MAY 5, 2013
FOR ANYONE INTERESTED in 20th century American history, Constance Jordan’s collection of Judge Learned Hand’s personal letters in Reason and Imagination is a must read. Judge Learned Hand is the most quoted judge in American history, save for a few members of the US Supreme Court — a position Hand himself yearned for but never attained. It’s no surprise that his letters are filled with keen and original observations about the world scene, social trends, and leaders of his time. Covering the suppression of civil liberties during World War I, the League of Nations, the Red Scare, and school desegregation, Reason and Imagination is a sweeping retelling of American history from one of its most intelligent, dispassionate participants.
Hand’s first career was as a trial lawyer in New York. However, lacking any confidence in his trial skills, Hand mounted a successful campaign for a federal judicial appointment at the age of 37. He was soon sitting as a federal trial judge in New York City, appointed by President William Howard Taft. Hand was nonetheless never very fond of Taft. In the 1912 Republican primary, he vocally supported Theodore Roosevelt over Taft, publicly and in letters addressing Roosevelt as “Dear Teddy.” When Taft was nominated Chief Justice of the United States, Hand wondered “whether such a fat man, 64 years old, will be able to keep up with the work of the Court.” Taft, who held decisive influence over any nominations to the Supreme Court until 1930, never forgot Hand’s slights.
Hand weighed in on other presidential elections with interesting insights. When Teddy Roosevelt left the Republican Party to run for president on the Bull Moose ticket, Hand was not as enthusiastic. “I should not want to announce this publicly,” Hand told future Supreme Court Justice Felix Frankfurter, “but I am quite willing to tell you that I am really disappointed in the Colonel and his candidacy.”
Hand called President Woodrow Wilson “the type of statesman which I most distrust, and individually a most repellant human being, on the whole the American president for whom I have achieved the greatest personal dislike.” Hand voted for FDR three times, but prior to the last of those elections he told a friend, “I am voting for F.D.R., and while it would be too much to say that I do so con amore, I am getting relatively more comfortable about it. If only I could wean myself of my dislike for the complacent, self-righteous, self-seeking crew of social-workers who surround him.” Years later in 1956, commenting on one young, up-and-coming vice-presidential candidate named Richard Milhous Nixon, Hand told Felix Frankfurter: “This Nixon sticks in my crop.”
Hand had only been a district judge for a few years before World War I broke out. As is custom during wartime, American civil liberties were being brushed aside in the name of national security. Two months after America’s formal entry into the war, Congress passed the Espionage Act of 1917, which essentially made it a crime to criticize the government or praise its enemies. Hand was the first judge to rule on a case arising from a violation of the Espionage Act. In that case, Hand upheld the right of a magazine publisher to print a satirical political cartoon criticizing US involvement in the war.
This decision was an unprecedented win for First Amendment free speech principles. After issuing the decision, Hand wrote a personal letter to the magazine publisher:
I do not feel sympathy with your approach to the question of social and economic reorganization, or the means by which you seek to bring it about. That I prefer another way, does not blind me to the wisdom of giving you the chance to persuade men of yours. Yours is a way, whether it is a good way or a bad way, of getting men to think and feel about those things on which it is most important that they should think and feel. I can conceive no possible defense for excluding you except either that such matters must not be discussed, or that they must be discussed only in a way which accords with the common standards of taste. One alternative is tyrannous absolutism, the other, tyrannous priggism.
You would think Hand would be happy when peace came with the signing of the Treaty of Versailles after the war. But he read the treaty carefully, and he saw within it the seeds of disaster. “I can’t feel very encouraged when I see nothing better than the thinking of the stone-age, smashing everybody and smashing without any idea of what you really want.” He realized that the acrimonious terms set the stage for Adolf Hitler’s rise to power. Half a world away, Hitler was touting similar criticisms and attacks of the Treaty of Versailles in beer halls around the country. Perhaps this is why years before Hitler became chancellor, Hand understood the errors of the peace treaty: “In order to make the world ‘safe for democracy’ we are to […] create more grievances than before.”
