The Judge Who Shaped Our Law

Hand Family Collection
Learned Hand

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…

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