POLITICS JULY 4, 1994
The publication of Gerald Gunther's biography of Learned Hand is a canonical sort of event. Hand never made it to the Supreme Court, but he is generally ranked, as Gunther emphasizes at the beginning of his book, in the more rarefied company of twentieth-century judicial deities that includes Holmes, Brandeis and Cardozo. And Gunther is a high priest in his own right: after clerking for Hand in 1953, he went on to write the leading casebook on constitutional law, and was anointed as Hand's official biographer by Felix Frankfurter, who dissuaded Hand from burning his personal papers by impulsively promising him that Gunther would chronicle his life.
More than two decades after beginning his research, Gunther has produced, as expected, the definitive biography of Hand. But if the risks of the project included a potential lack of critical distance, then Gunther has overcome them. The most impressive achievements of this exceptional book are not only Gunther's legal analysis but also his subtle psychological account of a morbidly insecure, fearful personality, who agonized endlessly about "how I came to be such a nut," who would throw temper tantrums from the bench and then dance about his chambers singing Gilbert and Sullivan, and who managed to endure almost thirty years of wrenching separations from a wife who preferred the company of a Dartmouth French teacher. By approaching his self-consciously literary subject from a literary as well as a legal perspective, Gunther has painted a beautifully textured and balanced portrait of America's most refined judicial aesthete.
But would the Supreme Court really have been well-served if Hand had won the appointment he was repeatedly denied? It is a tribute to Gunther's objectivity that one finishes the biography with lingering doubts about whether Hand's reputation is entirely deserved. As a common law judge, fashioning elegant formulas to resolve disputes between private parties, Hand's attention to detail and his ornate, belletristic style were unmatched. But as a constitutional theorist, his views can only be called exotic. For he was an advocate not of judicial restraint but of total judicial abstinence. In his 1958 Holmes lectures at Harvard, his response to the excesses of the Warren Court was to emasculate the Bill of Rights entirely: the dangers of judicial over-reaching were so great, he felt, that citizens should regard the Constitution and its amendments as a series of admonitory moral principles, rather than as a set of rights to be enforced by judges. And the Holmes lectures represented more than the unguarded despair of an 86-year-old man: they were the culmination of a lifetime of proposals to repeal, or to ignore, various provisions in the Bill of Rights, all justified in the name of judicial prudence.
Hand's struggle to reconcile his liberal skepticism--he defined liberty as "the spirit that is not too sure it is right"-- with the power of judicial review reflects the central drama of twentieth-century jurisprudence; but his descent from skepticism into constitutional nihilism is a cautionary tale. When President Clinton, in announcing Stephen Breyer's nomination to the Supreme Court, compared Breyer's vision of liberty to Hand's, he cannot have understood the dark vision that he was endorsing.
The personality that emerges from Gunther's early chapters is perversely appealing, not least for the endless self-doubt and protestations of failure. (Henry Adams comes to mind throughout the biography.) Born in Albany in 1872, Hand felt oppressed by the expectations of his father, a lawyer whose achievements, Gunther notes, were considerably more modest than his family maintained. Even his name gave him agonies. He was christened Billings Learned Hand (his mother, Lydia Coit Learned, came from a family that had long used family surnames as given names); and he worried whether "Billings" and "Learned" were adequately "masculine," or whether they suggested a "sissy."
At Harvard College, a class photograph indicates, Hand was a solemn homunculus whose pointed beard earned him the nicknames "Mad Russian" and "the Mongolian Grind." Although he distinguished himself at college, and was the class day orator in 1893, his intellectual heroes, Santayana, James and Royce, failed to encourage his desire to teach philosophy; and so he went to law school instead. ("Law has always been a kind of slop box for boys who don't know what else what they want to do anyway," he sighed years later.) At Harvard Law School he fell under the spell of James Bradley Thayer, whose approach to constitutional law "was to imbue us with a skepticism about the wisdom of setting up courts as the final arbiters of social conflicts."