Hand was almost in his 70s when the United States entered World War II. He remained at home during the war, but corresponded with Louis Henkin, a former law clerk serving with American forces in Sicily. Henkin updated Hand on news from the front, while Hand updated Henkin on the politics and economics of the war effort at home. Hand was so mystified by the scale of American production at home that he called it “the most stupendous performance that ever has been done on the Planet.” At the same time, Hand wondered, “What a curious nonsense it is that a society will take its young men for death and mutilation at low wages during their most productive time.”
Once the Allied victory was assured, Hand began addressing the conduct of government and how it should deal with its new role on the international scene. Americans had a newfound moral righteousness, but he was disappointed with how it was being utilized. For example, in the Nuremburg Trials, Hand saw a sham of justice meant to satisfy a public “naturally eager for blood” as they “dress it up with noble words.” He judged the trials as “efforts to cloak vengeance in the robes of law,” and did not believe that “aggressive war” should be construed as a crime; if it were, the Allies would be as guilty as the Germans in many regards. He also thought the ultimate verdict of the “trials” — not subject to ordinary rules of evidence or due process — was predetermined. On the home front, Hand was dismayed at the growing influence of Senator Joseph McCarthy. To Hand, the Red Scare was “the humiliating acquiescence of our rulers in the indecencies of a demagogic bully.”
It is around this period that the role of the judiciary became one of Hand’s persistent focuses. This was the era of the Warren Court, which greatly expanded civil liberties, judicial power, and the scope of the federal government. Hand went so far as to say that the Supreme Court was becoming “not a court at all, but that third camera with the power of veto.”
The starkest example of Hand’s distrust of judicial activism came with his very vocal and public criticism of Brown v. Board of Education, the historic case that ended school segregation. Hand was not racist. Many of the letters in Reason and Imagination see Hand condemning miscegenation laws that forbid interracial marriage. In one letter, Hand described such laws as “the utterly disgusting conduct of the Southern ruffians.” What Hand took issue with was the Supreme Court deciding “political questions,” questions that weigh the pros and cons of certain policies which should be decided by elected officials. The judge’s role, on the other hand, is not to weigh policy matters, but to interpret whether the laws that Congress ultimately passes are constitutional. Even if a judge personally disagrees with the underlying policy of the law, if that law complies with the Constitution, it is not the judge’s place to strike it down. Hand explained, “Many is the time that I have declared valid a law I should never have voted to pass.”
Thus, for Brown to have been decided correctly under Hand’s theory of the judiciary, the court would have had to say that any segregation on the basis of race was unconstitutional. Instead, what the court in Brown said was that, in this particular case, the states’ justifications for racial segregation just were not good enough. The court was effectively weighing the legislative judgment in a particular case, rather than announcing a blanket Constitutional violation. So while Hand morally agreed with the ultimate decision that segregation in schools should be banned, he railed against the court’s method of reaching that decision.
Other judges and academicians have either embraced or critiqued judicial restraint as the sine qua non of constitutional theory. Don Franzen, the law editor of the Los Angeles Review of Books, recently reported how Judge Harvey Wilkinson III’s book, a Cosmic Constitutional Theory, critiques the spectrum of judges’ constitutional interpretative theories — from “living constitutionalism” (Ginsberg) at one end to “originalism” (Scalia) at the other — and concludes that every theory ultimately falls short when it comes to judicial restraint. The liberal leaning Hand could be classified as a “judicial restraint” purist just as surely as the conservative Wilkinson. Oddly this tilt might cause the liberal Hand to agree with the conservative Scalia as or more often than with his political soul mates on the left.
But the beauty of Reason and Imagination is that it illuminates what ultimately happened behind the scenes of Brown, revealing the signature open-mindedness that made Hand such a revered judge. While Frankfurter was deliberating Brown, he and Hand corresponded back and forth, arguing the merits of their respective positions. After much debate, Frankfurter ultimately convinced Hand that the Court came to the right decision. “Regrettable as I think the result, I did not see how, had I been called to vote, I could have failed to concur,” said Hand.
These letters between Frankfurter, a Supreme Court justice, and Hand, a personal friend who was not even a judge at this point, speak to the personal influences that surely must weigh on all Supreme Court justices but about which we rarely hear. Justice Ruth Bader Ginsburg has a daughter who is considered a leading authority on copyright law and teaches at Columbia Law School. Justice John Roberts has a lesbian cousin who sat in the audience during the recent arguments over same-sex marriage. Justice Clarence Thomas’s wife runs a conservative lobbyist group. These are the judges who shape the course of American history, and as the story of Frankfurter and Hand reveals, we cannot forget that ultimately they are people too, with family and friends they respect and with whom they surely discuss the issues before the court.
