A Judge's Breach of Confidence

By Richard Lacayo

By the time Felix Frankfurter came to the U.S. Supreme Court in 1939, he had fought monopolies, defended striking workers, taught law at Harvard University, and written frequently for the New Republic. So maybe it was sheer momentum that kept him dabbling in public affairs from the bench. He remained one of Roosevelt's closest policy advisers, even though doing so offended the monastic ideal that judges must be "less worldly than others in order to be more judicial" -- as Frankfurter once put it.

Since Frankfurter's death in 1965, his reputation as a combative and principled jurist has endured. And so have reservations about his penchant for exerting policy influence in questionable ways. The latest fuss concerns his actions in the historic 1954 school-integration case Brown v. Board of Education. Philip Elman, 69, a former Frankfurter law clerk who served as a Justice Department civil rights lawyer, says that while Brown was in progress Frankfurter regularly shared with him the confidential views of fellow Justices, which Elman later used when preparing Government briefs in the case.

Ordinarily, the positions aired in the Supreme Court's private conferences are its most closely guarded secret. And canons of legal ethics have long forbidden judges to discuss unofficially with lawyers the merits of any case pending before them. But Brown was a case of "extraordinary" importance, says Elman. "The ordinary rules didn't apply." Not so, retorts Yale Law Professor Geoffrey Hazard, who helped draft the American Bar Association's 1983 rules of conduct for lawyers. "Brown put the court's institutional legitimacy on the line. That is why one ought to have been absolutely punctilious."

Elman started telling his story in 1983 for a Columbia University oral history project, and his disclosures were published in February's Harvard Law Review, from where they jumped last week to the front page of the New York Times. In his interview, Elman recalls that for years Frankfurter telephoned him almost every Sunday night at home. In some of their talks in 1952, the judge discussed the fact that several Justices feared that if they ordered immediate school integration, the result would be virtual warfare across the South. Frankfurter wanted "more than anything else" for the court to decide the case unanimously, Elman says, in order to give the decision the necessary authority.

The Government was not then involved in the case, but late in 1952 Elman helped draft an amicus curiae brief for the Truman Administration. He was prompted by Frankfurter's disclosures to go against his own sense of the proper legal argument and tailor the brief to offer the wavering judges a key compromise: that the court could permit states to take a gradual approach to integration. That tactic was later adopted in a unanimous court ruling that called for integration "with all deliberate speed."

In addition to criticism of Frankfurter, the account produced dissent from black civil rights lawyers, who say that it seriously underplayed their role in the case. Elman says he is "shocked" by the current commotion. Frankfurter "didn't regard me as a lawyer for any party," he told his Columbia interviewer. "I was still his law clerk." Indeed, the childless Frankfurter was renowned for treating former students and law clerks as an extended family, finding them influential jobs in Washington and turning to them as a sounding board for his thoughts.

Even discounting for hindsight, however, Frankfurter's insensitivity in the matter must finally be counted a lapse. Had the public known three decades ago that the Government was able to make a winning argument because it had been tipped to the views of each Justice, the moral authority that Frankfurter so husbanded for the court would have been seriously tarnished.

With reporting by Alain L. Sanders/New York