Graduating in 1896, Hand practiced law for more than a decade in New York City, with little to show for his efforts. "I was never any good as a lawyer," he told incredulous listeners in later years. "I didn't have any success, any at all." Based on his growing reputation as an intellectual in New York salons, however, President Taft appointed him a federal district judge in 1909, when he was 37. And fifteen years later he was promoted to the U.S. Court of Appeals for the Second Circuit, where he served until his death in 1961.
Gunther describes Hand's poignant marriage to Frances Fincke by quoting extensively from their private correspondence. Like Felix Frankfurter, who spent a lifetime writing effusive, self-dramatizing letters to an unresponsive, and apparently resentful, wife, Hand addressed Frances as "Kitten" or "Kitty," occasionally as "Dearest Puss," "Dearest Heart of Life" and "My Dearest of Women"; and his affectionate signatures included "Your Woodcockie" and "Your Own Pucky Catnip Boy." Frances, for her part, saved her own endearments for her lifelong friend, Mildred Minturn, with whom she had a kind of Boston marriage at Bryn Mawr. In the Victorian fashion, they addressed each other as O.S., for "Only Sister."
After thirteen years of marriage and three daughters, Frances met Louis Dow, who taught French at Dartmouth, and began to spend several months each year with him at the Hand summer house in Cornish, New Hampshire, while Learned Hand pined and churned in New York. "I don't know how much longer I can take this," he confessed to a friend, even as he wrote a stream of self-flagellating letters blaming himself for her neglect. "The first task of that man's biographer," Walter Lippmann once told Ronald Steel, "will be to enquire why he remained for so long on such good terms with his wife's lover." But Gunther is a little opaque on the underlying question: "It is by no means clear that they were in fact lovers, even though some people, especially in Lippmann's generation, thought so." As Dow finally expired in 1944, Frances flew to his Cornish deathbed, while Learned, pleading a "nagging cold," added apologetically, "I hope Lou will not be too much disappointed."
Hand's most important friendship during his first years on the bench was with Herbert Croly, founder of The New Republic. They met in Cornish during the summer of 1908; and it was Hand who sent Theodore Roosevelt a copy of Croly's book, The Promise of American Life, which Roosevelt invoked repeatedly during the Bull Moose campaign in 1912. Hand also relied on the tenets of Croly's "New Nationalism"--public control of corporations, public support of trade unions and protective legislation for factory workers, women and children--when he helped to draft the Bull Moose platform. After concluding that his excursions into progressive politics were threatening his judicial detachment, Hand found a home at what he called "the House of Advanced Truth," the new magazine Croly was founding in a yellow brick townhouse on West 23rd Street.
No person, according to Gunther, was closer to Croly during the organizing year than Hand was: not only did he help to select the editors, but he also drafted a circular to solicit potential subscribers, and even chose the circulation manager. Croly repeatedly tried to convince Hand to leave the bench and join the magazine, either as an editor or a columnist. But like Frankfurter, who turned down Croly's offer of an editorship to teach law at Harvard, Hand preferred to keep his connection informal: he wrote several brief essays, most of them published in 1914, all but one of them anonymous. The theme that runs throughout Hand's pieces is progressive idealism. In his first contribution he called on expert, independent agencies, rather than courts, to develop standards of anti-trust policy.
Hand's essays in The New Republic are useful evidence that the radical abstinence in his later Holmes lectures had its roots in his progressive politics. In his articles Hand attacked the decisions of the Lochner-era Supreme Court, where the justices invoked the vague language of the due process clause to invalidate progressive economic legislation. (The clause, which says that no person shall be deprived of "life, liberty, or property, without due process of law," refers only to legal procedures; but the Court interpreted it to mean that certain substantive economic liberties could not be deprived under any circumstances.) Hand's outraged comment on the Coppage case, where the Court struck down a Kansas "yellow dog" law prohibiting employers from discriminating against union members, sounded an improbably populist note: "Are we not finally driven to the conclusion that such decisions come from the prejudices of that economic class to which all the justices belong, and that they are merely unable to shake off the traditions of their education?" The due process clause, Hand argued, "can never be other than the means by which courts exercise a legislative function." With admirable consistency, Hand stuck to this position throughout his career, even when the Court began to invoke the doctrine of "substantive due process" for liberal rather than conservative ends.
