTC). Elman stands next to him --- looking over his shoulder. And if Elman is not quite telling Frankfurter what to write, he could be making sure the justice is writing it correctly.

Elman, who died in 1999, had by nearly all lights a successful career. A graduate of Harvard Law School and law clerk to both Judge Calvert Magruder and Frankfurter, he served in the Solicitor General's office from 1944 to 1961 (except for one postwar year in Germany). Later, he was a transforming member of the FTC.

But by his own lights, Elman was a failure. How, then, can a book on such a person be so compelling?

Much of the credit must go to its author, Hofstra University law professor Norman Silber. Silber has adapted the transcripts of a series of interviews he conducted for the Columbia Oral History Project in the early 1980s into a seamless memoir written in Elman's voice -- and Silber has also added extensive, helpful interpretive commentary.

Interesting Revelations of How Justice Frankfurter Worked

Elman clerked for Frankfurter during the 1941 and 1942 terms, and the book provides us with the best view yet of Frankfurter at work. Frankfurter would dictate an outline for an opinion, from which Elman would then write a draft opinion -- which they would jointly, and sometimes heatedly, revise.

The most memorable case of Elman's clerkship was the second Flag Salute case, West Virginia St. Board of Education v. Barnette. In this case the Court reversed an opinion of Frankfurter's three years earlier, Minersville School Dist. v. Gobitis, and held that public school students have a constitutional right not to salute the flag.

Frankfurter dictated his solitary dissent to Elman at home after dinner, finishing at 3 A.M. He went to sleep; Elman revised the draft throughout the night. Frankfurter published it with barely a change.

Elman in the Solicitor General's Office, with Frankfurter on the Bench

During these years, Frankfurter's long-term attitude toward Hugo Black and William O. Douglas began to take shape. After Pearl Harbor, says Elman, Frankfurter was "telling me about the unprincipled things [they] were perpetuating ... what new piece of mischief they were up to." It was "almost the main topic" of conversation.

The repercussions of Frankfurter's attitude were spread out over the next twenty years. Perhaps the most important way they manifested themselves was in Brown v. Board of Education.

At the time Brown was decided, Elman was in the Solicitor General's Office. There, he had primary responsibility for all civil rights cases -- as well as many antitrust and regulatory agency cases. Laudably, Elman was the government lawyer most responsible for getting the Truman and Eisenhower administrations to commit themselves to the side of the plaintiffs in the series of cases that culminated in Brown.

Although Elman's position was admirable, his tactics were not. His friendship with Frankfurter affected -- indeed, some might say compromised -- Elman's actions.

As much as any other person, Elman was a son to the childless justice. They not only saw each other regularly, but Frankfurter called Elman almost every Sunday night for "a long, relaxed, gossipy conversation."

Frankfurter's many estimable traits drew innumerable devotees. But Frankfurter also frequently attributed the worst of motives to those who disagreed with him, and sometimes even put words in their mouths.

As the Justices deliberated over how to resolve Brown, Elman recounts, Hugo Black "was frightening the other justices the most." According to Elman, Frankfurter told him that Black said, "I have to vote to overrule Plessy [v. Ferguson] "but this would mean the end of political liberalism in the South. ... The Klan is going to be riding again." (Black himself had been a Klan member in the 1920s.)

Elman's report was doubtless accurate; but Frankfurter's was not. It's true that Black rightly feared violence in the South would result if Plessy's "separate but equal" standard were overturned. But the purported comments Frankfurter related to Elman were a total fabrication.

Separating the Decision in Brown from Its Implentation: Elman and Frankfurter's Roles

Black wanted to separate the implementation of Brown from the decision. So did Justice William O. Douglas. Other justices, Frankfurter chief among them, did not. But the book reveals that Frankfurter seems to have suggested that the government should advocate that the remedy should flow directly from the decision.

"Frankfurter never expressed anything along those lines," Elman said. "But it did grow in my mind out of my many conversations with him over a period of many months." And when Elman wrote the government's December 1952 brief in the case, he included the first mention that the Court should give lower courts time to work out the remedy. This emphasis on time ultimately came to the notorious phrase "with all deliberate speed."

Elman wrote as he did because he "was simply counting votes" - at least, counting the justices' votes as Frankfurter reported them. Elman confides that "Frankfurter called me to congratulate me after we filed the brief." Elman felt he was once again being Frankfurter's "junior partner."

"In Brown I didn't consider myself a lawyer for a litigant," Elman said. "I considered it a cause that transcended ordinary notions about propriety in a litigation. ... I was on very shaky legal ground. ... It was insupportable in dealing with individual constitutional rights." He also remarks, "I just did what I thought was right" even though "as a matter of constitutional principle" this was "simply indefensible."

After Brown: Elman's Career Dreams Go Unfulfilled

After Brown, Elman recounts that he "needed to do something different. I was getting tired of writing, or rewriting, briefs." He became permanently embittered when, after a disastrous interview with Robert Kennedy in 1961, he did not become assistant attorney general as he had been led to believe he would.

Named instead to the FTC, he shook up a moribund agency through sheer force of intellect and stubbornness. He put truthfulness in advertising on the public agenda and led the agency to mandate health warning labels on cigarettes in 1964.

Elman wanted eventually to become a federal judge, which he did not tell Kennedy. By 1964, however, his most influential patrons could no longer help. In 1963, Elman's law school classmate and close friend, Washington Post publisher Philip Graham -- through whose entrée to John Kennedy Elman hoped he would be appointed to the bench -- died. In 1962, Frankfurter suffered a stroke and retired from the Court, and in 1965 he died too.

When the mourner's prayer was recited at the justice's funeral service, Elman wrote, "the dam burst, at least for me."

Philip Elman made more history than almost any other government lawyer in American history. Proud, arrogant, opinionated, abrasive, he would have appreciated this book, and for that we have Norman Silber to thank.


Roger K. Newman teaches at the Columbia University Graduate School of Journalism and is the author of Hugo Black: A Biography. He is the editor of The Constitution and Its Amendments, a four-volume encyclopedia, and the Yale Biographical Dictionary of American Law (in progress).

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