About Billings Learned Hand
The New York Times
May 1, 1994
Master of Restraint
By JOHN T. NOONAN JR.;
LEARNED HAND The Man and the Judge. By Gerald Gunther. Illustrated. 818 pp. New York: Alfred A. Knopf. $35.
Learned Hand. It is a name that that belongs with John Marshall, Oliver Wendell Holmes, Louis Brandeis and Benjamin Cardozo: among the eminences of the American judiciary. Every law student encounters this curious name, and every student discovers the correspondence of the name to the deeply erudite judge who was a superb craftsman of the law. One comes to know the judge through his opinions and through his essays (such as those collected by Irving Dilliard in "The Spirit of Liberty"). But from the writing one knows nothing of the inner tensions, the family relations or even the political path taken by the man. Gerald Gunther's masterly study "Learned Hand: The Man and the Judge" gives us the life of the man integrated with the life of the judge. It is the fullest, most sensitive, most penetrating of judicial biographies. I do not know its equal.
Hand's inner tensions came, at least in part, from his heritage. His father, Samuel, a lawyer who was briefly a judge of the New York Court of Appeals, died when his son was 14; for the rest of his life he was haunted by his father's idealized image. To an extent even his odd name was a source of anxiety. When he was born in 1872, in Albany, his parents adopted the practice of his mother's family: using family names as first names. His mother's maiden name was Lydia Coit Learned, and her son became Billings Learned Hand. Years later, Hand said that his parents had thought of calling him Billings Peck Learned Hand, but, deciding that "was going pretty strong . . . they left out the Peck." At home he was often called simply "B," and his most intimate friends continued to use that designation the rest of his life. His parents mostly called him Learned, but it was only in college that he dropped Billings altogether, even from his signature.
His mother encouraged the boy's idealization of his father and added her own incessant worrying about her dutiful and guilt-ridden son. She was a Calvinistic Congregationalist who transmitted to her son what he called "a constant anxiety complex," exacerbated by his own rejection of the Christian faith he had been moved to express at his father's death.
At Harvard, Learned Hand found the skeptical George Santayana his most sympathetic mentor, and on occasion in his writing he can be seen adapting Santayana's metaphorical interpretation of religion. But Hand was never entirely at ease; he sprinkled his essays with biblical phrases and paraphrases and on at least two public occasions made remarkably reverent references to Christ. He remained a doubter, troubled by his doubts.
Those doubts -- of himself as much as of any creed -- play into what is the most dramatic tale in Mr. Gunther's book: Hand's relationship with his wife. When he was 29 years old and an Albany bachelor largely inexperienced with women, he met Frances Fincke on a summer holiday at Murray Bay, Quebec, in 1901. She was Bryn Mawr '97, determined to be independent and doubtful that she "should ever be willing to be the doormat of a man of genius -- (for all my life)."
She kept him waiting for a year before she said yes and they kissed for the first time. They married three months later, in December 1902. They had three daughters in five years: Mary Deshon Hand was born in 1905, Frances in 1907, Constance in 1909. Learned was delighted with his life; Frances was his "Kitten," his "Kitty," his "Dearest Puss." But by 1908 she was capable of writing him, "Tell me . . . that you still hold me in affectionate remembrance and by the way what arrangement is made by the Mt. Kisco Telephone Co. about our telephone in winter."
In 1910 the Hands began to summer in Cornish, N.H., Frances's choice, a nine-hour train ride from New York. In Cornish they became friends with Louis Dow, a professor of French at Dartmouth. In 1913, after his wife entered a mental hospital, Dow began a bachelor's existence, and his friendship with the Hands deepened. By 1914, Constance Hand was spending several weeks at his home in Hanover. Meanwhile, Frances was extending her summer vacation, frequently visiting Cornish in the fall and sometimes making winter trips as well. Louis Dow became a house guest, whether Learned Hand was present or not, and when he was not there Louis sat in his place at the head of the table. Frances went for long walks with Dow, rode with him, picnicked with him, motored with him, read French with him -- all of which she reported to her husband in New York.
By 1918 Hand, left alone in New York during the summer, was asking whether they could "correct" their long separations: "Can we? I wonder. Shall we? I think not." "I don't know if I can take this," he said to a friend. But take it he did. In the 1930's Frances Hand and Louis Dow traveled several times to Europe together. Their relationship ceased only with Dow's death in 1944.
This whole story, worthy of Henry James, is delicately told by Mr. Gunther, who was once a law clerk to Hand and then to Chief Justice Earl Warren, and who now teaches law at Stanford University. He also delicately tells the story of Frances Hand's intense friendship with her college classmate Mildred Minturn. He never goes beyond the evidence -- in this case letters of Dow and the Hands, supplemented by interviews with people who knew them all. As with the relation of Henry Adams to Elizabeth Cameron, of Justice Holmes to Lady Clare Castletown, of Clementine Churchill to Terence Philip, the outsider can only speculate about its physical nature (I believe it was governed by the code expressed in "The Age of Innocence" by Edith Wharton); its emotional character is relatively clear. Hand once affirmed his likeness to the cartoon figure Caspar Milquetoast. It is a surprising comparison for Hand the judge; it is not so far off for Hand the husband. Yet the Hands stayed married 59 years, and the later years were marked by mutual affection.
The patience, fortitude and self-restraint so evident in this relationship also characterized Hand's work as a judge. With patience and fortitude he dealt with literally thousands of cases, beginning as a Federal district judge for the Southern District of New York in 1909 and continuing in 1922 as a judge of the Court of Appeals for the Second Circuit. By the time of his death in 1961 at the age of 89 he had served longer than any Federal judge in history.
