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26 Judges J. 18 (1987)
Ex Parte Communication

handle is hein.journals/judgej26 and id is 67 raw text is: JAD Judicial Adn American B Chairman Ernest S. Hayeck Judge District Court Worcester, Massachusetts ninistration Division ar Association EX PARTE COMMUNICATION It is rare when items concerning the inner workings of the judiciary and the judicial process attain the status of front page lead items on the pages of such national newspapers as the New York Times and the Washington Post. However, as I pause to prepare another chairman's column, such is the case involv- ing the recent revelations concerning the commu- nications between Mr. Philip Elman and the late J ustice Felix Frankfurter relative to the United States Supreme Court's decision in the historic school segregation case of Brown v. Board of Education in 1954. The catalyst for this attention was an article which appears in the February 1987 issue of the Harvard Law Review under the title The Solicitor General's Office, Justice Frankfurter, and Civil Rights Liti- gation, 1946-1960. (See 100 Harv. L. Rev. 817.) In this article, actually an oral history interview, Mr. Elman described his role as a former law clerk to J ustice Frankfurter and his later conversations with the justice after Mr. Elman had become a member of the Solicitor General's staff, responsible for han- dling all civil rights cases in the Supreme Court in which the United States was involved as a party or amicus curiae. While working in that position in the Department of Justice, Mr Elman described holding ongoing ex parte conversations with Justice Frank- furter and discussed attempting to shape a strategy in Brown that would insure a unanimous decision, which was ultimately achieved in the case. Some fla- vor of the objective sought may be gleaned from the following excerpt from the Harvard article: The Justices (except for Black and Douglas) were deliberately pursuing a strategy of procrastina- tion. The Court's strategy, and this was the Frankfurter-Jackson strategy, was to delay, de- lay, delay - putting off the issue as long as pos- sible. Q. That strategy has bothered quite a few ob- servers since. Elman: Any other strategy would have been dis- astrous for everybody-the Court, the country, and most sadly of all, the blacks themselves. Frankfurter wanted the Court to deal with the issue openly, directly, wisely, courageously, and more than anything else, unanimously. He did not want the segregation issue to be decided by a fractured Court, as it then was; he did not want a decision to go out with nine or six or four opinions. He wanted the Court to stand before the country on this issue united and speaking in a single voice. He felt that whatever it did had to go out to the country with an ap- pearance of unity, so that the Court as an insti- tution would best be able to withstand the attacks that inevitably were going to be made on it. And, what was crucial at that time- 1952-Frankfurter could not count five sure, or even probable, votes for overruling Plessy. So Frankfurter, along with Jackson, wanted to postpone as long as he possibly could. (See 100 Harv. L. Rev. at 822.) In the article, Elman goes on to recount how he and Frankfurter held weekly Sunday evening tele- phone conversations to discuss, among other things, shifts in the mood of the Court and more signifi- cantly, to plan the strategy and approach which would most effectively garner the vote of each jus- tice in accord with these shifting moods and mo- mentums. Following the publication of the article there has been a veritable firestorm of criticism concerning the situation. The thrust of the criticism is that the kind of ex parte contact and communication dis- closed in the Harvard article departed seriously from prevailing standards ofjudicial ethics-then and now. For certainly it has long been the traditional model under our adversary system, that whatever a judge learns of a case should be learned in the court- room-where it might be subjected to searching cross-examination by opposing counsel. Justice Frankfurter was brilliant and ubiquitous, as seen from his ongoing relationship with President Franklin Roosevelt after Frankfurter took his seat on the Court and as seen from his even more unique ongoing relationship with Justice Brandeis while still a professor at Harvard Law School. (See, e.g. Freed- man, Roosevelt & Frankfurter, Their Correspond- ence, 1928-1945; Little Brown, 1967; Murphy, The Brandeis/Frankfurter Connection; Oxford Press. 1982.) Justice Frankfurter obviously did not feel cir- cumscribed by tradition and orthodox restraints. This was especially true where he deemed the cause at issue-the eradication of racial discrimination in the public schools-to be a moral cause of tran- scending significance. Elman, for his part, believed that despite changes in time, place and status. he, de facto, remained Frankfurter's law clerk for life. I do not address this situation here in order to rekindle the embers of a footnote to history al- most four decades behind us. However, one can cer- tainly say that, if true, the kinds of ex parte (Please turn to page 46) Thle Judges' Journal 18 ____J

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