The Magazine

On the Other Hand...

The judicial temperament, in private.

Feb 25, 2013, Vol. 18, No. 23 • By G. EDWARD WHITE
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Learned Hand, whose last year of judicial service was 1961, may be poised on the edge of obscurity, but Ronald Dworkin’s foreword to this volume serves as a reminder that many of Hand’s clerks ended up occupying very distinguished positions in the legal profession. A review of Hand’s opinions on the federal district court for the Southern District of New York, and on the Second U.S. Circuit Court of Appeals will reveal some marvelous performances; though, as with all judges whose tenures took place in past eras, opinions gradually lose their precedential weight, and a selective treatment of opinions in contemporary law school casebooks can distort impressions of a judicial career.

Judge Learned Hand (center) is honored for 50 years' service on the federal...

Judge Learned Hand (center) is honored for 50 years' service on the federal bench.

Time & Life Pictures / Getty Images

Fortunately, in some instances, collections of letters can serve to revive interest in a judge as an erudite observer of human affairs. But any list of American judges who wrote and received interesting letters would be a short one, and there have been precious few collections of judicial correspondences. Joseph Story’s son published a life of his father that included several letters, some of them quite revealing. Roger Taney wrote regularly to family members, although those letters have not been published. Samuel Miller wrote numerous letters about his work on the Court, mainly to his brother-in-law. Those letters have regularly been utilized by scholars, but remain unpublished. Louis Brandeis had several “conversations” with Felix Frankfurter during Brandeis’s tenure on the Court; Frankfurter made notes of the conversations, and they were subsequently published.


That exhausts the list, with three significant exceptions. Oliver Wendell Holmes Jr. had an extensive correspondence with several people, and a good deal of it has been published, including Holmes’s exchanges with Frederick Pollock, Harold Laski, Lewis Einstein, John C. H. Wu, and Felix Frankfurter. Frankfurter himself was a frequent correspondent, and, in addition to his conversations with Brandeis and his letters to and from Holmes, a volume of his correspondence with Franklin D. Roosevelt has appeared.

The third exception is Learned Hand, and Hand’s correspondence is arguably the most wide-ranging of the three. When Gerald Gunther published a biography of Hand in 1994, some reviewers were startled by the amount of space Gunther devoted to Hand’s extrajudicial activities, particularly his involvement with national politics. Hand’s correspondence justifies that emphasis. Although a fair amount of it discusses legal issues, more is directed toward national affairs. In fact, one could use Hand’s letters as a vehicle for tracing the central concerns of educated Americans over the first five decades of the 20th century: The emergence of the Progressive movement, two world wars, the Great Depression, the Cold War and the emergence of McCarthyism in the 1950s, freedom of speech, race relations, isolationism—all of those developments are commented upon by Hand and his correspondents.

The roster of those correspondents furnishes something of a Who’s Who of American law and politics in the same period. Included among the persons who corresponded with Hand are Holmes, James Bradley Thayer, Augustus Hand (Learned’s cousin and a fellow Court of Appeals judge), Henry L. Stimson, Theodore Roosevelt, Herbert Croly, Zechariah Chafee, Alfred E. Smith, Benjamin Cardozo, Charles Evans Hughes, Charles Wyzanski, Harlan Fiske Stone, Dean Acheson, Louis Henkin, Harry S. Truman, Elliott Richardson, George Kennan, and Erwin Griswold.

Three additional individuals, intimate friends of Hand, have their correspondence featured: the art historian Bernard Berenson, the political columnist Walter Lippmann, and Frankfurter. The correspondence between Frankfurter and Hand began in 1911 and continued, without much interruption, for the next 50 years.