Billings Learned Hand January 27, 1872 – August 18, 1961 was a United States judge and judicial philosopher. He served on the United States District Court for the Southern District of New York and later the United States Court of Appeals for the Second Circuit.
Hand has been quoted more often than any other lower-court judge by legal scholars and by the Supreme Court of the United States.
Scholars have recognized the Second Circuit under Hand as one of the finest appeals courts in the country’s history. Friends and admirers often lobbied for Hand’s promotion to the Supreme Court, but circumstances and his political past conspired against his appointment.
Hand possessed a gift for the English language, and his writings are admired as legal literature. He rose to fame outside the legal profession in 1944 during World War II after giving a short address in Central Park that struck a popular chord in its appeal for tolerance. During a period when a hysterical fear of subversion divided the nation, Hand was viewed as a liberal defender of civil liberties. A collection of Hand’s papers and addresses, published in 1952 as The Spirit of Liberty, sold well and won him new admirers. Even after he criticized the civil-rights activism of the 1950s Warren Court, Hand retained his popularity.
Hand is also remembered as a pioneer of modern approaches to statutory interpretation. His decisions in specialist fields, such as patents, torts, admiralty law, and antitrust law, set lasting standards for craftsmanship and clarity. On constitutional matters, he was both a political progressive and an advocate of judicial restraint. He believed in the protection of free speech and in bold legislation to address social and economic problems. He argued, however, that the United States Constitution does not empower courts to overrule the legislation of elected bodies, except in extreme circumstances. Instead, he advocated the “combination of toleration and imagination that to me is the epitome of all good government.”
Hand’s study of philosophy at Harvard left a lasting imprint on his thought. As a student, he lost his faith in God, and from that point on he became a skeptic. Hand’s view of the world has been identified as relativistic; in the words of scholar Kathryn Griffith, “[i]t was his devotion to a concept of relative values that prompted him to question opinions of the Supreme Court which appeared to place one value absolutely above the others, whether the value was that of individual freedom or equality or the protection of young people from obscene literature.” Hand instead sought objective standards in constitutional law, most famously in obscenity and civil liberties cases. He saw the Constitution and the law as compromises to resolve conflicting interests, possessing no moral force of their own. This denial that any divine or natural rights are embodied in the Constitution led Hand to a positivistic view of the Bill of Rights. In this approach, provisions of the Constitution, such as freedom of press, freedom of speech, and equal protection, should be interpreted through their wording and in the light of historical analysis rather than as “guides on concrete occasions.” For Hand, moral values were a product of their times and a matter of taste.
Hand’s civil instincts were at odds with the duty of a judge to stay aloof from politics. As a judge he respected even bad laws; as a member of society he felt free to question the decisions behind legislation. In his opinion, members of a democratic society should be involved in legislative decision-making. He therefore regarded toleration as a prerequisite of civil liberty. In practice, this even meant that those who wish to promote ideas repugnant to the majority should be free to do so, within broad limits.
Hand’s skepticism extended to his political philosophy: he once described himself as “a conservative among liberals, and a liberal among conservatives.” As early as 1898, he rejected his family’s Jeffersonian Democratic tradition. His thoughts on liberty, collected in The Spirit of Liberty (1952), began by recalling the political philosophies of Thomas Jefferson and Alexander Hamilton. Jefferson believed that each individual has a right to freedom, and that government, though necessary, threatens that freedom. In contrast, Hamilton argued that freedom depends on government: too much freedom leads to anarchy and the tyranny of the mob. Hand, who believed, following Thomas Hobbes, that the rule of law is the only alternative to the rule of brutality, leaned towards Hamilton. Since the freedom granted to the American pioneers was no longer feasible, he accepted that individual liberty should be moderated by society’s norms. He nevertheless saw the liberty to create and to choose as vital to peoples’ humanity and entitled to legal protection. He assumed the goal of human beings to be the “good life”, defined as each individual chooses.
Between 1910 and 1916, Hand tried to translate his political philosophy into political action. Having read Croly’s The Promise of American Life and its anti-Jeffersonian plea for government intervention in economic and social issues, he joined the Progressive Party. However, he discovered that party politicking was incompatible not only with his role as a judge but with his philosophical objectivity. The pragmatic philosophy Hand had imbibed from William James at Harvard required each issue to be individually judged on its merits, without partiality. In contrast, political action required partisanship and a choice between values. After 1916, Hand preferred to retreat from party politics into a detached skepticism. His belief in central planning resurfaced during the 1930s in his growing approval of Franklin D. Roosevelt‘s New Deal, as he once again—though this time as an observer—endorsed a program of government intervention. Hand was also an interventionist on foreign policy, supporting U.S. involvement in both world wars, and disdained isolationism.
