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Footnote to History

March 29, 1987

Earl Warren believed that the most important case decided during his tenure as chief justice of the United States was Baker vs. Carr, the legislative reapportionment case, but that may have been his only failure in judgment. Without question, the greatest case decided by the U.S. Supreme Court in this century was Brown vs. Board of Education, which declared school desegregation unconstitutional and changed the course of race relations in this country.

The history of how the court came to decide that case in 1954 has been gone over with a fine-tooth comb, but a new dimension has been added by an article in the February issue of the Harvard Law Review. In the article, Philip Elman, who worked for the Justice Department at the time, reveals that Justice Felix Frankfurter had long and detailed conversations with him about what the justices were thinking, and that Elman was able to use this information to shape the government's brief in the case.

Elman had been Frankfurter's law clerk in 1941 and 1942, and, he says, Frankfurter continued to treat him as his law clerk emeritus after he wentto work for the government. In that role he got an inside look at the court as it struggled with racial segregation, and his insights into the court's post-World War II era are fascinating.

On several occasions in the late 1940s Elman wrote and the Truman Administration filed briefs with the court arguing that Plessy vs. Ferguson, which upheld "separate but equal" racial facilities, should be overturned. The court invalidated racial covenants in real estate and segregated professional schools, but was reluctant to get into the question of segregated public schools. The justices well knew the social upheaval that would result from declaring them unconstitutional. At the time, 21 states maintained segregated school systems.

Brown vs. Board of Education was first argued in 1952, but the justices were badly split and could not decide what to do. Elman heard from Frankfurter that one group wanted to declare segregation unconstitutional immediately, while another group feared the social turmoil that would result. Unable to decide the case, they asked that it be reargued.

Then Chief Justice Fred Vinson, who did not want to overturn "separate but equal," died unexpectedly. Elman says that Frankfurter told him, "Phil, this is the first solid piece of evidence I've ever had that there really is a God."

Warren was appointed chief justice, but the problem for the court remained: how to overturn Plessy vs. Ferguson without tearing the country asunder. Based on what Frankfurter was telling him, Elman came up with a solution, which was incorporated into the government's brief: Grant the principle that segregated schools are unconstitutional, but do not order immediate relief. That solution became the phrase with all deliberate speed in the court's unanimous opinion. School segregation was to end, but not immediately.

"The winning formula was God plus all deliberate speed ," Elman says.

All of which leaves open the question of the impropriety of Frankfurter's discussing the case in detail with a lawyer for one of the parties in the case. "In Brown, I didn't consider myself a lawyer for a litigant," Elman says. "I considered it a cause that transcended ordinary notions about propriety in a litigation. This was not a litigation in the usual sense. The constitutional issue went to the heart of what kind of country we are, what kind of Constitution and Supreme Court we have: whether, almost a century after the 14th Amendment was adopted, the court could find the wisdom and courage to hold that the amendment meant what it said, that black people could no longer be singled out and treated differently because of their color, that in everything it did, government had to be color-blind."

Elman was able to tailor the government's brief to the dilemma that the justices faced because Frankfurter had told him exactly what they were thinking. If those improper discussions had not taken place, the case might not have come out as it did, to the ongoing shame of the United States. It may not have been right for Frankfurter to tell Elman what was going on inside the court, but it's a lucky thing that he did.

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