HAND, LEARNED (1872–1961)

Learned Hand is widely viewed, with oliver wendell holmes, louis d. brandeis, and benjamin n. cardozo, as among the leading American judges of the twentieth century. His influence on constitutional law stems more from his extrajudicial advocacy of judicial restraint and his modest, yet creative, performance on lower federal courts in fifty-two years of judging than from the relatively few constitutional rulings among his nearly 3,000 decisions.

Christened Billings Learned Hand, the son and grandson of upstate New York lawyers and judges, Hand dropped the Billings after graduating from Harvard Law School in 1896. Hand surrendered to family pressures in turning to law rather than pursuing his interest in philosophy engendered by his Harvard College teachers, including William James, Josiah Royce, and George Santayana. In six years of practice in Albany and seven in New York City, he performed competently but considered himself inadequate. But the young lawyer's associations with New York City intellectuals and reformers prompted President william howard taft to name the thirty-seven-year-old Hand to the federal trial bench in 1909. President calvin coolidge elevated him to the Court of Appeals for the Second Circuit in 1924, where Hand served for the rest of his life.

Hand's persistent belief in judicial restraint antedated his appointment to the bench. He had been strongly influenced by james bradley thayer at Harvard Law School. His major publication before the judgeship was an article attacking lochner v. new york (1905). His deepseated skepticism and allergy to absolutes, as well as his devotion to democratic policymaking and his unwillingness to be ruled by a bevy of Platonic Guardians, made him disdainful of judges ready to pour subjective philosophies into vague constitutional phrases. He was unwilling to suppress his hostility to judicial activism, developed in the era of the Nine Old Men and its use of substantive due process to strike down economic regulation, in the post-1937 years, when the philosophy of harlan fiske stone's footnote to united states v. carolene products company (1937), with its preference for personal rather than economic rights, gained ascendancy.

In his early years as a federal judge, Hand participated widely in extrajudicial activities. He was a member of the group that founded The New Republic magazine, and he helped draft theodore roosevelt's Bull Moose platform in 1912. Indeed, he was so devoted to the Progressive cause that he permitted his name to be entered as that party's candidate for the New York Court of Appeals in 1913.

After world war i, Hand decided that his position precluded extrajudicial involvements in controversial issues. But he had frequent occasion to continue airing his views of the judicial role in papers and addresses, many of which are collected in The Spirit of Liberty (1952). Hand's Holmes Lectures, delivered at Harvard three years before his death and published under the title The Bill of Rights, were an extreme restatement of Hand's hostility to the Lochner interventionist philosophy. The lectures even questioned the judicial enforceability of vague bill of rights provisions.

Hand's judicial reputation rests mainly on his crafts-manlike performance in operating creatively within the confines set by the political branches. His strength is best revealed in the way he handled many small cases in private law and statutory interpretation. He probed deeply to discover underlying questions, rejecting glib formulations and striving for orderly sense amidst the chaos of received legal wisdoms. Although constitutional issues seldom came before his court, he touched upon a wide range of them, from favoring strong enforcement of fourth amendment guarantees in United States v. Rabinowitz (1949) to offering innovative views on defining obscenity in United States v. Kennerley (1913).

Hand's most important judicial contributions dealt with political speech under the first amendment. His most enduring impact stems from his controversial decision in masses publishing co. v. patten (1917). The ruling, overturned on appeal, protected the mailing of antiwar materials in the midst of national hostility to dissent. Hand's approach shielded all speech falling short of direct incitement to unlawful conduct. Two years later, the Supreme Court, in its first confrontation with the problem, refused to go so far as Hand had. Instead, schenck v. united states (1919) launched the clear and present danger test, under which the protection of speech turned on guesses about its probable impact. In a rare disagreement with his one judicial idol, Oliver Wendell Holmes, Hand criticized Holmes's approach, in abrams v. united states (1919) as well as Schenck, as an inadequate bulwark against majoritarian passions. With the Supreme Court adhering to Holmes's standard for decades, Hand assumed that his Masses approach had failed. But in 1969, Hand's incitement test, combined with the best elements of Holmes's approach, became the modern standard for First Amendment protection, in brandenburg v. ohio (1969).

Hand is equally well known for recasting and, many believe, diluting the clear and present danger test by affirming convictions of the Communist leaders in united states v. dennis (1950). This ruling reflected not only Hand's mounting skepticism about judicial protection of fundamental rights but also his consistent obedience to Supreme Court pronouncements. In affirming the Dennis convictions, Chief Justice fred m. vinson ' s plurality opinion adopted Hand's reformulation as the proper criterion. Hand, however, remained convinced even in the 1950s that his Masses approach offered better protection to dissenters.

The distinctive traits of Hand's model of judging—open-mindedness, impartiality, skepticism, restless probing—came naturally to him. Those traits were ingredients of his personality by the time Hand became a judge. Philosopher and humanist as well as judge, Hand remained intellectually engaged, ever ready to reexamine his own assumptions.

Hand's unmatched capacity to behave according to the model of the modest judge was not wholly a conscious deduction from the theory of judicial restraint instilled by Thayer and confirmed by Hand's early experiences. It was at least as much a product of Hand's temper and personality. The doubting, open-minded human being could not help but act that way as a judge. Hand's major legacy, to constitutional law as well as to all other areas of the law, lies in his demonstration that detached and open-minded judging is within human reach.

Gerald Gunther
(1986)