With All Deliberate Speed: The Life of Philip Elman

12. The Solicitor General's Office and Civil Rights

CHAPTER 12 The Solicitor General's Office and Civil Rights 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 Amendment issues, the kind that came up in later cases. During this period, from March of 1944 to June of 1945, when there was more work in the office than there were lawyers to handle it, my recollection is that I took care of the few civil rights cases that came along. After I came back in the fall of 1946, civil rights matters became more numerous . I came back from Europe to the Solicitor General's Office in the fall of 1946 and started arguing cases in the Court. In December 1946 President Truman appointed the Committee on Civil Rights, headed by Charles E. Wilson, to study and make recommendations for strengthening civil rights protections. The committee put out an excellent report in October of the following year. The report, called To Secure These Rights, was taken very seriously in the Solicitor General's Office. It took a strong position urging an end to racial discrimination in all its forms, and we were aware at that time of cases pending in the Supreme Court in which private parties were challenging the constitutionality of judicial enforcement of racially restrictive covenants on real property . About that time I met a lawyer named Phineas Indritz, one of the unsung heroes of the civil rights movement. Indritz was employed in the Department of the Interior, I believe in the Bureau of Mines. He The Solicitor General's Office and Civil Rights knew Oscar Chapman, the Secretary of the Interior, and was urging him to move against discrimination against Indians. In his spare time he was doing research for the lawyers in the Supreme Court covenants cases. The two of us cooked up the idea that Chapman should write to the attorney general requesting the Department of Justice to file an amicus brief in these cases. Indritz drafted the letter, Chapman signed it, and when it came over to the Department ofJustice, it wound up on my desk, because I was the civil rights man in the Solicitor General's Office. This was long before a civil rights division was created in the Department of Justice. There was a civil rights section in the Criminal Division , but it dealt only with a narrow class ofcases involving mainly voting frauds. I had friends working with the NAACP, the American Civil Liberties Union, the American Jewish Congress, the American Jewish Committee, and other organizations. Indritz and I got them to write letters to the president and attorney general urging the government to intervene in the Supreme Court. All ofthese letters eventually came to me. I don't remember how many of them there were, but it was a large, impressive number. I also succeeded in getting the State Department to send a letter to the attorney general expressing concern over racial discrimination in the United States, how it impaired our foreign policy, and so on. These letters all came pouring in, and as each came in I would show it to the solicitor general, Philip Perlman. I then wrote a formal memorandum recommending that the United States file an amicus brief. Truman's Gallup poll ratings at that time were very low; it looked as though whoever was going to run against him in 1948, probably Dewey, would beat him badly. Tom Clark was attorney general, and both he and Perlman were political animals, very much aware of the Negro vote. On the Interior front, Oscar Chapman was also talking to people on the White House staff. I don't know exactly what happened. Probably Tom Clark made the decision after checking with Truman. In any event I was told by Perlman , on extremely short notice, to start drafting an amicus brief in Shelley v. Kraemer. Because there was no civil rights division, this was With All Deliberate Speed one of the few instances in which a briefhad to be written in the Solicitor General's Office from scratch. I assembled a team consisting of myself, Oscar Davis in the Appellate...