The Judge Who Shaped Our Law

The Manhattan courthouse of the United States Court of Appeals for the Second Circuit was reopened this year after a long renovation. The chief judge returned to the main courtroom a bust of Learned Hand, the most venerated member in the court’s history. The imposing head and resolute face, bristling eyebrows and wide-set eyes make him look like a great judge, and he was.¹ Hand served on the federal trial court for New York State’s Southern District for fifteen years beginning in 1909 and then on the federal appeals court for New York, Connecticut, and Vermont for thirty-seven years, for an astonishing, near-record total of fifty-two years. Today, although he died more than half a century ago in 1961, he remains a holy figure in America’s legal culture.

Yet few of even the most erudite judges or legal scholars today could say much about why he stood out as a judge. His words about “the spirit of liberty” are likely his best known. They are from a speech he gave in May 1944, when he was asked to address new citizens the day they pledged their allegiance to the United States. “The spirit of liberty,” he said,

is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded….

In Learned Hand: The Man and the Judge, Gerald Gunther’s superb yet surprisingly incomplete 1994 biography, the author italicized the words “the spirit which is not too sure that it is right.”² They connect the judge’s spirit to the man’s lifelong disposition: he was relentlessly self-doubting—in his own view, he was “an outsider” and a “timid, puzzled” man. That didn’t keep him from being theatrically rude—by swiveling his chair and showing his back—to lawyers who appeared before him when he considered their arguments flimsy, or from appearing robust, fearless, and ebullient, as people who knew him well described him.

Instead, as Constance Jordan, a professor of English and Comparative Literature Emerita at Claremont Graduate University in California, explains in a well-informed introduction to Reason and Imagination: The Selected Correspondence of Learned Hand—she is Hand’s granddaughter and edited this sympathetic, dense, and finely annotated array of letters by and to him—Judge Hand’s self-doubt matched his philosophical skepticism. He rejected the idea that life is governed by some absolute truth, favoring what he called the “craftsman spirit.”

To Hand, law’s role is to help shape common purpose and reflect the will of the people as part of the compact between them and their government. He was a small “d” democrat. Case by case, he saw his job as weighing competing views of the law and its application to the facts and working his way toward the best outcome in the circumstances. His psyche, outlook, and practice aligned to make him a model of a restrained judge.

His primary tools, he said, included imagination as much as reason: the “intent” of a law, made by a legislature or a court, was often hard to figure out when it had to be applied in new circumstances. The judge would imagine asking the lawmaker the legal question on his mind and then do what the lawmaker would have done. The combination of self-doubt and skepticism made Hand mercurial and sometimes sarcastic. They also made him a workhorse, to minimize his mistakes—in Jordan’s words, “stating, revising, restating, and never entirely confident that the resulting work would not need to be done again.”

Reason and Imagination is meant as a companion to Learned Hand: The Man and the Judge. (Learned was his mother’s maiden name and he chose to be called that, though his full name was Billings Learned Hand.) The biography is a narrative about a puritan from Albany, New York, who graduated summa cum laude in philosophy from Harvard College; fell into law as what he called the “almost hereditary” family profession; did well at Harvard Law School; married and had three daughters; was not that successful in the practice of law; became an exceptional judge; invented the legal clerkship, but used his clerks as critics of his drafts rather than drafters of his opinions; and from his early forties until his early seventies was considered an eminent candidate for the Supreme Court, yet, after serious consideration, was twice passed over for political reasons by Herbert Hoover in 1930 and Franklin D. Roosevelt in 1942.

But Jordan’s book is also intended as an antidote to Gunther’s. Jordan does not say so directly, but to mend Hand’s reputation, she seems to aim in particular at correcting what she considers a major misimpression left by Gunther’s book: that an article of faith of Hand’s—judicial restraint—took him outside the legal mainstream when it came to Brown v. Board of Education, the most important Supreme Court ruling of the twentieth century, and tarnished what he stood for as a judge.

