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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While one of the virtues of Hand’s correspondence is that it serves as a barometer of events of national and international significance over the course of much of the 20th century, another is that Hand and his correspondents did not simply make reference to those events. They engaged, on the whole, in intelligent conversation about them. In those conversations, one gets a glimpse of the starting assumptions that framed the analysis of public events by members of the 20th-century American intelligentsia.

An illustration of those assumptions is provided by a 1957 exchange of several letters between Hand and Frankfurter discussing the constitutionality of antimiscegenation statutes, an issue that both foresaw coming to the Supreme Court in the wake of Brown v. Board of Education. (The Court did eventually consider the constitutionality of a Virginia statute and declared it invalid, but that was not until 1967, two years after Frankfurter’s death.)

In the exchange on miscegenation, Hand asserts that, once one granted the premise of Brown—that legislative classifications based on race violate the Equal Protection Clause—antimiscegenation statutes must fall, because they permitted same-race marriages but outlawed interracial ones. In response, Frankfurter proposed various devices—the idea that the Fourteenth Amendment’s Equal Protection Clause does not specifically refer to race; the doctrine that the Court should be hesitant to decide “political questions”; the claim that racial classifications might be acceptable for some purposes—to avoid reaching Hand’s conclusion. But both men entered into the discussion with the same view of racially mixed marriage. Hand states, “I must own that it is to me a most unwelcome result,” and Frankfurter claims, “I know I would not have agreed to .  .  . [the proposition] that distinctions between different biological strains, colored and ‘white,’ are now out,” after Brown. Frankfurter added, “I shall work, within the limits of judicial decency, to put off decision on miscegenation as long as I can.”

Thus, one could know little about Learned Hand the judge, or legal issues generally, and still profit from exposure to Hand’s correspondence. But for those inclined to seek a fuller explanation of why so many of those who came in close contact with Hand felt that he should have been appointed to the Supreme Court and that, had he been, his nomination would have received universal acclaim, what do the letters tell us about Hand as a person and a judge?

Two themes surface: Hand’s gift for intellectual companionship and his commitment to the intricacies of creating an accomplished judicial work product.

Hand grew up in Albany, where his father and grandfather had both been lawyers. He was an excellent student, but he had inherited a family tendency toward anxiety, and his lack of athletic ability, plus the fact that his mother was overly protective of him after his father died when he was 14, made him worry that he was a “sissy.”