Hand himself never made it to the Supreme Court. His politics, not his legal insight, were the reason the position eluded him. Taft opposed Hand’s potential nominations at every opportunity, never forgetting Hand’s vocal opposition during his presidential campaigns.
The disappointment of not being nominated struck a chord with the surprisingly insecure Hand. But thanks to Jordan’s book, we see that Hand made peace with the decision (and even made wisecracks about it): “For years it was my greatest desire to be one of you,” Hand told Frankfurter in 1958. “And I am still uncertain whether my change of feeling may not have a Freudian ‘compensatory’ factor in it, (you know, the ‘fox and the grapes’ stuff), but I am sure that now at 86 I couldn’t possibly make the grade.”
In 1952, a publisher compiled a series of Hand’s papers and addresses and published them in a book called The Spirit of Liberty, an excellent supplement to Reason and Imagination. It contains more public documents such as the stirring title-address, “The Spirit of Liberty,” in which Hand asked a crowd gathered for a World War II rally in Central Park about the concept of liberty upon which the country was founded. “What then is the spirit of liberty?” His answer was this:
Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it […] The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the minds of other men and women; the spirit of liberty is the spirit which weighs their interest alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded.
His speech, delivered in 1944, is eloquent and impactful. It was quickly reprinted and distributed across the country.
“Reason” and “imagination” pervade Hand’s letters. If there is any fault in Jordan’s collection, it is that the more personal details of Hand’s life are left out. As one might expect from a collection edited by Hand’s devoted granddaughter, none of the letters in Reason and Imagination deal with Hand’s doubts about his marriage, such as his suspicions about his wife’s very close relationship to friend-of-the-family Louis Dow. In fact, there is only a single letter in Reason and Imagination from Learned Hand to his wife. That lone letter is a “long-winded harangue” (his words, not mine) touting equality of the sexes, which could be boiled down to one key phrase: “any single person should not count for more than any other.”
In truth, Hand was so insecure in his marriage that he wrote to a friend, “I don’t know if I can take this.” But one must turn to Gerald Gunther’s stellar companion biography Learned Hand: The Man and the Judge to read letters intimating these personal details. Gunther quotes another letter Hand wrote to his wife, in which he explains how he wanted to “correct” their separation, but doubted they could: “Can we? I wonder. Shall we? I think not.” Hand ultimately accepted the blame for his wife spending so much time with another man:
If I had been less ambitious for things that in the end don’t come to much I should have neglected less what would have satisfied you.
You realize what you wanted and w. another mate you could have had experiences to live upon till you died. But you got precious little out of me, but worries and anxieties about how I was to get along in the world […] I do believe I have come to see the right you have to follow your way, and I think I have learned not to trammel you as I did in the early years.
Another example of the personal gems one would miss by simply reading Reason and Imagination without other texts is that Hand was a close friend with celebrated author and recluse J.D. Salinger. Salinger admired Hand so much that he deemed him “a true Karma yogi.”
Which is not to say that Hand’s personality does not shine through in Reason and Imagination — quite the contrary. The book offers an unprecedented glimpse of the man behind the legend in a way that only a reprinting of verbatim letters can do, even if they are not, by and large, what we might call “personal.”
Hand’s opinions, letters, and personality are hard to track as decidedly conservative or decidedly liberal. Ultimately, the inability to cast Learned Hand as any one single character is part of what made him such a well-respected judge. Hand abhorred “absolutes.” “Truth,” as he understood it, was no more than opinion, and “opinions are at best provisional hypotheses, completely untested.” As a result, Hand valued “debate, discussion, and unsanctioned expression.” He understood that in order for democracy to flourish, it requires a body of law that evolves through interpretation. His courtroom had no room for absolutes, only an appreciation for analyzing the “uncertainty of human hypothesis.”
Reading Reason and Imagination is like digging into a box of chocolates. Pick any letter from the collection and you can enjoy it for its own sake as the elegant prose of a stirring legal scholar.