Learned Hand: The Man And The Judge – Gerald Gunther, 1994 ★★★★

Courting Doubt

How does a man who essentially believed in nothing help hone a system of jurisprudence into the debatable envy of the Western World? Very well, as Gerald Gunther explains it here.

Being uncertain about the basic rightness and wrongness of everything in a world he believed the product of mere chance was the strength of Learned Hand’s outlook, as Gunther explains it, and why the once-legendary jurist deserves consideration well after the times he helped to form have run down history’s rear-view mirror.

“Skepticism and relentless probing came naturally to Hand,” Gunther writes in his preface. “Reflectiveness, intolerance of absolutes, and relentless searching for answers despite an abiding conviction that there were no permanent ones were well-ingrained traits by the time he became a judge.”

Learned Hand had both the right name and the right face for his line of work. A British journalist is recalled here waggishly commenting on his first name, “just as if a fellow is a colonel and he is called ‘Colonel Courageous Stanton.’” As it turned out, he was born in January, 1872 as Billings Learned Hand, dropping his first name as an undergraduate at Harvard because he thought it “sissy.” His face was just as formidable: stern, imposing, with a hint of wildness around his bushy eyebrows and a touch of sadness around the eyes.

The sadness is central to understanding Hand’s character as Gunther presents it. Early in life, he was instructed in his mother’s Calvinist faith; he found the experience gloomy and rejected the idea of God by the time he was at Harvard, preferring the philosophies of faculty members William James and George Santayana. Still, the Bible-rearing had some impact; even in his later years, in judge’s chambers, he would be often heard launching into a Protestant hymn.

Gunther’s book offers up engaging personal details like that from time to time; Hand was a fellow of wit and energy who made many important friends. Yet the emphasis is more on his legal persona than his personality. Though Gunther gives Hand’s wife Frances a chapter of her own, she comes across as a distant figure, who spent much of her marriage traipsing off on extended tours with another man. Learned Hand is a book that prefers lengthy discursions about the subject’s handling of maritime- and copyright-law cases, which engages Gunther more than I suspect it will most readers.

Gunther spends a lot of time with Hand the Harvard student, itemizing the varied approaches of his many philosophy and law teachers; here and elsewhere it’s Hand as the man of ideas to whom Gunther keeps returning. Under the tutelage of one of his Harvard law teachers, James Bradley Thayer, Hand lighted upon what would become a core principle of his judicial career. As Hand explained it, Thayer warned “pretty plainly what would result if the courts [made] themselves into what is really a legislative body with a veto. He foresaw that and said that the only way for them to behave was to hold back and have a certain moderation.”

This opposition to judicial activism made him a fierce critic of such conservative, pro-business Supreme Court rulings as the 1905 Lochner v. New York decision, which blocked a state effort to limit the amount of hours an employee could be made to work. Hand, then a Wall Street lawyer, was moved to take on the Court’s argument that the law violated a due-process “liberty of contract” in a 15-page essay published in the Harvard Law Review.

“Lochner indicated that the justices would review very carefully, and would not hesitate to invalidate, many economic regulations, including the new worker-protective provisions that legislatures were beginning to adopt,” Gunther writes. “Hand’s attack on Lochner presciently identified the harms that would flow from this judicial attitude, both in the obstruction of the popular will and in the abuse of judicial power.”

Hand remained a strict constructionist throughout his life, when he was made a federal district judge and later, joined the U. S. Second Circuit Court of Appeals in New York, where he would make his mark and his name. There were bold moments throughout his career; Gunther identifies the boldest of them as being his ruling in favor of “a radical, antiwar, unpopular journal” called The Masses, which urged protest and draft resistance when the United States entered World War I. When the Postmaster General refused to mail the magazine, saying it reeked of sedition, Hand ruled that wasn’t the same as out-and-out sedition, and that The Masses had a right to distribution:

“Assuming that the power to repress such opinion may rest in Congress in the throes of a struggle for the very existence of the state, its exercise is so contrary to the use and wont of our people that only the clearest expression of such a power justifies the conclusion that it was intended.”

A bold ruling, yes, and one that might have cost Hand a chance at earlier promotions, perhaps even a shot at being named to the Supreme Court, but it was in keeping with Hand’s non-activist philosophy. He didn’t attack the principle of sedition as expressed by the government, but rather whether the idea should be applied so broadly. The Masses didn’t quite compel resistance to the war effort; rather, Hand maintained, it just counselled it.

“Hand was clearly a partisan of liberal values in his defenses of free speech and toleration,” Gunther writes. “But unlike many of his fellow liberals, his devotion to the cause never deteriorated into self-righteous, uncritical allegiance. Off the bench as well as on, he retained the capacity truly to listen to the other side’s arguments and agonizingly to reexamine his own premises.”

Hand as he appeared in his chambers at the U. S. Second Circuit Court of Appeals, 1950s. By this time he had been its chief judge for well over a decade; by decade's end, he would commemorate 50 years of service on the federal bench. Image from http://www.wnd.com/2015/08/the-1950-ruling-that-may-prevent-shariah-law/.

Gunther saw this aspect up close, while clerking for Hand: “Most of Hand’s clerks, fresh out of law school, were startled to find this experienced jurist, a near mythical figure…asking for help and insisting on candid criticism and continuous oral participation in the decision process.” Gunther goes on to note that Hand prized those clerks who picked apart his thinking most unguardedly.

Hand remained a consistent opponent of judicial activism, even in times of liberal hegemony. This fact causes Gunther obvious pain, especially when Hand uses the platform of his final lecture at Harvard University, his alma mater, to criticize the Warren Court for such rulings as Brown v. Board of Education. Here Gunther struggles rather lamely at offering excuses for his mentor’s position, rather than treating it more dispassionately as a matter of principle and consistency. It wasn’t the idea of desegregation that bothered Hand, but the way Brown assumed such an curative power lay in the judiciary acting alone, making them in effect “a bevy of Platonic Guardians.”

Gunther’s strong liberal bias normally works in this book’s favor, given Hand’s own philosophical bent in that direction. Here, and in some other places, it seems to blind Gunther to a fuller appreciation of what Hand was about, that his sensitivity regarding judicial restraint was well-honed enough not to shift with the tides of his own political preferences.

In the end, Hand was not a true believer of any particular stripe, not since rejecting Christianity as a young man. In his early years of practicing law, Hand dabbled in a particular robust strain of Progressivism for a time, and supported Theodore Roosevelt’s third-party bid for President, but eventually abandoned this after finding Teddy too unrestrained for his liking. He helped found The New Republic, a journal of liberal-minded opinion, but moved away from that publication as he sought to reflect a more disinterested approach in keeping with his sitting on the bench.

It’s odd how Hand’s unorthodox approach to life helped form him in the end as one of the sturdiest arbiters of case law as it is commonly revered today. His decisions, as laid out by Gunther, were thoughtful, measured, and detailed in writing meticulous enough to withstand scrutiny almost a century later. Even if you didn’t agree with a particular decision, there was something in his manner that cast off doubt. Whatever questions you had, you sensed Hand had asked them of himself.

“Probing the underlying questions beneath the surface of words, rejecting glib formulations, suspecting absolutes, and striving for orderly sense amid the chaos of legal wisdoms, he was innovative in areas he thought legitimately open to judicial determination,” Gunther writes.

It is in the end what makes Hand in Gunther’s presentation a signal judge, worthy of remembrance among the elite minds of American jurisprudence despite his never being named to the Supreme Court. Despite some dryness and tendentiousness in the telling, Gunther’s biography makes a compelling case for Hand’s greatness.