Philip Elman (born 14 March 1918, Paterson, New Jersey; died 30 November 1999, Sibley Memorial Hospital, Washington, D.C.) was an American lawyer at the United States Department of Justice and former member of the Federal Trade Commission. He is best known for writing the government's brief in Brown v. Board of Education.[1]
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Elman was born in Paterson, New Jersey to Polish-Jewish immigrant parents who worked in the silk industry. During the Great Depression, he moved with his family to New York City, where he attended DeWitt Clinton High School and the City College of New York. He went on to Harvard Law School, where he was an editor of the Harvard Law Review in 1938 and 1939.[2]
Elman began his legal career as a law clerk to Judge Calvert Magruder of the U.S. Court of Appeals for the First Circuit, 1939-1940. After a brief stint at the Federal Communications Commission (1940–1941), he served as a law clerk to U.S. Supreme Court Justice Felix Frankfurter from 1941 to 1943. Among the opinions Elman was involved in drafting during his clerkship was Frankfurter's dissent in the second Flag Salute case, West Virginia State Board of Education v. Barnette.[3] Elman and Frankfurter remained fast friends; Elman would later recount that Frankfurter still regarded him as his clerk for years after Elman had joined the Justice Department.[2]
After his clerkship with Frankfurter, Elman joined the United States Department of Justice, where he worked as an assistant to the Solicitor General of the United States from 1944 to 1961. He took part in drafting briefs and arguments for a number of civil rights cases, including Shelley v. Kraemer.
In his oral history about his time at the Solicitor General's office, Elman recounted his involvement in the case of Brown v. Board of Education. He explained how, in writing the government's brief, the concept "with all deliberate speed" originated:
[i]'ts because we were the first to suggest, and all the parties and amicus on both sides rejected it after the government proposed it, that if the Court should hold that racial segregation in public schools is unconstitutional, it should give the district courts a reasonable period of time to work out the details and timing of the implementation of the decision. In other words, "with all deliberate speed".
Elman reasoned that he wanted a "middle ground" between reaffirming the "separate but equal" doctrine of Plessy v. Ferguson and requiring immediate integration of all public schools, even though that meant separating the constitutional principle from the remedy. He believed that the Supreme Court would not have been able to decide the case unanimously and have the decision accepted by the American public otherwise.[2]
He also explained the origin of the phrase itself. He borrowed the concept from antitrust cases and boundary dispute cases of the United States Supreme Court, particularly the opinions of Oliver Wendell Holmes, Jr., but had difficulty finding out where the actual phrase had originated. Researchers from the National Association for the Advancement of Colored People later found the origins of the phrase in Francis Thompson's poem The Hound of Heaven.[2]
Elman had desired to become an Assistant Attorney General of the United States, but after an interview with then-United States Attorney General Robert F. Kennedy did not go as planned, Elman was nominated to a seat on the Federal Trade Commission instead. Elman was confirmed by the United States Senate, and served on the FTC from 1961 to 1970.[1]
While at the FTC, his main agenda was eliminating false advertising. His actions led to the FTC mandating warning labels on cigarette packs in the United States.[3] Among Elman's assistants during his time at the FTC was a young Richard Posner, who went on to become a professor at University of Chicago Law School and a judge on the United States Court of Appeals for the Seventh Circuit.[4]
Elman taught at Georgetown University Law Center from 1970 to 1976.[5]
Elman admitted in his oral history that he and Justice Frankfurter conferred privately about the intended remedy in the case, which technically constituted a breach of judicial ethics. He was publicly criticized for this in 1987 by Time Magazine and the New York Times. Elman defended both himself and Justice Frankfurter by stating that these discussions took place before the United States became a party to the case, and even then, the United States was not an adversary party but rather an amicus curiae.[6]