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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His social concerns continued at Harvard, whose system of social clubs he encountered on matriculating in the fall of 1889. In the spring of Hand’s second year, he was one of 83 members of his class of 300 elected to the Institute, the organization that formed the selection base for “final clubs,” membership in which was an index of social prestige. Of those selected for the Institute, around 70 were invited onto the next rung of the club social hierarchy, the DKE or “Dickey,” from whose members the final clubs were eventually drawn. The names of those selected to the Institute were published in Boston newspapers in the order of selection, and Hand’s name was sufficiently far down the list that he was not invited into the Dickey. Later, he would describe himself as being “on the fringe socially” at Harvard.

Hand was also not much of a success in extracurricular activities, failing to be accepted into the glee club, the football team, and the varsity crew. But he was an outstanding student, graduating magna cum laude. His particular interest was philosophy, and he considered pursuing a graduate degree in that field, but resolved not to do so after Josiah Royce, one of his teachers, failed to respond with enthusiasm when Hand proposed doing graduate work. Hand probably over-reacted to Royce’s seemingly lukewarm response; the incident revealed his continuing insecurities about his own intellectual prowess. He then “drifted into” Harvard Law School, pursuing a professional path of least resistance.

Once in law school, however, Hand found that he was appreciated, both intellectually and socially. His intellectual gifts were quickly recognized by his contemporaries, resulting in his being elected to the Pow-Wow Club, the most prestigious of the clubs that participated in moot court arguments, and the Harvard Law Review, a student-edited journal that publishes scholarly works, even before he had received any grades. Membership in those organizations widened his circle of friends, and after his first year he moved into a boardinghouse with some of his classmates. That residence became the social and intellectual center of his life at Harvard Law School: After a year, he resigned from the Law Review and was never very active in the Pow-Wow Club. His close friends included some members of socially prominent families, but on the whole he and his circle valued intellectual exchange above all. By the time Hand graduated from Harvard Law in 1896, he had become more self-confident, both academically and socially.

But despite his success at Harvard, Hand retained an insecurity about his fitness for competitive law practice, and chose to return to Albany, where he lived at home and joined a small firm. He remained there until 1902, when he accepted a position with a Manhattan firm, where he practiced until 1909. Generally speaking, this time in Hand’s life was neither successful nor rewarding: He associated his years in Albany with “a kind of mournful dreariness,” and later in his life stated that he “was never any good as a lawyer.”

Hand was good, however, at intellectual companionship. He had become interested in reform politics at the turn of the century and was active in “good government” circles in Albany and New York City. His connections would prove useful when an additional federal judgeship was created in 1909, and the Taft administration, eager to promote its reformist credentials, resolved to make a good government appointment.

Learned Hand’s appointment was a testament to the widespread perception among those who had encountered him in good government circles that judging would lead to his strengths. That perception was correct. And as Hand grew more comfortable as a judge, he retained his interest in politics and in ideas generally; his correspondence enabled him to cater to those interests.

In December 1917, Hand received a letter from Judge Charles Merrill Hough on the U.S. Court of Appeals for the Second Circuit, which reviewed cases appealed from Hand’s district court. Hough enclosed in the letter Hand’s opinion in a contracts case, which the Second Circuit affirmed. He added that, although he found Hand’s opinion “amazingly interesting .  .  . as illustrating your turn of mind,” he also wondered “why in the world you work so hard to arrive at an end which .  .  . might be so much easier reached.” Hough had noticed Hand’s tendency to analyze straightforward cases in great detail and depth “many times before,” and warned him that “you wear yourself unduly by unnecessary exertion.”

Hand responded with a letter agreeing with Hough’s comments:

I see all these difficulties. I suppose I see too many; when I do see them, it seems to me that an adequate statement of the case requires their consideration and their answer. I can’t do the work any differently. I have got to go into these things.

The exchange captured the essence of Hand’s attitude toward his judicial work. He took it extremely seriously, seeking to delve fully into every case he considered and to craft as painstaking and intellectually satisfying an opinion as he could. His instincts toward moderation and tentativeness disinclined him to leap quickly to the resolution of a case, and once he reached it, he labored to find justifications that he found adequate. Regularly, as Hough pointed out, this resulted in elaborate presentations of cases whose resolution seemed simple enough.

But Hand, as he noted to Hough, couldn’t work any other way. In fact, he loved the process of analyzing legal issues, arguing with himself, reaching a decision, and then seeking to justify it. He would subsequently describe himself as a judicial “jobbist,” one of a group of judges who were primarily interested in putting out the best products they could in an unadvertised fashion. After Hand became a Court of Appeals judge in 1924, he regularly hired a law clerk to assist him every year, but the clerk never wrote a line of his opinions or helped Hand with legal research. The law clerk’s function was to provide a sounding board as Hand thought through the issues of a case.

