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.
1 Louis Auchincloss gave a more complicated version of this idea in The Rector of Justin, a work of fiction whose main character is modeled on Hand. As Auchincloss told The Paris Review (Fall 1994), “Physically, I modeled him on Judge Learned Hand, whom I knew very well and strongly admired.” ↩
2 Knopf, 1994, p. 549. ↩
3 Hand called Thayer’s course on constitutional law “the fitting crown of the whole three years.” ↩
4 “ Brown and Lawrence (and Goodrich ),” Michigan Law Review (December 2005), p. 436. ↩
5 It was an intensely controversial decision, with 54 percent of Americans supporting it and 41 percent opposed. ↩
6 The group called itself the Harvard “Veritas” Committee, which led Hand to correct their misimpression about the purpose of a Harvard education: “We do not seek to teach truth, but how to think; that is the chief difference between ourselves and all totalitarians. Anything else would be a surrender of our most precious possession and make us unfit to exist.” ↩
7 In February 1956, he said the same thing. He “did not see how, had I been called on to vote, I could have failed to concur.” ↩
Louis Auchincloss gave a more complicated version of this idea in The Rector of Justin, a work of fiction whose main character is modeled on Hand. As Auchincloss told The Paris Review (Fall 1994), “Physically, I modeled him on Judge Learned Hand, whom I knew very well and strongly admired.” ↩
Knopf, 1994, p. 549. ↩
Hand called Thayer’s course on constitutional law “the fitting crown of the whole three years.” ↩
“ Brown and Lawrence (and Goodrich ),” Michigan Law Review (December 2005), p. 436. ↩
It was an intensely controversial decision, with 54 percent of Americans supporting it and 41 percent opposed. ↩
The group called itself the Harvard “Veritas” Committee, which led Hand to correct their misimpression about the purpose of a Harvard education: “We do not seek to teach truth, but how to think; that is the chief difference between ourselves and all totalitarians. Anything else would be a surrender of our most precious possession and make us unfit to exist.” ↩
In February 1956, he said the same thing. He “did not see how, had I been called on to vote, I could have failed to concur.” ↩