At the root of the problem, Hand insisted, was the danger of granting legislative powers to judges who are independent of popular control. Judicial self-restraint, which he favored, or popular control of the judiciary, which he loathed, were the only possibilities consistent with democracy. But there was nothing restrained about Hand's proposed solutions to the problem. In his Coppage editorial in 1914, he called for a total repeal of the due process clauses: "The possible uses [of due process] at best are trifling compared with the evils which come from decisions like these; it will be a great gain to take out of all constitutions such provisions as the Fifth and Fourteenth Amendments." After the 1923 Adkins decision, which struck down minimum wage laws for women, Hand embraced Senator William Borah's proposal to require a 7-2 majority for all Supreme Court decisions invalidating laws under the due process clause. In his eagerness to avoid judicial over-reaching, in other words, Hand was willing to jettison the procedural as well as the substantive guarantees of the due process clause, whose antecedents stretched back to Magna Carta.
Although Hand had no qualms about tampering with the text of the Constitution, he was reluctant to tamper with the sacred prerogatives of judges or courts. He opposed, for example, fdr's court-packing plan, and Theodore Roosevelt's proposal in 1913 for popular recall of judicial decisions, on the grounds that both would threaten judicial independence and political stability. In the same spirit he opposed the 1958 Jenner-Butler bill designed to curb the power of the Warren Court by eliminating its jurisdiction over cases involving loyalty and subversion. "Some final authority," he said, "is better than unsettled conflict." He appeared, at times, to be more concerned with preserving the institutional autonomy of judges than he was with preserving the Constitution itself. But both positions were consistent with his horror of direct popular controls and his exaltation of elite judges, restrained by their own sense of discretion rather than by the textual Bill of Rights.
If Hand's constitutional nihilism were limited to his hostility to the doctrine of substantive due process (which does not appear in the Constitution), then perhaps he could be forgiven as an overzealous textualist. After all, the resurrection of substantive due process in the contraception and abortion cases of the '60s and '70s confirmed many of Hand's fears about judicial legislation. But throughout his career, Hand continued to advocate and to practice judicial abstinence, upholding laws even when they conflicted with rights that do appear explicitly in the text of the Constitution. He invalidated an act of Congress only once in his fifty-two year career, and even then he could only bring himself to strike down part of FDR's National Industrial Recovery Act, rather than the whole act. During his first twenty-five years on the bench, he found only two state laws unconstitutional, and both decisions filled him with qualms.
Hand's most infamous refusal to enforce individual rights is his 1951 decision in the Dennis case. He upheld the Smith Act, a sweeping federal sedition law passed in 1940, and he sustained the conviction of eleven Communist Party leaders for advocating revolution. (To be more precise, the defendants were charged with conspiring to organize a group to advocate revolution, a charge that came perilously close, as Harry Kalvin has noted, to a conspiracy to organize a conspiracy to commit a speech crime.) Instead of skeptically evaluating the government's implausible claim that teaching Marxist-Leninist doctrine would lead inevitably to violence, Hand melodramatically described the world situation during the cold war: "Any border fray, any diplomatic incident, any difference in construction of the modus vivendi--such as the Berlin blockade we have just mentioned--might prove a spark in the tinderbox, and lead to war." And instead of focusing carefully on the immediacy of the danger, Hand announced a lax reformulation of Holmes's "clear and present danger" test. In words the Supreme Court would endorse, Hand said that courts must ask "whether the gravity of the `evil,' discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger." This gave judges broad discretion to balance their personal notions of public order against the value of free expression.
