Hand, Billings Learned

Hand, Billings Learned (b. Albany, N.Y., 27 Jan. 1872; d. New York, N.Y., 18 Aug. 1961), federal judge, 1939–1951. Learned Hand enjoyed one of the longest tenures on the federal bench of any judge in the twentieth century. President William Howard Taft, seeking to improve the federal bench, appointed Hand to the district court in New York in 1909 upon the recommendation of Charles Burlingham. In 1924 Calvin Coolidge elevated Hand to the Court of Appeals for the Second Circuit; Hand served as chief judge of that until his nominal retirement in 1951, but he continued to carry a heavy load as a senior judge until his death.

Twice Hand came close to appointment to the Supreme Court. In the 1920s he was considered for every vacancy on the high court, but then Chief Justice William Howard Taft, still bitter at Hand's having backed Theodore Roosevelt's Bull Moose ticket in 1912, blocked his appointment. Then in the early 1940s Felix Frankfurter lobbied incessantly to have Hand appointed, but Franklin D. Roosevelt wanted younger men and he also resented Frankfurter's heavyhanded tactics.

Hand's reputation lies less in constitutional law, since at that time relatively few constitutional cases came before the Second Circuit, than in private law and statutory interpretation, in which he set high standards for clarity of expression and judicial craftsmanship. Yet his voice was also important in the ongoing debate over judicial activism and the expansion of constitutional liberties.

Like his good friend Frankfurter, Hand believed that judges had a limited role to play, a philosophy that, like Frankfurter, he derived from his studies with James Bradley Thayer at the Harvard Law School, from which he graduated in 1896. He would later claim that Thayer and others had taught him the highest satisfaction a lawyer or a judge could derive came from knowing a job had been done in a craftsmanlike manner. Hand did not see judicial restraint as an abdication of responsibility, or as an intellectually sterile enterprise. In his view, within modest parameters judges had important work to do, exploring the underlying questions of law and creating legal rules appropriate to the times. Larger questions of policy, however, should be left to the elected branches (see Judicial Self‐Restraint).

Hand constantly expressed his dissatisfaction with the activist wing of the Court headed by Hugo Black and William O. Douglas, and in the Holmes lectures at Harvard in 1958 he questioned the propriety of judges enlarging the meaning of the Bill of Rights. Years earlier he had attacked the majority decision in Lochner v. New York (1905) for imposing conservative personal values in place of legislative wishes, and he now applied that same reasoning to the Warren Court. Like Frankfurter, Hand believed that the extent of Bill of Rights protection, as well as its enforceability, should be left to the legislature.

Hand believed strongly in free speech, and in 1917 handed down a highly controversial opinion in Masses Publishing Co. v. Patten, in which he argued that the First Amendment protected all speech short of direct incitement to illegal action. When the Supreme Court issued its first rulings in the wartime speech cases, Holmes's clear and present danger test in Schenck v. United States (1919) fell far short of Hand's standard. Hand criticized the Holmes test as too vague and assumed that the Court had implicitly rejected the Masses criterion.

This explains why, despite his lifelong commitment to free speech, Hand confirmed the conviction of eleven communist leaders in United States v. qDennis (1950), a case in which the clear and present danger test was watered down to allow the government to prosecute people for conspiring to teach the overthrow of the government, a far cry from the Masses test. But Hand in this case was carrying out what he saw as his role as a judge—adherence to precedent and deference to the elected branches of government; privately he still adhered to the Masses test. Eventually, the Supreme Court moved away from Schenck and Dennis, and in Brandenburg v. Ohio (1969) adopted what many commentators believe was essentially Hand's approach.

Bibliography

Kathryn Griffith , Judge Learned Hand and the Role of the Federal Judiciary (1973).
Gerald Gunther , Learned Hand: The Man and the Judge (1994).

Melvin I. Urofsky