One of the greatest judges ever to sit on Ihe federal bench, Learned Hand was passed over by seven Presidents in their appointments to the Supreme Court of the United Stales. JUDGE CHARLES E. WYZANSKI, JR., who was appointed to Ihe United States District Court of Massachusetts in 1941, recounts the career of this extraordinary jurist whom he once served as secretary.
by Judge CHARLES E. WYZANSKI, JR.
FEW judges have been so acclaimed during their lives as Judge Learned Hand, who died on August 18, 1961, in his ninetieth year. Two years ago the court in which he sat held a special session to commemorate his unprecedented half-century of service on the federal bench. Lay and professional journals in countless articles rightly referred to him as the greatest contemporary judge in the Englishspeaking world. Everywhere lie was recognized as the heir of Holmes’s triple crown as jurist, philosopher, and poet of liberty.
Much of Judge Hand’s reputation was derived from the skill and artistry with which he performed court tasks that others would have treated as routine. Some ol it was traceable to the felicity with which he spoke on ceremonial occasions; his speech lent “a lustre and more great opinion, a larger dare to our great enterprise.” But what counted most was that his vision, unrestricted by boundaries of partisanship, provinciality, or narrow mores, had an inclusive wisdom, a Shakespearean understanding of what men are like. He shared their melancholy and their robust joy. Like Montaigne, he knew that, though a man sits upon the top of the world, yet sits he upon his tail.
Judge Hand’s strength traced its sources to the most distinguished legal family in northern New York. His father was for a short time judge of the state Court of Appeals, and his uncles, grandfather, and more remote ancestors held places of eminence at the bar and on the bench. His training at Harvard College coincided with and benefited from the golden age of its philosophy department. At the Harvard Law School he studied under masters, whom he praised in memorable words, now carved on the walls of Austin Hall and originally spoken as part of the 1958 Holmes lectures, delivered to the largest throng ever assembled to hear a law-school speaker.
At thirty-seven years of age, Learned Hand was appointed by President Taft to the United States District Court for the Southern District of New York. He averred that his acceptance involved no sacrifice, for he had not been a large moneymaker at the bar. No doubt, potential clients regarded him as too brilliant to be a counsel of sound judgment. And, as Holmes indicated, it is judgment, or, more strictly, a reputation for it, for which men pay.
When he sat alone in the trial court, Judge Hand often touched the superlative. The Corn Products case may serve as an example. A generation in advance of the Supreme Court, it grasped the relevance of the Sherman Act to the second industrial revolution. Judge Hand’s injunction against the postmaster’s exclusion of The Masses from the mails, though reversed on appeal, is seen, in retrospect, as the precursor of the federal courts’ present protection of freedom of the press.
With a jury, Learned Hand was not always a sufficiently silent judge. Yet he could speak to laymen with such simple persuasiveness in civilliberties cases that his charges were regarded as textbook models. They foreshadowed his most renowned address, given in Central Park to newly naturalized citizens.
HAND waited fifteen years before promotion to the Court of Appeals. One reason may have been that, imprudently, in 1912 he had accepted the bootless nomination of the Progressive Party for Chief Judge of the State of New York. He had responded to affection for Theodore Roosevelt, despite the reckless Colonel’s misstatement that it was Judge Hand who led him to advocate the recall of federal judges.
By the late 1930s, when L. Hand, Swan, and A. N. Hand had become, as it were, its “first team,” the Second Circuit had acquired a professional reputation comparable to that of the New York Court of Appeals under Chief Judge Cardozo. For Judge Learned Hand, the companionship of his brethren was, aside from his deep ties with a charming, sympathetic wife and three beautiful and attractive daughters, the central satisfaction of his life. He cherished the friendship of Judge Swan, the distinguished former Yale dean, whose purity, learning, and experience balanced Hand’s own almost feminine intuition and quickness. His “Cousin Gus” had been a friend since childhood. As boys, “Gus” and “B” (the surviving indication that he had been christened Billings) had roamed the countryside of Elizabethtown, New York, where Grandfather Augustus and Uncle Richard, in turn, had been leading lawyers of the county. Together the youngsters had cross-examined Civil War veterans, learned (heir slang, and memorized their songs, which later Learned Hand was to record for the Library of Congress.