Can Hand's unsettling performance in Dennis be reconciled with his lifelong commitment to freedom of expression? Gunther emphasizes Hand's personal opposition, expressed in letters and courageous speeches, to the Red Scares of the 1920s and the 1950s; and he stresses that, as a trial judge, Hand had taken a much more expansive view of the First Amendment. In the 1917 Masses case Hand proposed a rigorous First Amendment test that the Supreme Court ignored at the time but eventually adopted in the 1960s. The Masses suit arose under the Espionage Act of 1917, which made criticism of the government a federal crime for the first time in nearly 120 years. According to most judges of the era, speech was punishable if violation of the law was the probable effect of the words. According to Hand, however, judges had no special competence to foresee the future; and they were not likely to be immune to the "herd instinct" of wartime hysteria. He urged instead a more "absolute and objective" test focusing on the nature of the words themselves, rather than on their probable consequences. If the words counseled a violation of the law, then they could be forbidden; if not, they had to be protected.
Hand's Masses test was undoubtedly advanced for its day, and more protective of free speech than Holmes's "clear and present danger" test. (It inspired Zechariah Chaffee to dedicate the first edition of his free speech treatise to Hand rather than Holmes.) Still, Gunther seems a little too quick to invoke the Masses as an excuse for Hand's performance in Dennis. Until the end of his life, Gunther insists, Hand remained personally committed to the brave libertarianism of the Masses test, but he was bound in Dennis by three decades of confused Supreme Court precedent. In an article in 1975, however, Gunther ventured a slightly less charitable explanation of the gap between Dennis and Masses:
Perhaps most basic of all were Hand's growing doubts that courts could truly aid in preserving freedom of expression in times of crisis. That skepticism was far deeper in his later years than it had been during World War I. By the time of his Holmes Lectures in 1958, he had come to view the First Amendment as one of a set of moral abjurations, not as a judicially enforceable norm.
Certainly, if Hand's constitutional legacy were evaluated solely on the basis of the Holmes lectures, then he would be dismissed as a judicial eccentric rather than lionized as a paragon of restraint. Reading the lectures after reading Gunther's fair-minded account of them, I found them really over-the-top: grandiose, precious and ultimately lawless in exhorting judges to refuse to enforce the entire Bill of Rights--the First Amendment as well as the more amorphous parts. Hand's first lecture, "When A Court Should Intervene," raised eyebrows in 1958 with its breezy assertion that there was no foundation in constitutional text or history for the judicial power to strike down democratically enacted laws.
This provoked one of the most famous rebuttals in modern legal history, Herbert Wechsler's 1959 article, "Toward Neutral Principles of Constitutional Law," which meticulously demolished Hand's textual and historical claims. Wechsler also criticized Hand's suggestion that the need to avoid political turmoil and anarchy, rather than constitutional logic, might justify the invalidation of laws in rare cases. Rejecting Hand's magisterial notion that judges should strike down laws as a matter of prudence only when the constitutional system was in danger of "collapse," Wechsler called on the Warren Court to justify its decisions with "neutral principles"--principles that transcend any immediate result or danger presented by a particular case. Wechsler's article shaped constitutional scholarship for a generation, while Hand's more strident attack on the Warren Court was discreetly ignored.
Hand's second lecture, "The Fifth and Fourteenth Amendments," repeated Hand's longtime thesis, which Gunther calls "clearly outside the mainstream of modern legal thought," that "due process" and similarly vague constitutional phrases were essentially unenforceable by the courts. But Hand then took the more radical step of singling out Brown v. Board of Education as an example of unprincipled judicial legislation. The criticism was unexpected, since Brown was based, at least ostensibly, on the equal protection clause of the Constitution--a textually enumerated right--rather than on the malleable doctrine of substantive due process.
Hand's final lecture, "The Guardians," was the most startling of all, because it dealt with the First Amendment, a specific command, not marred by the vague language of the due process clause. A close reading of the lecture leaves little doubt that Hand's position in Dennis was a matter of personal conviction, and not simply a reluctant surrender to higher authority. Proudly invoking his Dennis test, Hand insisted that there was no justification in the Constitution for heightened judicial scrutiny of laws threatening free speech. As in the due process cases, he said, a statute challenged under the First Amendment must prevail "unless the Court is satisfied that it was not the product of an effort impartially to balance the conflicting values." Hand went on to dismiss the religion clauses of the First Amendment as well, suggesting that he would refuse to strike down even a law that forbade the broadcasting of vituperation against a particular religion.