Hand has been called one of the United States’ most significant judicial philosophers. A leading advocate of judicial restraint, he took seriously Alexander Hamilton‘s formulation that “the judiciary … may truly be said to have neither force nor will, but merely judgement.” Any judicial ruling that had the effect of legislating from the bench troubled Hand. In 1908, in his article “Due Process of Law and the Eight-Hour Day”, he attacked the 1905 Supreme Court ruling in Lochner v. New York, which had struck down a law prohibiting bakery staff from working more than ten hours a day. The Supreme Court went on to strike down a series of similar worker-protective laws on the grounds that they restricted freedom of contract. Hand regarded this principle as undemocratic. “For the state to intervene”, he argued, “to make more just and equal the relative strategic advantages of the two parties to the contract, of whom one is under the pressure of absolute want, while the other is not, is as proper a legislative function as that it should neutralize the relative advantages arising from fraudulent cunning or from superior force.”
The issue concerned Hand again during the New Deal period, when the Supreme Court repeatedly overturned or blocked Franklin D. Roosevelt’s legislation. As an instinctive democrat, Hand was appalled that an elected government should have its laws struck down in this way. He viewed it as a judicial “usurpation” for the Supreme Court to assume the role of a third chamber in these cases. As far as he was concerned, the Constitution already provided a full set of checks and balances on legislation. Nevertheless, Hand did not hesitate to condemn Roosevelt’s frustrated attempt to pack the Supreme Court in 1937, which led commentators to warn of totalitarianism. The answer, for Hand, lay in the separation of powers: courts should be independent and act on the legislation of elected governments.
Hand’s democratic respect for legislation meant that he hardly ever struck down a law. Whenever his decisions went against the government, he based them only on the boundaries of law in particular cases. He adhered to the doctrine of presumptive validity, which assumes that legislators know what they are doing when they pass a law. Even when a law was uncongenial to him, or when it seemed contradictory, Hand set himself to interpret the legislative intent. Sometimes, however, he was obliged to draw the line between federal and state laws, as in United States v. Schechter Poultry. In this important case, he ruled that a New Deal law on working conditions did not apply to a New York poultry firm that conducted its business only within the state. Hand wrote in his opinion: “It is always a serious thing to declare any act of Congress unconstitutional, and especially in a case where it is part of a comprehensive plan for the rehabilitation of the nation as a whole. With the wisdom of that plan we have nothing whatever to do …” Hand also occasionally went against the government in the area of free speech. He believed that courts should protect the right to free speech even against the majority will. In Hand’s view, judges must remain detached at times when public opinion is hostile to minorities and governments issue laws to repress those minorities. Hand was the first judge to rule on a case arising from the Espionage Act of 1917, which sought to silence opposition to the war effort. In his decision on Masses Publishing Co. v. Patten, he defined his position on political incitement:
Detestation of existing policies is easily transformed into forcible resistance of the authority which puts them in execution, and it would be folly to disregard the causal relation between the two. Yet to assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard for free government. The distinction is not scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.
In the case of United States v. Dennis in 1950, Hand made a ruling that appeared to contradict his Masses decision. By then, a series of precedents had intervened, often based on Oliver Wendell Holmes’s “clear and present danger” test, leaving him less room for maneuver. Hand felt he had “no choice” but to agree that threats against the government by a group of Communists were illegal under the repressive Smith Act of 1940. In order to do so, he interpreted the “clear and present danger” in a new way. “In each case,” he wrote, “[courts] must ask whether the gravity of the ‘evil’, discounted by its improbability, justifies such invasion of free speech as is necessary to avoid the danger.” This formula allowed more scope for curbing free speech in cases where, as the government believed with Communism, the danger was grave, whether it was immediate or not. Critics and disappointed liberals accused Hand of placing his concern for judicial restraint ahead of freedom of speech. Hand confided to a friend that, if it had been up to him, he would “never have prosecuted those birds.”
In the opinion of Kathryn Griffith, “The importance of Learned Hand’s philosophy in terms of practical application to the courts lies generally in his view of the pragmatic origin of all law, but most specifically in his unique interpretation of the Bill of Rights.” Hand proposed that the Bill of Rights was not law at all but a set of “admonitory” principles to ensure the fair exercise of constitutional powers. He therefore opposed the use of its “due process of law” clauses as a pretext for national intervention in state legislation. He even advocated the removal of those clauses from the Constitution. In Hand’s analysis, “due process” is no more than a stock phrase to cover a long tradition of common law procedure. He contended that the term had inflated in scope beyond the meaning intended in the Bill of Rights. The result was the misuse of due process to invade rights that the Constitution was designed to protect. For Hand, a law passed by an elected body should be presumed to meet the test of due process. A court that decides otherwise and strikes down such a law is acting undemocratically. Hand maintained this stance even when the Supreme Court struck down anti-liberal laws that he detested. His reasoning has never been widely accepted. Critics of his position included his colleague on the Second Circuit, Jerome Frank, who wrote: “[I]t seems to me that here, most uncharacteristically, Judge Hand indulges in a judgement far too sweeping, one which rests on a too-sharp either-or, all or nothing, dichotomy. … Obviously the courts cannot do the whole job. But just as obviously, they can sometimes help to arrest evil popular trends at their inception.”