One day B said, “Gus, we have jawed about everything except religion.” The devout yet ever sensible older cousin replied: “I’ve never thought that would be useful.” Indeed, when in his eightyninth year, Judge Hand, and Mrs. Hand, read aloud the Gospels, he was still troubled by the number of miracles; although, as his speeches show, he was much moved by the personality of Jesus and by his message of compassion. In the Hand family, from the days of their youth, it was oft repeated that Gus had better judgment than B — a view shared by Justice Robert H. Jackson, who wittily advised the bench and bar: “Quote B; but follow Gus.”
Sitting with Judges Swan and Augustus N. Hand, and their subsequently appointed colleagues, who revered their chief, or, as he later became, their “Old Chief,” Judge Learned Hand wrote more than 2000 opinions. Many dealt with what from other pens would have been dull accident cases, published as a shapeless mass. But the Hand touch has marked them with principles possessing generative power. Thus, a doctrine originating in the common law of torts sometimes was transplanted by Hand in an admiralty cause and gained a new posterity. In regard to unfair competition, he wrote with such comprehension of the marts of trade, of competitive needs, and of the limits of fair play that a casebook on equitable relief could have been compiled from his judgments alone.
To criminal law he brought a mind informed by experience, deepened by erudition, and sensitized by awareness of the history of the struggle for liberty. He did not need to be reminded that “Power and Appetite are the two sides of Commodity.” Hobbes, Rousseau, and Whitehead had taught him that civilizations are held together in part by persuasion, but also, in no small part, by coercion. Those who by their own lawless violence resisted the legitimate violence of the Great Beast Leviathan received from him short shrift. When a plainly guilty man had had a fair trial, Hand was not quick to discover error. Even when he cared little for a particular prohibition or penalty, he did not evade the law’s mandate. Yet he was no friend of barbaric police or ruthless prosecutors. The squalid huckster whose constitutional rights had been abused had no better guardian.
More than any other lower-court judge, he was the architect of our present structure of antitrust law. Entrusted by a special act of Congress with the Aluminum case, for which a quorum could not be found in the Supreme Court, he faced a record so prodigious that Life magazine amused its readers by photographing the judge flanked by the dozens of printed volumes. Yet he cut through the jungle a path which has been to all his successors the clearest route for decision of cases charging monopolization. In Associated Press are aperqus not yet fully explored. The judge’s imaginative reach forecasts an emerging “rule of law” for private associations. It suggests ways by which limitations may be placed upon clusters of combined strength, procedural fairness may be assured, power be divided, and adverse interests be marshaled. The opinion stretches the “rule of law” from the public sector where it originated to the private sector which it seeks to subdue.
Judge Hand’s interpretation of statutes reflected his long concern with the ultimates of political theory. Since his student days, he had pushed the inquiry into whether there is a “common will.” His answer was that law represents a compromise achieved by competing interests. If the compromise was made in the strictly political forum of the legislature, the statute embodying the agreement is merely to be interpreted, not altered one jot, by the judge. For him to substitute his supposed sagacity or sympathy is an arbitrary, despotic intrusion.
Some in the Supreme Court and in the law schools saw in Hand’s admonitions too great a reluctance to construe statutes in the light of a tradition of common-law liberties and a prospect of social progress. They condemned him for “il gran refuto” — for his unwillingness to use the keys of power and direction they regarded as characteristic of high authority. But Judge Hand made it clear that he had no commission or competence for the office of guardian in a platonic or in a welfare state.
He saw no reason to believe that judges know best, or, indeed, that there is any theoretical best to be known. How he would have chuckled in agreement with Bacon: “We are much beholden to Machiavelli and others that wrote ‘what men do, and not what they ought to do.’” Much as he admired his friend Lord Radcliffe, Judge Hand did not subscribe to the revival of natural law concepts so appealingly developed in The Law and Its Compass. If the legislature votes to go to the everlasting bonfire, let the voters, not the judges, stand athwart the primrose path!
Hand never held unconstitutional an entire act of Congress. His Schechter opinion invalidated the labor, but would have saved the fair-trade-practice, provisions in the N.R.A. codes. If his 1958 Holmes lectures on the Bill of Rights are to be taken at one of their Janus-faced values, Hand would not have declared state law unconstitutional unless it impinged on national power. But on that occasion Hand was speaking with the nonresponsibility enjoyed, and enjoyed to the full, by academic lecturers. A retired judge’s telling the young of the follies of power and the futility of judges is one form of sharing experience. He who sits where marching orders must be enforced or canceled is not free to be a mere “captain of a huckleberry party.”