Gunther is surely right to emphasize that "the bleakness, pessimism and extremism of Hand's final major statement did not do full justice to the richness, subtlety and complexity of his lifelong effort to reconcile free expression and judicial restraint." Still, the Holmes lectures cannot be dismissed as an unfortunate aberration; for Hand sounded the same themes repeatedly throughout his career, from his New Republic days onward. The frequently quoted bromides from his "I Am an American Day" address in 1944, for example, are a similarly radical brief for judicial abstinence: "Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it." This is the speech that President Clinton, Attorney General Janet Reno and Senator Carol Mosley-Braun are fond of quoting in their populist moods; if they understood its implications, however, they would find another speechwriter.
What can explain the gap between Hand's eccentric views on constitutional interpretation and his sterling reputation as a common law judge? Part of the answer, perhaps, is that private law and constitutional law call for very different styles of adjudication; and Hand, whose docket in New York included few important constitutional cases, never quite appreciated the difference between the two. The most revealing statement in the Holmes lectures is Hand's suggestion that vigorous judicial review of constitutional questions is "apt to interfere with [the] proper discharge" of the judge's vital, less glamorous duties, especially the interpretation of statutes. Hand, in other words, saw constitutional interpretation as less important than statutory interpretation, and he counseled judges to conserve their energy for the higher task. But he based this peculiar conclusion not on the text or structure of the Constitution (which, in fact, establishes the opposite hierarchy between constitutional law and statutory law), but on his own exalted conception of a judge's role.
Set to one side, then, Hand's radical views about the Constitution. Can his reputation be sustained on the strength of his private law opinions? Gunther interestingly and self-consciously ignores Hand's three most famous opinions: the Carroll Towing case, in which he proposed a pithy, algebraic formula to determine liability for negligent behavior; the Aluminum Company case, which established basic principles of anti-trust law; and the T.J. Hooper case, where Hand refused to allow an industry to set its own standards of risk.
None of these opinions is in any way modest or restrained--"Courts must in the end say what is required," Hand announced in Hooper--and they suggest that Hand's expressions of weakness and obsequiousness in constitutional cases were designed to offset the broad judicial lawmaking power that he asserted in common law cases. But each of them demonstrates the qualities that have won Hand the respect of legal scholars: scrupulous attention to the facts, a talent for synthesizing and clarifying unruly legal doctrines and an exuberant academic originality.
Henry Friendly, who was Hand's successor as chief judge of the Second Circuit (and a more brilliant constitutional interpreter than Hand), said that "Hand's stature as a judge stemmed not so much from the few great cases that inevitably came to him over the years ... as from the great way in which he dealt with a multitude of little cases, covering almost every subject in the legal lexicon." And Gunther's most fascinating legal analysis focuses on obscure cases, where Hand and his colleagues used pre-conference memoranda to discuss their preliminary conclusions before meeting to vote. The memos, previously unpublished and unexamined, reveal that by complete immersion in the facts of the most esoteric cases, Hand was capable of insights that eluded judges who were less obsessively engaged.
Hand's reputation, in the end, rests as much on his ornate style as on his contributions to legal doctrine. His metaphors, as Carl Landauer has noted, were often deliberately opaque: he wrote of a "perpetual Walpurgisnacht of meaningless agitation," or described a tax measure as "a tempering of the wind to the shorn lamb." His copyright opinions, where he clarified the legal principle that copyright covers only forms of expression, rather than ideas, are perhaps his most impressive achievement; and he had a weakness for flamboyant plot summaries and character descriptions. In the 1931 Nichols case, Hand retold four times in succession the story of Madeleine Smith, who poisoned her lover in Glasgow in 1857: he described the historical incident, the play, the novel and finally the movie, before concluding that mgm was guilty of plagiarism. Hand's prose, which he wrote in longhand with a pen that he filled from an eye dropper, may seem a little perfumed for modern tastes, but the infinite pains that Hand took over his opinions--he would often produce thirteen hand-written drafts, demanding criticism from his clerks at every stage--sustained his zenlike focus on the task at hand.