Hand was a career-long champion of strict judicial restraint. His fundamental belief was that, in our American democracy, judges and especially justices of the Supreme Court should defer to Congress and uphold statutes unless they served no practical purpose, because he doubted “the wisdom of setting up courts as the final arbiters of social conflicts.” James Bradley Thayer, a Harvard Law School professor and favorite teacher of Hand’s,³ articulated this guiding stricture. The standard-setting liberal Justices Oliver Wendell Holmes Jr. (Hand’s hero) and Louis Brandeis relied on this view in the first decades of the twentieth century when they dissented from Supreme Court rulings that struck down social legislation because, the Court’s conservative majority thought, the statutes were anti-business.

In 1958, when Hand was eighty-six and called by The New York Times “the most revered of living American judges,” he summed up his case for strict restraint in The Bill of Rights, the prestigious Holmes Lectures at Harvard Law School, delivered over three nights. By then, Earl Warren had been chief justice of the Supreme Court for five years. As Gerald Gunther explained, “The achievement of social justice through invocation of the Bill of Rights and the Fourteenth Amendment was well on its way to becoming the justices’ central preoccupation.”

Hand’s lectures made the case for judicial enforcement of them only “on extreme occasions.” He contended that there was no basis in the text of the Constitution or in its history for the Supreme Court to hold acts of government unconstitutional, especially statutes passed by Congress and state legislatures.

It was not, he wrote, “a lawless act to import into the Constitution such a grant of power,” for “without some arbiter whose decision should be final the whole system would have collapsed.” But justices and other judges, he advised, should use this power only when that was essential—when a governmental act violated the clear “historical meaning” of the amendments in the Bill of Rights—or they would function as a super-legislature. “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians,” he said famously, “even if I knew how to choose them, which I assuredly do not.”

The lectures were an attack on judicial activism but also the Warren Court. In 1954, Warren had led the Court to the unanimous Brown v. Board of Education ruling. Every justice then on the Court, as the legal historian Michael Klarman noted, “had criticized untethered judicial activism as undemocratic.”⁴ But the justices recognized that America was a transformed nation in its views about race and that history compelled the Court to find segregation of public schools unconstitutional.⁵ In a short opinion, Warren stated that principle.

Among liberal and centrist legal thinkers, the question was how broad a principle of equality the Court had actually stated. In his lectures, however, Hand staked out a very conservative position. The Brown ruling was unacceptable because it was second-guessing of legislative choices by the states, even though that put Hand on the wrong side of history.

Gunther attributed Hand’s extreme position to Felix Frankfurter, who, though younger by a decade, had authority as a longtime Harvard Law School professor. They had a memorable correspondence for fifty years, with Frankfurter signing off “Ever yours” and Hand, “Thine.” Franklin D. Roosevelt had appointed Frankfurter to succeed Benjamin Cardozo on the Supreme Court in 1939 and sustain a liberal vote but, by the time of the Brown ruling, Frankfurter’s fierce adherence to judicial restraint had repositioned him as a conservative.

While Frankfurter joined the unanimous decision in Brown, he was deeply conflicted about it. In the internal deliberations about the case, he emphasized that he could not say that the Fourteenth Amendment “meant to abolish segregation.” But as Klarman put it, he abhorred segregation more than he scorned basing a legal decision on politics.

As if he could turn an activist ruling into a restrained one, however, he persuaded Warren that the Court should take a gradualist approach, with implementation of the order to desegregate public schools the responsibility of local authorities—with no deadline. One district after another refused to obey the Court, which hardened Frankfurter’s conservatism and invigorated Warren’s liberalism. Brown introduced a new era of expanded authority and activism for the Court. Frankfurter blamed Warren and his “self-willed self-righteous power-lust.” That was the backdrop for Frankfurter’s goading of Hand, who took the ultra-restraint, anti-Brown position of his lectures.