WHEN Judge Hand faced one of the most awesome responsibilities that ever rested upon an American judge, the appeal of the eleven Communists in Dennis, he did not evade responsibility. He knew that, ever since he had construed a mere statute in The Masses, he was regarded as an authentic glossator of the First Amendment. His letter to Holmes, dated June 22, 1918, published in connection with Laski’s comment thereon dated July 5, 1918, showed that there was a time when he drew almost no boundaries to free speech. More than this, because Hand was facile princeps among American judges, because he was the successor in public imagination of Holmes as the apostle of liberty, because none doubted Hand’s integrity, detachment, and long vision, his voice carried a reverberating echo. If he voted to set aside the convictions, five on the Supreme Court might follow. If he voted to affirm, five would surely follow him in both result and reasoning.
With unmatched persuasive power, Judge Hand sustained the convictions. With scrupulousness and simplicity, he analyzed the case law. He found Holmes’s “clear and present danger” test wanting, and he substituted as an approach “the gravity of the evil discounted by its improbability.” From the premise that no government can tolerate revolution, he concluded that the Constitution does not preclude Congress from punishing preliminary steps, even if they be only in the form of advocacy of action.
The majority of the Supreme Court, of the bar, and of the public have agreed with Judge Hand. He made the choice which was not merely vindicated by contemporary opinion but was consistent with his deepest conviction of the subordinate role of the judiciary as only the disinterested interpreter of the stated will of the dominant forces in society. Not a few critics say this puts too low the creative, ethical, and spiritual possibilities of the judge. It minimizes his constitutional role of appealing to the sober second thought of the community. It reduces to “seven green withes” the constitutional bonds restraining the legislative Samson. And it converts what the framers erected as a prohibition into a mere adjuration.
But Judge Hand would have answered that a constitution which only a court can save can no longer be saved. Judges, he believed, were not only weak in numbers and in influence but often too far removed in origin, experience, and outlook from the emerging forces in society to overrule them on grave matters. He would have denied that he had any augmented authority derived from the esteem enjoyed by great judges, of whom he was so conspicuous an example. Such place as he had, he professed to believe, followed from the disinterested limitations he and his fellows recognized, not from the affirmative aspirations he and they had realized. He spoke of giving to each litigant his due under the rules of the game. But did he wrestle hard enough with the Angel to be sure of what lies beyond the rules and fills some with a confidence that that is not law which is only law?
In preparing opinions, the judge almost never dictated, and assuredly never copied the text of any law clerk. He sat with his legs upon the desk, a drawing board spread across his knees. On yellow sheets he scribbled, crossed out, and interwove well-nigh undecipherable symbols. As he said, he “thought with his fingers.” No room is there for Ben Jonson’s oft-quoted criticism of Shakespeare: “in his writing . . . he never blotted out line. . . . Would he had blotted a thousand.”
Judge Hand’s final product was trimmed of all excess. Yet the published form was a faithful mirror of his manner of speech. Latin tags were part of his normal system of thought. Literary allusiveness reflected the overflowing pressure of his constant reading. And the odd turn he sometimes gave a compressed phrase was the revelation of his personality, not the contrivance of an artificial man. Is not his style reminiscent of John Donne’s? Both use a poetic gift to pierce patterns dulled by habituation. A Hand opinion is comparable to a sonnet: a distillation of thought, prepared within limits strictly defined by convention, but emanating an afflatus beyond the established boundaries.
HAND’S most important activities away from the courthouse were at Harvard and the American Law Institute. Twice he was an overseer. In the tercentenary year he was chosen president of the Harvard Alumni Association, it being the universal view that he was Harvard’s most eloquent living spokesman, the William James of his generation.
The ALI officially recognized him as founder, vice president, member of the Council, adviser on many restatements, and its frequent choice as principal speaker. But the unofficial side was even more sparkling. With Senator George Wharton Pepper he sang Gilbert and Sullivan. He told the Council that the only fellow handsome enough to succeed Senator Pepper as president was Harrison Tweed. He played penny-ante poker at Northeast Harbor with the advisers on the torts restatement. He recited with the full flavor of the original Irish, Yiddish, and Italian accents the story of the New Jersey political meeting held at attention by repeated invocations of the verse from Goldsmith’s “The Deserted Village”:
Where wealth accumulates, and men decay.
