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With All Deliberate Speed

The Life of Philip Elman

Norman I. Silber

Publication Year: 2004

With All Deliberate Speed is just wonderful. It gives the reader fascinating insights into the Roosevelt era, the Supreme Court, the Justice Department. It is funny, and endearingly human. Three cheers! -Anthony Lewis, New York Times columnist, and Pulitzer Prize-winning author of Gideon's Trumpet "The fascinating, eloquent, and skillfully edited oral memoir of a distinguished public servant, who was at the epicenter of major legal controversies that his memoir illuminates. A major contribution to modern American legal history." -Richard A. Posner "With All Deliberate Speed provides an insider's rich account, spanning over thirty years, of the inner workings of the Supreme Court, the Solicitor General's Office and the Federal Trade Commission that anyone seriously interested in a frank behind-the-scenes view of the federal government should find exceptionally provocative and intriguing" -Drew Days III, Alfred M. Rankin Professor of Law, Yale University, and former Solicitor General of the United States, 1993-96 From a modest childhood in Patterson, N. J., Philip Elman rose to become clerk for the great Supreme Court Justice Felix Frankfurter, and then to a position in the U.S. Solicitor General's Office. As a member of that office, Philip Elman had an exceptional vantage point on one of the most momentous cases in U.S. Supreme Court history: Brown v. Board of Education. In this oral history memoir of Elman's life, With All Deliberate Speed, author Norman I. Silber reveals the maneuvering that led to the Court's overturning the doctrine of "separate but equal." Working behind the scenes, it was Justice Department attorney Elman who came up with the concept of gradual integration-an idea that worked its way into the final decision as the famous phrase "with all deliberate speed." Though this expression angered those pressing for immediate desegregation, Elman claims that it unified a divided Court, thus enabling them to stand together against the evil of segregation. With All Deliberate Speed records a decisive moment in Supreme Court history, but it is also Philip Elman's unforgettable oral memoir-the story of his entire career in government service, including his work with Attorney General Robert F. Kennedy as commissioner of the FTC, and his role in founding the modern consumer protection movement, which includes the antismoking campaign that put the Surgeon General's warning on cigarette packs. At once rich historical testimony and a gripping read, With All Deliberate Speed offers a rarely glimpsed insider's understanding of the politics of the American legal system.

Published by: University of Michigan Press


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pp. vii

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Introduction: Looking Backward

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pp. 1-5

PHILIP ELMAN DIED ON NOVEMBER 30, 1999, at the age of eighty-one. His career, spent transforming the law to promote civil rights, civil liberties, and economic justice, had come to an end. A group of friends gathered for a public remembrance at the Federal Trade Commission not long afterward. Those who spoke included judges, government lawyers, practicing attorneys, a journalist, and the chairman of the FTC. I It was at the Trade Commission, as well as at...

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1. A Very Young Adult

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pp. 7-16

I SUPPOSE I WAS CHEATED AS A CHILD, but I don't blame my parents. Maybe I should have been taught to play the violin—-or encouraged to go to Hebrew school or to go out and play ball. Maybe it would have been a good idea to send me away to summer camp. I never traveled. I never did any of those things. I never really had a childhood, a full...

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2. Trials at Harvard

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pp. 17-45

THE EXACT DAY OR MONTH THIS HAPPENED I don't remember, but I suspect it was probably late I935. I was in my third year at CCNY and Congress had just enacted the Wagner Act, the National Labor Relations Act, which guaranteed unions the right of collective bargaining and gave workers the right to join a labor union. There was a story in...

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3. A New Clerk, a New Judge

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pp. 46-59

My BECOMING CALVERT MAGRUDER'S LAW CLERK was a kind of accident, as I have told you. I think as we go on you'll see that almost everything that ever happened to me involved accident and good luck and just being available at the right time to the right people when they needed someone like me. Magruder's clerkship was one of many lucky opportunities that came to me. ...

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4. A Regulatory Interlude

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pp. 60-67

THE SUPREME COURT USUALLY ENDED in those days in early June, and in June 1940 at the end of the Court term, I came to Washington with the expectation that I would see Justice Murphy and that he would anoint me. And I'd get the job and go to work. But it turned out that Murphy had gone back to Michigan. He had heen governor of...

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5. The Towering Justice Frankfurter

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pp. 68-94

TO UNDERSTAND MY RELATIONSHIP with Mr. Frankfurter, it's best to return to the beginning. He was a professor at the Harvard Law School when I entered it. He was not just a professor, he was the towering member of the faculty with a towering reputation the world over. He was a close friend and advisor to presidents and governors and cabinet...

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6. The Rift on the Roosevelt Court

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pp. 95-126

DURING ROOSEVELT'S FIRST TERM he could make no appointments to the Supreme Court. Not until his second term did he get the chance to nominate someone of his own choosing, and his first appointment was of Hugo Black. That didn't come until late in 1937. Black was followed by Reed, Reed by Frankfurter, Frankfurter by Douglas, and Douglas by Murphy, who was appointed in the spring of 1940. In the fall of 1941...

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7. The Ear and Pen of Clerks for Life

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pp. 127-138

Barnette, THE SECOND FLAG SALUTE CASE, marked the end of my "judicial career," spent as a clerk for Judge Magruder and Justice Frankfurter. But I continued to serve as Mr. Justice Frankfurter's law clerk for life. He regarded law clerks, present and past and no matter where they were, as still his law clerks. We were his boys, his family. And he made no attempt to disguise his views in talking to me or to the other former law clerks. ...

