With All Deliberate Speed: The Life of Philip Elman

Norman Silber's With All Deliberate Speed is a highly entertaining and informative presentation of Philip Elman's oral memoir. Silber's commentary, which he appends to the end of each chapter includes background material that is especially useful for readers who have only passing acquaintance with the dramatic doings of the Supreme Court during the 1940s, `50s and `60s, including brief summaries and citations of cases Elman refers to, as well as bibliographical material. The high-point of the book is Elman's recounting of his close relationship-perhaps improper ex parte relationship-with Felix Frankfurter and with his and their role in bringing about the inclusion of the phrase "with all deliberate speed" in Brown v. Board of Education. The beginning few chapters consist of Ellman's telling of his time at City College of New York and then at Harvard Law School, at which he first met Frankfurter. In the middle chapters, he recalls his two years as Frankfurter's clerk and his seventeen years in the Solicitor General's office, during which time he retained his intimate close relationship with Frankfurter. Elman's apparent comfort with Frankfurter's thinking of him as "his lifetime law clerk" is perhaps the most revealing mark of his character. The last few chapters recount Elman's work as an often dissident member of the Federal Trade Commission. Much of the material concerning the Brown-case has already been published by Silber (and Elman) in the Harvard Law Review (100) 1987, 817-52. The current book, however, has the advantage of including Elman's discussion of the criticism of both Elman and Frankurter that arose as a result of that publication, especially concerning the propriety of Elman's substantive discussion of the case with Frankfurter, as well as of his belittling of the case presented by Thurgood Marhall. It was through his frequent conversations with Frankfurter that Elman came to believe that the case could not be won without including in some fashion a proviso that would give the states time to prepare for integrated schools. Such a proviso, of course, is highly unusual. Those deprived of their constitutional rights are entitled to immediate relief. Moreover, as might well have been expected, the result of including such a proviso was lengthy delay and prolonged social turmoil. It is a humbling dilemma, and this reader deeply appreciates the opportunity to consider the thinking that led some of the key players to their decision.

While this fascinating book covers a number of interesting topics -- whether it be Harvard Law School in the 1930's; clerking for Felix Frankfurter; a long and distinguished tenure in the Solicitor General's office; or service as an activist FTC Commissioner -- probably the most significant issue is the relationship between Philip Elman and Justice Frankfurter during the Supreme Court's consideration of the Brown case. In 1987, when Harvard Law Review published excerpts from the oral history interviews upon which the book draws, quite a storm of controversy arose over ex parte contacts between Elman (then in the SG's office) and the Justice. Elman always defended himself as Frankfurter's "law clerk for life" and argued that the contacts occurred before the government knew it would enter the case. Others, such as Professors Randall Kennedy and Andrew Kaufman, were highly critical. Whether or not such contact was inappropriate, the book offers an invaluable insight into the hammering out of Brown. A helpful "Afterword" discusses the controversy. The editor's outstanding and extensive notes add a great deal to the significant contributions of this volume.

If you don't know who Philip Elman is, don't let that deter you. This is a fascinating book. Elman, as it turns out--and as the cover photo suggests--was present for some of the greatest moments in mid-20th century American history. After clerking for Supreme Court Justice Felix Frankfurter--one of the greatest legal minds ever to sit on the court--Elman became a government attorney. He first worked on the denazification effort in Germany after WWII, then became a key player in many of the earliest civil rights cases of the 1940s and '50s. It was then that he helped determine history with his work on Brown vs. Board of Education, writing the government brief that first devised the notion of gradual desegregation. This was a very controversial position. Elman claims that proposing a gradualist solution was the only way to get the Court to decide in favor of desegregation. Others (including well-known scholars such as Randall Kennedy) have vigorously objected to this claim, insisting that gradualism sold out an entire generation of young black people, who were left with a handshake and a promise.Elman went on from the solicitor general's office to become a commissioner of the FTC, where he pioneered the consumer protection movement (he helped devise the now-famous health warning on cigarette packs). But the Brown material is really the heart of his story, and the moment at which, for good or ill, Philip Elman helped to shape the future of American liberalism and civil rights.This book is well-written, even funny at times, is well-documented without seeming academic, and makes for an enjoyable and fascinating read. I wish they had titled it in a way that made the subject's importance more clear, but this is really a minor quibble.