Jordan devotes 116 pages, a quarter of the book, to Hand’s views about the Bill of Rights, to show that rather than being intemperate and backward-looking, he was truly moved by the spirit of liberty, and that it shaped his views. In 1955, for example, he opposed anti-sodomy laws, saying that sodomy was “a matter very largely of taste and is not a matter that people should be put in prison about.” In 1957, J. Robert Oppenheimer, the codeveloper of the atomic bomb, was appointed to a lectureship at Harvard and was opposed by a group of alumni because accusations about his Communist connections had cost him a government security clearance. Hand refused to join the attack. He wrote in a letter that Oppenheimer was “qualified morally, as he certainly is professionally.”⁶

Still, it is the correspondence between Hand and Frankfurter that matters most in this section. Jordan seems not to disagree with Gunther about Frankfurter’s influence on Hand in this exchange. To the contrary, she seems to want to show how unfortunate that influence was—especially because Hand’s initial response to Brown was to affirm it, while he resisted Frankfurter’s view.

In June 1954, after Frankfurter sent Hand a copy of the Brown decision, Hand wrote the justice that he would have reached the same result: “It is difficult for me to avoid the conclusion that the Fourteenth Amendment meant to cover such interests as a separation by race in so primary an activity as education.”⁷ In other words, Hand’s initial view about Brown was that state laws calling for segregated public schools violated the historic meaning of the Fourteenth Amendment, making them unconstitutional even under his conception of judicial restraint.

But in September 1957, months before Hand’s Holmes Lectures, Frankfurter and Hand exchanged a series of letters that seemed to help change Hand’s mind about Brown. The justice asked the judge:

I hope you can spare time and energy, and that your inclination will move you to do so, to tell me with particularity what you would do in my place were the constitutionality of the conventional [anti-]miscegenation statute before you. I ought to put only one qualification in your disposition of the problem: you are to accept loyally the Court’s decision on school segregation.

(In Frankfurter’s place, Hand would have had to accept Brown as a fresh precedent.)

One of the phony claims made at the time to undermine the authority of Brown in the face of southern disobedience to the ruling was that its real purpose was the “mongrelisation” of the races, by putting blacks and whites side by side in the classroom and then legalizing marriage between men and women of different races. The Supreme Court ducked this controversy, rejecting several cases that challenged anti-mixed-race marriage statutes, and waited until 1967 to strike them down.⁸

Hand expressed uncertainty about the history of the Fourteenth Amendment and the breadth of the reach of its clause guaranteeing equal protection of the laws—uncertainty about how much that history justified his “thinking that the Amendment was passed in a spirit of extreme, indeed extravagant, egalitarianism in favor of Negroes.” But he went on, “If what I have said is true, I cannot see how we can possibly say that it does not deny ‘equal protection’ to Negroes to forbid their marriage with Whites.”⁹

Frankfurter responded that Hand’s “reasoning and the conclusion to which it led you make me extremely uncomfortable” and rebuffed Hand’s understanding of the Fourteenth Amendment as if it were unsupported by history or interpretation and a threat to Frankfurter’s independence as a justice. How could Hand say that “color is absolutely barred as a basis of ‘classification’ allowed by ‘equal protection’? Is the answer that IT IS!! the iron intellectual prison within which the Fourteenth confines me?”

Frankfurter did not acknowledge that Hand’s view about the breadth of the Fourteenth Amendment’s reach was a respectable one. He did not acknowledge that rigid racial discrimination, exemplified by slavery, was the paradigm for the kind of denial that the equal protection clause of the Fourteenth Amendment prohibits.

Hand wrote back to Frankfurter, “I suppose I must say something about all this in my goddam lectures.” “All this” turned out to include saying that Brown was unacceptable. Before this exchange with Frankfurter, Hand’s view had been that the ruling was correct and that he supported it. In The Bill of Rights, by contrast, as Gunther summarized, Hand said that “Brown constituted impermissible second-guessing of legislative choices.” In Hand’s words, the Court assumed “the role of a third legislative chamber.”