Richard Posner, an influential appellate judge reviewing a biography of Hand, asserts that Hand “displayed a positive antipathy toward constitutional law. To exaggerate only a little, he didn’t think judges should have anything to do with it.” Posner suggests that although Hand is remembered today as one of the three greatest judges in American history, his status as a truly “great judge” was not based on his “slight” contributions to First Amendment jurisprudence or other fields of constitutional law, but rather on his decisions in other areas such as antitrust, intellectual property, and tort law.
Learned Hand wrote approximately four thousand judicial opinions during his career. Admired for their clarity and analytic precision, they have been quoted more often in Supreme Court opinions and by legal scholars than those of any other lower-court judge.Hand’s dissent in United States v. Kennerley and his ruling in United States v. Levine have often been cited in obscenity cases. Hand’s view that literary works should be judged as a whole and in relation to their intended readership is now accepted in American law. His use of historical data to gauge legislative intent has become a widespread practice. According to Archibald Cox: “The opinions of Judge Hand have had significant influence both in breaking down the restrictions imposed by the dry literalism of conservative tradition and in showing how to use with sympathetic understanding the information afforded by the legislative and administrative processes.” Hand’s decision in the 1917 Masses case influenced Zechariah Chafee‘s widely read book, Freedom of Speech (1920). In his dedication, Chafee wrote, “[Hand] during the turmoil of war courageously maintained the traditions of English-speaking freedom and gave it new clearness and strength for the wiser years to come.”
Learned Hand played a key role in the interpretation of new federal crime laws in the period following the passing of the U.S. Criminal Code in 1909. In a series of judicial opinions and speeches, he opposed excessive concern for criminal defendants, and wrote “Our dangers do not lie in too little tenderness to the accused. Our procedure has always been haunted by the ghost of the innocent man convicted. … What we need to fear is the archaic formalism and watery sentiment that obstructs, delays and defeats the prosecution of crime.” He insisted that harmless trial errors should not automatically lead to a reversal on appeal. Hand balanced these views with important decisions to protect a defendant’s constitutional rights concerning unreasonable searches, forced confessions and cumulative sentences.
His opinions have also proved lasting in fields of commercial law. Law students studying torts often encounter Hand’s 1947 decision for United States v. Carroll Towing Co., which gave a formula for determining liability in cases of negligence. Hand’s interpretations of complex Internal Revenue Codes, which he called “a thicket of verbiage”, have been used as guides in the gray area between individual and corporate taxes. In an opinion sometimes seen as condoning tax avoidance, Hand stated in 1947 that “there is nothing sinister in so arranging one’s affairs as to keep taxes as low as possible.” He was referring to reporting of individual income through corporate tax forms for legitimate business reasons. In tax decisions, as in all statutory cases, Hand studied the intent of the original legislation. His opinions became a valuable guide to tax administrators. Hand’s landmark decision in United States v. Aluminum Company of America in 1945 influenced the development of antitrust law. His decisions in patent, copyright, and admiralty cases have contributed to the development of law in those fields.
Hand was also a founding member of the American Law Institute, where he helped develop the influential Restatements of the Law serving as models for refining and improving state codes in various fields. One American Law Institute recommendation was to decriminalize sexual conduct such as adultery and homosexuality, for which reason the July–August 1955 issue of the Mattachine Society Review, the magazine of the country’s first nation-wide homosexual organization, published a salute to Judge Hand featuring his photograph on the cover.
After Hand’s lectures and publications became widely known, his influence reached courts throughout the country. On the occasion of his 75th birthday on January 27, 1947, The Washington Post reported: “He has won recognition as a judges’ judge. His opinions command respect wherever our law extends, not because of his standing in the judicial hierarchy, but because of the clarity of thought and the cogency of reasoning that shape them.”
To the wider public, who knew little of his legal work, Hand was by then a folk hero. Social scientist Marvin Schick has pointed out that this mythic status is a paradox. Because Hand never served on the Supreme Court, the majority of his cases were routine and his judgments rooted in precedent. On Hand’s retirement in 1951, Felix Frankfurter predicted that his “actual decisions will be all deader than the Dodo before long, as at least many of them are already.” Working for a lower court, however, saved Hand from the taint of political influence that often hung over the Supreme Court. Hand’s eloquence as a writer played a larger part in the spread of his influence than the substance of his decisions; and Schick believes that the Hand myth brushes over contradictions in his legal philosophy. Hand’s reputation as a libertarian obscures the fact that he was cautious as a judge. Though a liberal, he argued for judicial restraint in interpreting the Constitution, and regarded the advancement of civil liberties as a task for the legislature, not the courts. In his 1958 Holmes Lectures, for example, he voiced doubts about the constitutionality of the Warren Court‘s civil rights rulings. This philosophy of judicial restraint failed to influence the decisions of the Supreme Court during Hand’s lifetime and afterwards.
Finally, in an essay called Origin of a Hero discussing his novel the Rector of Justin, author Louis Auchincloss says the main character was not based on a headmaster; certainly not as was often speculated Groton’s famous Endicott Peabody. “If you want to disguise a real life character,” Auchincloss advised fellow novelists, “just change his profession.” His actual model for the Rector of Justin was “the greatest man it has been my good luck to know–” Judge Learned Hand.