For those of us who tend to lionize judicial craftsmanship, Hand shows its strengths and limitations. The image of the craftsman was one that Hand self-consciously cultivated. From his Harvard teachers, he said in the Holmes lectures, he learned "that it is as craftsmen that we get our satisfactions and our pay." And in a commencement speech at Bryn Mawr in 1927, after attacking the choking conformity of the '20s, Hand argued that creative satisfaction comes from choosing work "because one likes it and for no other end," and from performing it "with an acute sense of craftsmanship." As a principle of self-realization, this is obviously correct; and the creative satisfaction of distilling coherent forms and shapes from the unruly fragments of legal doctrine was, for Hand, a bulwark against uncertainty and paralyzing despair.
But the ultimate test of a judicial opinion is not simply whether it is well-written, or whether it brings creative satisfaction to its author, but whether its arguments are intelligible, if not persuasive. ("Will it wash?" Hand repeatedly asked himself and his clerks.) In constitutional cases one has the sense that Hand's aphorisms sometimes got the better of his syllogisms, and helped to perpetuate his reputation for brilliance even when his conclusions were open to question. It's no wonder that New York lawyers of a certain generation regarded Hand's opinions as less reliable than those of his cousin and colleague, Augustus Hand: they were taught to "quote Learned, but follow Gus." Hand's embrace of constitutional abstinence, in fact, seems as much an aesthetic as a legal position: there is no more elegant point of repose than perfect self-restraint.
In common law cases, by contrast, Hand's meticulous craftsmanship has helped his opinions to endure, even when their legal conclusions have failed to withstand the test of time. In the Aluminum Company case, for example, many of Hand's conclusions about anti-trust law, such as his notion that size alone is a sufficient basis for breaking up a firm, now seem out of date. But the opinion itself remains impressive because of Hand's scrupulousness in disclosing the thought processes of an intelligent judge at work. One sees him considering all sides of the issue, weighing the arguments frankly and defending his conclusions in a reasoned manner.
Hand's legacy as a craftsman is a useful answer to the critics of judicial craftsmanship today. In an article in the Harvard Law Review in 1983, Mark Tushnet dismissed the value of craftsmanship as a principle of judicial restraint. The limits of craft are so broad, Tushnet argued, that in any interesting case any reasonably skilled lawyer can reach whatever result he or she wants. For example, Tushnet argued, "it seems to be generally agreed that, as a matter of simple craft, Justice Harry Blackmun's opinion for the Court [in Roe v. Wade] was dreadful." But to criticize Blackmun for missing the best arguments in Roe, Tushnet added, is like saying that a "Cubist portrait does not look like its subject as a member of the Academy would paint it." As long as the result in Roe can be defended by better judicial craftsmen than Blackmun, then "the requirements of the craft would mean only that good judges can do things that bad judges cannot without subjecting themselves to professional criticism." Never mind whether Roe is more like Picasso or a finger painting. Hand shows that the holding of an opinion is less useful, as a measure of a judge's professional integrity, than the quality of the reasons adduced to defend it; and that the only hope of evaluating whether the reasons have led to the result, or vice versa, is scrupulous full disclosure.
At the end of Gunther's wonderful biography one admires Hand more as a man, but less as a judge, than at the beginning. His anxious self-doubt and his constant striving for personal aesthetic fulfillment through law are inspiring. But judicial abstinence, for all of its elegance, is not an acceptable stance in a constitutional democracy; nor are Hand's mystic appeals to prudence really as restrained as they appear. "While it is proper that people should find fault when their judges fail," Hand wrote, "it is only reasonable that they should recognize the difficulty. Let them be severely brought to book when they go wrong, but by those who will take the trouble to understand them." Gunther helps us respect Hand as a judicial aesthete of the purest kind; but as for the Supreme Court appointment that never came, perhaps it was just as well.
Jeffrey Rosen is the legal affairs editor at The New Republic.