Longevity was, perhaps, a necessary but not a sufficient cause for his fame. Hand made his contribution to the law in the only way a judge can, by the careful consideration of the facts before him, a thoughtful review of relevant precedent and a reasoned explanation of why he reached the result he did. He performed these elementary and essential tasks with a brio that came from a conviction that this kind of job was worth doing, and that he could do it well by exacting scrutiny, penetrating analysis and effective expression. The perfect balance of these three elements in Hand's opinions is their most distinctive mark.
The craftsman was committed to neither a conservative nor a liberal agenda, but to a creed of judicial restraint he had learned at Harvard Law School from J. B. Thayer and had reinforced by his own experience of democracy. Judicial restraint was the watchword of liberals when conservatives dominated the courts; it continued to be the watchword of judges like Hand and Felix Frankfurter even after liberals were in judicial ascendancy. The result is that Hand's opinions do not wholly please either left or right. To illustrate: In United States v. Dennis (1950) he upheld the conviction for conspiracy of the American leaders of the Communist Party; in United States v. Coplon (1950), because the prosecution failed to show that illegal wiretaps did not lead to the evidence against a Justice Department employee, Judith Coplon, he reversed her conviction for Communist espionage. Political correctness was not his concern. He sought to produce the right decision.
But what makes a judge right? It is not approval by a higher court. In one of Hand's worst opinions he maintained in a dissent that the Government could hold indefinitely on Ellis Island an excluded alien whom no other country would have; the Supreme Court, 5 to 4, bought Hand's position. One of his most sensitive opinions invalidated the drafting of Irwin Levy, a student for the Orthodox rabbinate in a Brooklyn seminary, because the draft board had improperly delegated its authority to a theological advisory panel made up of Conservative and Reform Jews; in another case involving a student from the same seminary, the Supreme Court unanimously rejected Hand's reasoning.
Rightness in the end is the fit of the result to the facts, compiled with the possibility of generalizing the result. No formula will produce it. No judge is right every time. The legal profession has always felt that Hand was right most of the time in matters of Federal criminal law, in the commercial areas of antitrust, copyright, patents and trademark, and in the common law of torts. He excelled in statutory interpretation in which the perceptive judge, as Hand put it, "can peer into the purpose beyond its expression and bring to fruition that which lay only in flower." In a 1917 case involving the magazine The Masses, Hand as a Federal district judge fashioned a historic formula for the protection of free speech.
Why, the question is always asked, was such a judge not promoted to the Supreme Court of the United States? The answer is that appointment to that court is an essentially political process. Having begun his practice of law in Albany, Hand moved to New York City and joined a Wall Street firm in 1902. The next year he met an older lawyer, Charles C. Burlingham, who immediately responded to Hand's eloquence and quickness of mind. Burlingham's friendship was crucial. In Mr. Gunther's words, the older man "loved pulling strings," and he did that with spectacular success for 50 years. It was eventually Burlingham's influence more than anything else, Mr. Gunther says, that secured Hand's appointment to the district court by President William Howard Taft in 1909 (he also says that, several years later, it was Burlingham who engineered Benjamin Cardozo's appointment to the Federal bench).
BUT three years later Hand publicly supported Theodore Roosevelt, when Roosevelt bolted from Taft and the Republican Party. He even ran for the New York Court of Appeals in 1913 in order to strengthen Roosevelt's Bull Moose ticket in the state. As a result he was dead with Taft, who remained the chief voice on Republican nominations to the Supreme Court until 1930. In 1942, Frankfurter urged Franklin D. Roosevelt to appoint Hand, then 70, to the Court, but Roosevelt, trapped by his own earlier rhetoric against the Court when he called the Justices "nine old men," instead appointed Wiley B. Rutledge, who was 48. Hand outlived Rutledge by 12 years. He wrote some of his best opinions in his 70's.
To write good judicial biography requires a lawyer's grasp of the law, a historian's exactness and circumspection, and a biographer's empathy and balance. Mr. Gunther has brought this unusual combination of talents to his task. He brings himself on the scene only once, describing how Hand used his law clerks in the appeals court not to write his opinions (these he wrote himself) but to critique them vigorously. Here is part of his account of Hand's 1953 dissent in United States v. Remington, the case of a Government economist who had been convicted of perjury when he denied being a Communist:
"After seven weeks, he handed his most recent effort to me. 'Now look at this one; see if this one holds water any better.' I studied the new draft for several hours and returned to his desk. Hand looked up eagerly: 'Well, will it wash?' I responded that portions of the opinion now seemed reasonably airtight, but there were still weaknesses in other sections.
"Hand looked at me darkly, pain and annoyance clouding his face. He heaved a deep sigh, then picked up a small paperweight on his desk and threw it in my general direction, missing me by only a narrow margin. 'Damn,' he shouted, 'I can't go on forever like this! Thirteen drafts and it's still not satisfactory? Son, I get paid to decide cases. At some point, I have to get off the fence and turn out an opinion. Enough!'
"I had never heard Hand speak in such anger. I turned pale and retreated, shaken, to my desk in the adjacent office. I flung my head down on the desk and tried to regain my composure. After a minute or so, I felt a hand gently tapping the back of my head. Judge Hand, in his stocking feet, had silently left his desk, come into my office and hoisted himself to a sitting position on my desk. I raised my face and looked up into his bemused countenance. 'Now, now,' he gently consoled, 'you can't take it that way! It's all part of the job! Don't take it so hard -- you did your job; I have to do mine.' "
Hand did do his job. Mr. Gunther has done his.
John T. Noonan Jr., a judge of the United States Court of Appeals for the Ninth Circuit, is the author of "Persons and Masks of the Law" and "Bribes."
Learned Hand's Timeline
January 27, 1872
Albany, New York, United States
December 6, 1902
March 28, 1905
New York, New York, United States
April 9, 1907
New York, New York, United States
August 18, 1961
New York, New York, United States