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Mr. Liberty

Learned Hand: The Man and the Judge

by Gerald Gunther
Knopf, 818 pp., $35.00

After law school, I clerked for a year for Judge Learned Hand, of the United States Court of Appeals for the Second Circuit in Manhattan. One evening I had to drop off a memorandum at his house, and I asked a young woman whom I had just met, and who was having dinner with me, to come along because it would take only a second. But when Hand answered the door, he invited us in, made dry martinis, and talked to my new friend for almost two hours about art history, his old friend Bernard Berenson, the state of Harvard College, New York politics, the Supreme Court, and much more. When we left, walking down the brownstone steps, she asked, “If I see more of you, do I get to see more of him?”

Learned Hand was one of America’s greatest judges and now, through Gerald Gunther’s brilliant biography, we can all see much more of him. Hand wrote prodigiously—thousands of judicial decisions, and tens of thousands of memoranda to his fellow judges, letters to his legions of friends, academic essays, ceremonial speeches, and philosophical essays—and an enormous volume of material was at Gunther’s disposal soon after the judge’s death in 1961. Gunther has had a very distinguished academic career in the intervening decades—he is a professor of constitutional law at Stanford Law School, and the author of one of the leading casebooks in that subject. But Hand’s family and admirers had been growing impatient for his biography.

It was worth the wait. Learned Hand, at over eight hundred pages, is not only comprehensive but penetrating and illuminating as well. Its dust jacket, with the famous brooding photograph of Hand as the Platonic form of a judge, eyes glowing under the famous eyebrows, is a splendid bonus. Gunther’s book combines four different stories, each of which would have made a book on its own, and its achievement can be best appreciated by reviewing each of these stories in turn.

1.

The first is a history of America’s second century, from the perspective of a public and sensitive man who lived through almost all of it. Hand was born in 1872, a few years after the Civil War ended, and died in 1961, when John Kennedy was president. Describing his life means describing many of the central American institutions, personalities, and movements of those ninety years. At Harvard College in the 1890s Hand studied philosophy with Santayana, Royce, and James; he also made friends with Jews there, which helped to spoil his chances for membership in the exclusive Porcellian club, which he badly wanted. At Harvard Law School he watched the beginnings of Dean Christopher Columbus Langdell’s transformation of American legal education through the case system. His own law practice, first in Albany, where he had been born, and then in New York, was dull, but it was still possible then for a bright, personable young lawyer with a good academic record to know most people who counted at the bar, and he did. In 1909 his friends secured a federal judgeship for him, a job so little desired by promising lawyers, and so badly paid, that his father-in-law thought him a fool for seeking it.

Though Hand’s family were Democrats in the Jeffersonian tradition, and were appalled at the “progressive” doctrine that national government should regulate commerce and industry in the interests of justice, he himself was an early convert to the progressive movement. He persuaded Theodore Roosevelt, whom he had met, to read Herbert Croly’s progressive manifesto, The Promise of American Life, which became Roosevelt’s bible. He himself worked with Croly in founding the New Republic, for which he wrote unsigned articles. In 1912, he joined Roosevelt’s Progressive Party, helped draft its platform, and a year later ran unsuccessfully for a seat on the New York Court of Appeals on its ticket.

Thereafter he was more faithful to his own view that judges should not publicly take sides on controversial political issues. But he was outraged, both as a judge and as a progressive, by the decisions of the deeply conservative Supreme Court, which declared unconstitutional much of the social legislation that is now considered routine in a just society, including laws stipulating maximum working hours and imposing minimum wages for women. According to the Court of that time such legislation offended the due process clause of the Fourteenth Amendment by depriving citizens of a fundamental liberty of contract, and this Hand thought preposterous.

He deeply disliked Harding and Coolidge, and was disappointed in Hoover, whom he had admired as an administrator. While he believed FDR to be intellectually shallow, he admired him for his optimism and experimentalism. He had a clearer sense of the coming of World War II than others, particularly his then close friend Walter Lippmann, and became a national figure during the war when he gave a widely quoted and reprinted speech about liberty in a patriotic ceremony in Central Park. (“The spirit of liberty,” he said, “is the spirit which is not too sure that it is right.”) In the postwar period, he was appalled by the sadism and folly of McCarthyism, as well as by the liberal decisions of the Supreme Court under Chief Justice Warren, which he thought just as wrongheaded as the conservative decisions of earlier years.

