Saturday, January 27, 2007

The Mind of Hand


"[A] judge is . . . pulled by two opposite forces. On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words but by trying honestly to say what was the underlying purpose expressed. Nobody does this exactly right; great judges do it better than the rest of us. It is necessary that someone shall do it, if we are to realize the hope that we can collectively rule ourselves." -- Learned Hand.

U.S. federal judge Learned Hand was born on this day in 1872 in Albany, New York.

Hand served a record 52 years as a federal judge, and although he was never appointed to the U.S. Supreme Court, he is generally considered to have been among the greatest American judges of the 20th century, combining a profound, skeptical mind with a deliberate, succinct writing style and a wide breadth of reading and allusion, peppering his opinions with illustrations from such diverse sources as Plato, Shakespeare, Cervantes and Joel Chandler Harris.

Hand studied philosophy (under William James and George Santayana) and law at Harvard, and began the practice of law in Albany in 1897. After moving to New York City, President Taft appointed Hand to the federal district court for New York in 1909, and President Coolidge elevated him to the U.S. Court of Appeals (2nd Circuit) in 1924.

In 1945, Hand rendered the final decision in the lengthy Alcoa antitrust case after several Supreme Court justices disqualified themselves, ruling that evidence of greed was not necessary to prove a violation under the Sherman Act ("Congress did not condone 'good monopolies' and condemn 'bad ones'; it forbade all."). At times seemingly liberal (he upheld the lower court ruling that James Joyce's Ulysses was not obscene), he also upheld the convictions of several Communist leaders under the Smith Act for conspiracy to overthrow the government -- evidencing his ongoing, evolving concern with distinguishing between the proper exercises of government power from unreasonable restraints in the name of public welfare.

Hand firmly believed in the importance of judges knowing the great works of history, philosophy and literature, because in constitutional matters "everything turns upon the spirit in which [a judge] approaches the questions before him," and he felt that the words of laws were "empty vessels" without a judge's ability to draw upon his reading to fill them.

It is said that as Chief Justice, Taft kept Hand off of the Supreme Court for a number of years due to Hand's support of Theodore Roosevelt's "Bull Moose" presidential candidacy against Taft in 1912. A persistent legend (perhaps apocraphyl) holds that President Hoover intended to appoint Hand to the U.S. Supreme Court, but that he offered the vacancy to Charles Evans Hughes out of political necessity, fully expecting Hughes to reject the offer since Hughes' son would have to resign as Solicitor General if Hughes were on the Court; according to the legend, Hughes astonished everyone by accepting Hoover's offer, and Hand remained the greatest judge never to be elevated to the Supreme Court. Hand died on August 18, 1961 in New York City.

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