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8. Redeployment

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pp. 139-146

IT WASN'T AT ALL CLEAR when I went to work for Frankfurter that I was going to work for him for two terms. In I941-1942 everybody I knew, almost, was in uniform, and World War II was a very popular war. We were all-out determined to stop Hitler. I came up for medical examination for the draft at the end of my first year. But I knew I was going to be classified 4F, physically unfit for service, and I was. I had an ulcer in law school and that was enough to make me a 4F. ...

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9. Assignment in Germany

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pp. 147-156

ROOSEVELT DIED IN APRIL 1945 and Francis Biddle was replaced as attorney general by Tom C. Clark. That was a dark day in the Department of Justice. Paul Freund said to me that day when Clark was appointed that he now knew how it must have felt in the Department of Justice when Harry Daugherty became attorney general. Solicitor General Fahy did not get along with Tom Clark, who had been head of Antitrust Division. So when the war ended and General...

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10. At the Office of the Solicitor General

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pp. 157-183

WORK AT THE SOLICITOR GENERAL'S OFFICE began for me in March 1944. I left seventeen years later, in April 1961. My only year off was the one I spent with Mr. Fahy in Germany (1945-46). The SG's office was a small office, consisting of only the solicitor general and eight lawyers, and the work couldn't possibly have been better from my point of view. We were the government's lawyers in the Supreme Court of the...

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11. The Gist of the Antitrust Thrust

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pp. 184-189

OF THE MANY ANTITRUST CASES which I argued on behalf of the government, which came into the Solicitor General's Office, I'll start by telling you about just one, the Shubert case. There was a whole series of cases dealing with exemptions from the antitrust laws. The Supreme Court had held in 1923 in an opinion by Holmes in the "Federal Base...

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12. The Solicitor General's Office and Civil Rights

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pp. 190-244

WELL, MAYBE THE TIME HAS COME to talk about civil rights. It started with the Screws case, which was a traditional kind of case involving the question of whether it was a violation of federal civil rights statute for a sheriff and a couple of deputies to beat up a guy who had been arrested. It did not involve any great constitutional Fourteenth...

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13. Unconventional Conduct

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pp. 245-254

THERE WERE, OF COURSE, CIVIL RIGHTS CASES other than housing and school cases. Nairn v. Nairn is one of these, which I first heard about after the Supreme Court had decided Brown v. Board of Education in 1954. In Nairn, the highest court of Virginia had upheld the constitutionality of the state's statute prohibiting miscegenation, and it had...

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14. The 1960 Election

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pp. 255-281

I DID ABSOLUTELY NOTHING FOR JOHN F. KENNEDY except vote for him. Another thing I did, however, was to give some advice to his opponents at one of the pivotal moments in the 1960 election campaign—a moment that tested the willingness of the Eisenhower-Nixon administration to support Martin Luther King. Fortunately for me, but not for Nixon, the Nixon campaign didn't take my advice. ...

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15. "Troublemaker" at the Federal Trade Commission

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pp. 282-326

WHILE I WAS IN THE SOLICITOR GENERAL'S OFFICE I had reviewed FTC cases and I had had occasional contact with lawyers at the FTC, particularly the assistant general counsel who handled the appellate matters. But for the most part these contacts were rather brief. The Antitrust Division of the Justice Department also reviewed FTC briefs, ...

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16. Reappointment

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pp. 327-340

COMMISSIONERS ARE APPOINTED for seven-year terms. I was appointed to fill out an unexpired portion of a seven-year term that expired September 25, 1963; in other words, for about two and a half years. I think one of the things that affected my reception at the FTC was the fact that I was there for what seemed to be a relatively short period of time. ...

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17. The Cigarette Rule

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pp. 341-352

WHEN KENNEDY GOT SHOT, Johnson became president, and just about that time the commission was becoming very much concerned about cigarettes. The FTC had gotten involved earlier in cigarette advertis ing in a very destructive, stupid way. Some of the manufacturers of cigarettes in the late 1950s had begun to advertise that they were low in...

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18. Very Public Acrimony

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pp. 353-383

ANDERSON LEFT THE COMMISSION WHEN his term expired, in 1965, though I may have the year wrong. He was a Republican, and this was a Republican vacancy. Esther Peterson was then in the White House. Johnson had appointed some women to serve as consumer advisers. Betty Furness had been a consumer adviser, and at the time I'm speaking of, Esther Peterson was in the White House and she was looking for...

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19. Teaching and Practice

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pp. 384-389

I LEFT THE COMMISSION AT THE END OF 1970, and when I left, I found myself for the first time of my life adrift and uncertain as to what I should do with myself. Before then I'd always been taken care of by a benevolent providence, assisted by some good friends who felt I could not take care of myself and needed a little help. Well, in a way I was...

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Afterword: The Project and the Controversy

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pp. 391-410

PHIL'S CAREER AS A GOVERNMENT SERVANT ended in 1970, when he left the Federal Trade Commission. But his career as an advocate and reformer continued, and he became a teacher, as well. As he mentioned in his oral history, he joined the faculty of the Georgetown University Law Center and taught on a part-time basis.1 He also accepted the offer of his friend Robert Wald to join the young Washington law firm of Wald, Harkrader and Ross.2 When Phil signed up in 1970, ...

Table of Cases

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pp. 411-412


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pp. 413-424

E-ISBN-13: 9780472024377
Print-ISBN-13: 9780472114252

Page Count: 440
Publication Year: 2004

Research Areas


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Subject Headings

  • Government attorneys -- United States -- Biography.
  • Elman, Philip.
  • Civil rights -- United States -- History.
  • Lawyers -- United States -- Biography.
  • United States. Solicitor General -- Officials and employees -- Biography.
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