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Lawyer, Supreme Court Justice Secretly Discussed Brown Case

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The former U.S. Justice Department lawyer responsible for civil-rights cases in the 1950's has revealed that he and a key member of the U.S. Supreme Court at that time held frequent secret discussions regarding Brown v. Board of Education, the landmark case that began the process of integration in the public schools.

Philip Elman, who served in the office of the solicitor general from 1944 to 1961, disclosed the existence and details of his conversations with former Justice Felix Frankfurter in an interview conducted for the Harvard Law School's Columbia Oral History Project. Excerpts from the interview were published in the February issue of the Harvard Law Review.

Mr. Elman, who was Justice Frankfurter's law clerk from 1941 to 1943 and remained a close confidant until the Justice's death in 1965, said in the interview that their frequent talks inspired him to write a crucial argument in the Justice Department's brief in the case.

'All Deliberate Speed'

The argument--that integration should proceed "with all deliberate speed,'' rather than immediately, as advocated by the lawyers for the black plaintiffs--provided the Court, he said, with "a way to end racial segregation without inviting massive civil disobedience, a way to decide the constitutional issue unanimously without tearing the Court apart.''

The Court, Mr. Elman said, "was nowhere ready to take on the issue'' of segregated schools in 1952, when the first of the four cases that were consolidated into the Brown litigation came before the Justices.

"The Justices ... were deliberately pursuing a strategy of procrastination,'' he said. "[Frankfurter] did not want the segregation issue to be decided by a fractured Court, as it then was; he did not want a decision to go out with nine or six or four opinions. ... At that time--1952--Frankfurter could not count five sure, or even probable, votes for overruling'' Plessy v. Ferguson, the 1896 case in which the Court held that separate-but-equal treatment for blacks was constitutional.

'Grand Strategist'

"There's no question that the grand strategist in all this inside the Court was [Frankfurter],'' Mr. Elman said. He said while he was divulging Justice Department deliberations on the case to Mr. Frankfurter, the Justice was informing him about the positions his colleagues on the Court were taking in their private conferences.

Mr. Frankfurter "didn't regard me as a lawyer for any party; I was still his law clerk,'' Mr. Elman said. "He needed help, lots of help, and there were things I could do in the Department of Justice that he couldn't do, like getting the support of [the Truman and Eisenhower Administrations] for the position he wanted the Court to come out with, so that it would not become a hot political issue.''

Mr. Elman said he had "no easy, snappy response'' to the question of whether his conversations with the Justice violated legal ethics. "In Brown I didn't consider myself a lawyer for a litigant. ... I considered it a case that transcended ordinary notions about propriety in a litigation. ... I don't defend my discussions with Frankfurter; I just did what I thought was right.''

Counting Votes

Mr. Elman said the argument that the imposition of remedies for a constitutional violation could be delayed "was entirely unprincipled.''

"It was just plain wrong as a matter of constitutional law to suggest that someone whose personal constitutional rights were being violated should be denied relief,'' he admitted. "[I] was simply counting votes on the Supreme Court.''

He also said the death of Chief Justice Fred Vinson in 1953 removed a major roadblock to unanimity on the issue among the Justices. The Chief Justice, he said, "was clearly for leaving the Constitution as it was.''

"Plessy ... had been the law of the land for over a half a century, and he was not ready to change it,'' Mr. Elman said. In contrast, he noted, the new Chief Justice, Earl Warren, "had no problem'' with the position he was advocating in Brown.

"The winning formula was God plus 'all deliberate speed,''' Mr. Elman said. "God won Brown v. Board of Education, not Thurgood Marshall [the current Justice who helped defend the black plaintiffs] or any other lawyer or any other mortal. ... He took care of the American people and little children and Brown by taking Fred Vinson when He did.''

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