If he had made that argument in the 1930s, when laissez-faire conservatism held sway on the Supreme Court, it might have come across as a principled if polemical challenge. Without the renunciation of Brown, the argument might have come across as a case for consistency—for the Warren Court to resist the impulse to achieve social justice through judicial activism of the kind the 1930s Court used to thwart economic justice. In the post-Brown era, however, without the deliberation about race evident in his letters to Frankfurter, the renunciation of Brown underscored that Hand’s argument was a tired defense of an outmoded way of thinking about the Court and the Constitution, the well-worn version of judicial restraint. Hand died in 1961, Frankfurter in 1965. Charles Wyzanski, a former law clerk of Hand’s who was himself a revered federal trial judge in Boston, said in 1964 that Hand’s thesis had “not yet been supported by a single eminent judge or professor.”

Judge Richard Posner of the US Court of Appeals of the Seventh Circuit offered a strikingly different and persuasive view in 1994 on this controversy about how to interpret the Constitution. While praising Gunther’s book in the Yale Law Journal as a work of “scrupulous scholarship” and “a most distinguished” judicial biography, he faulted the author for seeing Hand through the prism of Gunther’s own interests and for not assessing Hand’s remarkable career on its own terms. As a leading scholar of constitutional law—he was a professor at Stanford Law School—Gunther was especially interested in the Supreme Court and its constitutional decisions. In Posner’s view, that led him to exaggerate the importance of Hand’s thinking about constitutional law (Posner dismissed The Bill of Rights as “slight”—“not a work of original political or legal theory”)¹⁰ and to minimize what made Hand a great judge.

A recurring theme of Gunther’s book is Hand’s farsightedness about how broadly the Supreme Court should interpret the protection of free speech when applying it to criticism of the government. But as Posner pointed out, Hand wrote only two major opinions about free speech—and he later cast doubt on both. In 1917, as a trial judge, Hand ruled that speech was illegal under the Espionage Act only if it was a “direct incitement” to violate the law. This view was far more protective of speech than the Supreme Court allowed and was overturned by the Second Circuit. Hand concluded that his approach was a failure because it attracted “little professional support.”

In 1950, as a member of the appeals court, in the Dennis case Hand affirmed convictions of American Communist Party leaders for conspiracy to advocate overthrowing the government, and the Supreme Court upheld that ruling. Gunther defended Hand as “a judge of a lower court who took seriously his obligation to follow Supreme Court precedents.” Consistent with that view, he quoted Hand as saying in a letter that he would “never have prosecuted those birds,” although, from Hand’s viewpoint, the controlling precedents did not allow him as a judge to overturn the convictions and dismiss the case. But as Posner correctly judged, “Hand’s opinion in Dennis was a period piece and it was not the best period for freedom of thought and expression,” and, as he points out, the Court’s decision in Brandenburg v. Ohio in 1969 “certainly repudiated Dennis.”

Of Hand’s four thousand or so judicial opinions, a modest fraction dealt with constitutional law. The lion’s share dealt with common, or judge-made, law or law passed by legislatures and adopted by administrative agencies. In a letter to Hand, Judge Wyzanski put his mentor’s preoccupation with judicial restraint in a positive light: “Your practice of the judicial office will always make your theory of it appealing and persuasive.”

That practice exemplified the pursuit of justice within the bounds of the law. Hand was a lot more comfortable working within that firm constraint than in dealing with the very broad terms of the Constitution. He was intrepid about deciding what was properly before his court and scrupulous about refusing to make decisions about matters that were not—a version of judicial restraint far more realistic and less severe than what he vainly preached about restraint in applying the Constitution. It was this pragmatic, disciplined, and fair-minded approach and Hand’s trenchant, dignified, and urbane application of it that made him so admired by lawyers across the legal spectrum.