Gunther discusses Hand’s place in and reaction to all these great events and periods of American political history, and describes the other political actors Hand knew and corresponded with, all with great verve. Learned Hand seems essential material for historians of any part of the judge’s long era.

The book’s second story provides a psychological portrait of an unusually complex, even paradoxical, person. Hand was funny, spontaneous, and gregarious; he loved practical jokes, classical puns, bawdy stories, and Gilbert and Sullivan arias, which he would suddenly begin to sing, breaking the studious silence of his chambers. His relations with his clerks were unusually close:in my time he and his clerk worked face to face across two pushed-together desks. Though he had himself invented the law-clerk system (paying his first clerks out of his own salary) he claimed uncertainty about how to use those assistants. “Most of my colleagues have their clerks look up the law,” he told me on my first day. “But I know where the law is better than you do,” he said, gesturing toward the books that lined the walls, “because I wrote most of it. Most of my colleagues ask their clerks to write the first draft of opinions. Maybe you write better than I do. But I’m a vain man, and I won’t think so. So what shall I do with you?You’d better just read what I write and tell me what’s wrong with it. And in our spare time, if we have any, we’ll just talk.”

But in spite of Hand’s charm and playfulness he was amazingly insecure:he thought himself weak and even cowardly—he once compared himself with Casper Milquetoast—and his low view of his own abilities was only sporadically lifted by his growing fame. Gunther suggests many roots and reinforcements for this insecurity. Hand’s remote father, a lawyer who was a hero to his family and to the legal community of Victorian Albany, died when Hand was only fourteen, and Hand felt he could not live up to his father’s standards. He never forgot being ignored by the “swells” and their clubs at Harvard—he would talk of this social failure, with droll pain, even in his late eighties. And the fact that he was never appointed to the Supreme Court pained him too, much more than he ever let on, except in an extraordinary letter to Felix Frankfurter in 1950 in which Hand admitted that he longed for a place on the Court “beyond all else”; but he despised this weakness, as he saw it, and worried that it was only the “importance, the power, the trappings” of the office he wanted.

His marriage was one few others would have tolerated: his wife Frances, whom he adored, had a very close friendship for decades with another man, Louis Dow, a Dartmouth professor of French. The Hands had bought a country house in Cornish, New Hampshire, near Dartmouth, and after Dow’s own wife entered a mental hospital in 1913, he spent much time there with Frances while Learned stayed in New York. In the 1930s, Frances made several trips to Europe with Dow and without her husband. Gunther tells the story with great tact, and says he has an open mind about whether the relationship between the two friends was ever a “physical” one. In any case, Hand was, Gunther thinks, desperately anxious for a more intimate relationship with his wife, and after Dow died in 1944, their letters do become tender and playful—his seeming almost childlike in their gratitude for her affection.

Learned Hand‘s third story is a professional, even technical, one.Every American law student learns that Hand was part of a quartet, with Holmes, Brandeis, and Cardozo, of the greatest American judges. Many scholars, in my view plausibly, put Hand at the top of even that exalted list. The other three were on the Supreme Court but, as Gunther makes plain, the reasons Hand was never chosen, during the years when he might have been, were accidents of politics; when Felix Frankfurter was asked to name the greatest jurist on the Supreme Court he replied that the greatest jurist was not on the Supreme Court. But few lawyers today (and very few non-lawyers)have any idea why Hand was such a great judge, and in the most impressive pages of the book—particularly in one long chapter entirely devoted to legal analysis—Gunther answers that question, not by abstractions but through an uncompromising and detailed discussion of some of the most arcane matters of federal law:constitutional law and the law of obscenity, as well as apparently much duller matters of admiralty, patent, copyright, and administrative law.

While some readers will be daunted at the prospect of sixty-five pages explaining how Hand practically reinvented each of these fields of law, they will find that Gunther’s exposition is remarkably clear and vivid. As he realized, there is no other way to explain what judging is like, and why Hand was so good at it, than to set out, in an uncondescending way, the problems he faced, the methods he used, and the solutions he offered. For it was above all in the details of his daily work that Hand was a genius. When he was asked to give a tribute to Holmes, whom he deeply admired, at the Harvard Law School in 1930, he said that Holmes was president of the “Society of Jobbists,” those who belong to a craft that does not seek glamour or attention but “gives good measure for its wages” and “demands right quality, better than the market will pass.” In 1958, in his Holmes Lectures at the Harvard Law School, he said that his teachers there had taught him that “it is as craftsmen that we get our satisfactions and our pay.”

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