A consequence of Hand’s approach was that he felt compelled to master the technical details in which cases that came to him were set. As a result, he became conversant in such arcane specialties as admiralty and patent law, and his opinions became recognized as illuminating overviews of the state of the law in multiple fields. No case was trivial or routine for Hand. He sought to “see all the difficulties” and to derive “an adequate statement” of the issues presented.

Hand’s approach meant that in the great majority of the cases he decided—which involved issues of common law and statutory interpretation—he could think of judging as an exercise in intellectual creativity. But on the question of how much latitude judges had to review the decisions of legislatures under the due process clauses of the Constitution, Hand advocated a more restrained approach. His position was the result of two early experiences in his career.

Of all the professors Hand encountered at Harvard Law School, his favorite was James Bradley Thayer, whose course in constitutional law Hand took during his third year. Hand remembered Thayer as “imbu[ing] us with a scepticism about the wisdom of setting up courts as the final arbiters of social conflicts” in constitutional cases, because “most of constitutional law had been constructed out of circular propositions, which justified the predetermined attitudes of the judges.” The only way to prevent the courts from becoming “a legislative body with a veto” was for judges “to hold back and have a certain moderation” when reviewing the constitutionality of legislative acts.

Hand’s enthusiasm for Thayer’s limited conception of judicial review in constitutional cases was reinforced in the first decade of the 20th century, when the Supreme Court began striking down state minimum-wage and maximum-hours legislation as invasions of “liberty” under the 14th Amendment’s Due Process Clause. Hand responded with a 1908 article in the Harvard Law Review, “Due Process of Law and the Eight Hour Day,” in which he criticized the Court’s decision in Lochner v. New York to invalidate a New York state maximum-hours law for the baking industry.

In the course of suggesting that maximum-hours legislation was an “experiment,” and “the legislature, with its paraphernalia of committee and commission [the] only public representative really fitted” to carry out social experiments, Hand added, “There is an inevitable bias upon [social] questions in all men, and the courts are certainly recruited from a class which has its proper bias.”

Hand was to retain his limited conception of judicial review in constitutional cases for the remainder of his career. He held it through years in which it represented the approved “progressive” response to heightened judicial scrutiny of social and economic legislation, and years in which it coexisted uneasily with increased judicial protection for free speech after World War II.

The latter set of implications for limited constitutional review was particularly awkward for Hand, since he had staked out a highly speech--protective view of restrictions on expression as early as 1917. But he retained the view that aggressive judicial review of legislation under the due process clauses was not justified under any textual reading of the Constitution, and that it was dangerous. This position did not detract from the general esteem in which he was held: On two occasions, in 1930 and in 1942, he barely missed being nominated to the Supreme Court.

The most visible statement of Hand’s approach to judicial review came in 1958, when he delivered the Holmes Lectures at Harvard Law School. In those lectures, he described the due process clauses as “not definite enough to be guides on concrete occasions,” suggested that there was no principled basis for a different standard of review when a legislature was restricting civil rights and liberties as distinguished from economic activity, questioned the Supreme Court’s intervention to invalidate racial segregation, and indicated that judicial protection for free speech could not be justified on constitutional grounds, only on the belief that legislatures were especially likely to repress unpopular forms of expression and needed a “third chamber” to restrain them.

Hand’s uncompromising defense of limited judicial review isolated him from the main currents of jurisprudential thought in the late 1950s and 1960s: In 1964, Judge Charles Wyzanski, one of Hand’s former clerks, declared that Hand’s position had not been “supported by a single eminent judge or professor.”

Hand’s jurisprudential isolation at the very end of his career was ironic, for his views had placed him at the center of elite reformist legal thought for most of his judicial life. Whether the issue was the Supreme Court’s use of doctrines such as “liberty of contract” to fashion interpretations of the due process clauses, or wages and hours legislation, or the suppression of “subversive” expressions, or racial segregation, or the prosecution of Communists, or the deportation of aliens lacking “good moral character,” Hand approached each with the sensibility of a Bull Moose Progressive who had evolved into a moderate mid-century liberal.

But his political instincts rarely penetrated the carapace of judicial modesty that he had erected around his work as a judge. Ultimately, that modesty was ironic as well, because no one worked harder to get to the bottom of legal issues than Hand, or labored more diligently to construct rhetorical justifications for the conclusions he reached—or was more convinced of the rightness of his position once he had reached it.

There were, nonetheless, dimensions of uncertainty and self-doubt in Hand’s stance—not so much about his ability as a judge but about his worth as a person. It was this uncertainty, coupled with his great abilities and his abiding intellectual curiosity, that made him a boon companion. And nowhere is Hand’s distinctive version of companionship more visible than in his correspondence.

G. Edward White is the David and Mary Harrison Distinguished Professor of Law at the University of Virginia and the author, most recently, of Law in American History, Volume I: From the Colonial Years Through the Civil War