On the Second Circuit, Hand led his colleagues long before seniority made him their chief judge when he was sixty-seven. They relied on his judgments more than any other judge’s, from when he joined the court in 1924 until he took senior status in 1951 and reduced his workload. Among widely respected colleagues—like Charles Clark, Jerome Frank, Thomas Swan, and Augustus Hand, his cousin—in each five-year block in that period, Richard Posner found, Hand’s opinions were cited more than those of his colleagues. Compared to the other judges in each block, with one exception, Hand continued to be cited more than those colleagues for a generation after his death. That was so even though, as Posner explained, judicial decisions “depreciate as law changes, or as the principles announced in a decision become repeated in later decisions that are then cited instead.”

Until only a few years ago, the Justice Department’s explanation about the meaning of “monopoly” in antitrust law said,

Discussions of the requisite market share for monopoly power commonly begin with Judge Hand’s statement in United States v. Aluminum Co. of America that a market share of ninety percent “is enough to constitute a monopoly; it is doubtful whether sixty or sixty-four percent would be enough; and certainly thirty-three per cent is not.”

That was a landmark 1945 opinion expressing blunt suspicion about a company being able to amass and maintain dominant market power legitimately. Hand wrote that Congress “did not condone ‘good trusts’ and condemn ‘bad’ ones; it forbad all.” It was “no excuse for ‘monopolizing’ a market that the monopoly has not been used to extract from the consumer more than a ‘fair’ profit.”

The case went to the Second Circuit as the court of last resort instead of the Supreme Court by a special act of Congress, as Hand explained in a letter to a former law clerk:

The nine in Washington could not find six of their number who were not disqualified. That bench is lousy with ex-Attorneys General who had had a hand in the case, and it takes six to make a quorum.

Hand’s respect for antitrust enforcement reflected his support of economic regulation, period. As the Harvard Law Review noted then, that view “was not conspicuous on the bench and at the bar.”

In 1946, in patent law, Hand wrote a still widely followed opinion about why an inventor must get a patent on an industrial process before using it—and why he can’t use it secretly until a competitor copies it and then seek the patent.¹¹ If the American patent system allowed for that, no competitor could ever make a copy and the inventor would have protection of his innovation ad infinitum, which the system does not allow.

As a student of how the world and things in it work, Hand displayed an affinity with inventors. His continuing influence on patent law comes even from his dicta—statements in opinions that are not binding as precedent. Daniel Kevles, writing in these pages, recalled Hand’s view in a 1911 case about “a good ground for a patent.” In that case a chemist took adrenalin from a body, purified it, and put it into useful form. Hand wrote that the adrenalin could be patented because it “became for every practical purpose a new thing commercially and therapeutically.” In a recent major decision the justices took a somewhat different view holding that isolated human DNA cannot be patented because it is a product of nature and not a “new and useful…composition of matter.”¹²

In the literature of law and economics, which applies economic methods to analysis of law, Hand’s 1947 opinion in United States v. Carroll Towing Company is considered the first use of cost-benefit analysis for determining negligence and assigning liability in a torts lawsuit. Hand formulated a balancing test—B<PxL—which, translated, means that a party is in breach of the ordinary standard of care required if the burden (B) of avoiding harm is less than the probability (P) of something going wrong multiplied by the gravity of the resulting injury (L) if one occurs. The owner of a barge that broke free of its moorings, damaged another vessel, and sank should have paid enough to assure that a watchman was on board to deal with the emergency, because the cost was less than the expected losses.

Hand also wrote influential opinions about admiralty law, copyright law, criminal procedure, labor law, and other fields. He did so with bracing intelligence, practical creativity, and a mix of clarity, flair, and eloquence in his prose. He was a no-nonsense progressive, a prudent and humane solver of legal problems.

The letters Hand wrote reinforce the clear-cut sense that the most vital part of his life was the role he played as a shaper of law.¹³ He was its master because he was its servant. As a matter of conviction, he felt bound by limits that the law imposed on him. Yet when he felt liberated by those limits, he was an extraordinary model of what every federal judge should aspire to be.