Sometimes Learned Hand could be fierce in battle at the Council table. But even the neophyte soon perceived that this most royal warrior, while valiant, was never spiteful, mean, or petty. And what a triumph it was for any professor or junior judge to have the great Hand admit, as he so readily did when there was occasion, “a hit, a palpable hit.”
Off in a corner at a Law Institute session, a former Hand law clerk would recall, from his year of glory, a tale or two to amuse the judge’s friends. Do you remember the year the court had to pass upon the patent for a Kiddie Kar? The judge put himself astride the toy and rode around the Post Office Building, calling on one after another of his brethren. What do you think of the photographs of Judge Hand in The Jump Book and at the exhibition of the story of man at the Museum of Modern Art? Were you in Washington when the judge scandalized the graybeards by proposing that in the Model Penal Code sex offenders, except where there was involved violence or seduction of minors, should be left to canons of taste and morals? Do you recall how Learned Hand wouldn’t let his law clerks give the Harvard Law School a painting of him, and how he finally agreed to a bust by Eleanor Platt, “who made Brandeis look like Loki.” Then, when the sculpture was finished, the judge said it was too grand for any place but a bowling alley. Finally his son-in-law, Norris Darrell, had the imagination to get Gardner Cox to visit him at his home. Gardner Cox, sharing the judge’s own sense of fun, caught him in, or provoked him into, a puckish mood, a mood quite as characteristic as the more commonly seen selfscrutiny and ever-deepening doubt of a Hamlet.
Judge Hand was a regular attendant at the Century Association, which took such pride in him that it struck a medallion in his honor. There, at the Monday Club, which met on Tuesday evenings, and at a dozen other places he proved that, unlike Holmes, he was the hero of his own crowd, as well as of the intellectuals and of the artists. They would have backed B against any American or Englishman, living or dead, for omniscience and raillery. Sometimes they may have found him not too far from T. S. Eliot’s description of Paul Valery: “Intelligence to the highest degree, and a type of intelligence which excludes the possibility of faith, implies profound melancholy.” But when he appeared depressed, Learned Hand would rally his friends by proclaiming that he most resembled one of his own female relatives who asserted that she did not remember the morning when she had risen from bed glad to be alive, to which her vigorous, vital husband replied: “And I don’t remember the night, darling, when you weren’t glad to go to bed!”
How could it have befallen that this paragon was never tendered appointment to the Supreme Court of the United States? Luck, says Justice Frankfurter. Political distrust, say the die-hards who crushed the Progressive wing of the Republican Party. Geographical accident, say those who recall that Hughes, Stone, and Cardozo, all from New York, sat in Washington when Hand was ripe for appointment. When two of them had gone, F.D.R., mindful of his specious argument at the time of the court-packing bill, felt compelled to conclude that “B has just the right intellectual age; can’t you do anything about his chronological age?” That was an insurmountable question. Yet some felt that, while Learned Hand outwardly accepted his situation with calm, “the trophy of Miltiades would not let him sleep.”
But those who most loved the judge believed he had been governed by a kind fate. For, though he easily bore battle when the contestants respected joy in work and his faith in the Jobbists’ creed, he suffered more than most when participants and onlookers descended to personal abuse and indecent exposure of private confidences. The judge cared far too deeply not only for truth but for a value even higher, love for the errant spirit of man. No man, nor woman either, can show a scar he willingly inflicted. He himself had lived too near the edge of despair. He had looked into the pit, and nearly reeled.
But if Learned Hand knew of men’s sadness and of their need for pity, so also he knew and shared their zest for life, their enjoyment of pleasure, their search for the superlative. There is no man or woman who in his happiest hour would not have wanted Learned Hand in his company.
There he walks out of the frame in which Gardner Cox portrayed him. He wears that suit he had made in England with the cuffs unbuttoned and rolled back. See that smart gray vest! Hear him sing with such bravura! Observe the twinkle under those bushy brows! He has unashamedly announced that his destination is the Abbaye de Thélème, and that there he plans to file an affidavit of loyalty to its motto, “Fay ce que vouldras.” But the words he has chosen have been, as always, most subtly selected upon the assumption that you, too, have more than a bowing acquaintance with the masters of the past. What he has denominated pleasure freely chosen indubitably signifies what others call man’s highest duty: To cherish the spirit radiant from every man; To pursue unflinchingly the quest for truth; To hold aloft the pennant of honor.