HAND, BILLINGS LEARNED

Learned Hand served as a U.S. district court judge from 1909 to 1924 and on the U.S. Circuit Court of Appeals from 1924 to 1951. Although he was a great and respected legal figure, he was never appointed to the U.S. Supreme Court.

Hand cannot be classified as a liberal or conservative because he did not allow his personal biases to affect his judicial positions. He was careful to base his decisions on public policy and laws as he understood them, and he did not believe it was the court's job to create public policy. To Hand's way of thinking, human values are relative. Although one value—such as protecting young people from obscenity—may prevail in a certain case, it might not prevail in another. And he felt that the role of court decisions should be to provide realistic guidelines on which to base future decisions.

Hand was born January 27, 1872, in Albany, New York. His was a distinguished family, with both his grandfather and his father being lawyers and Democrats. He was an only child, and his father died when he was fourteen. Hand attended private schools and graduated with honors and a degree in philosophy from Harvard in 1893. He graduated from Harvard Law School with honors in 1896. A year later he began practicing law in the state of New York.

In 1902 Hand married Frances A. Fincke and moved to New York City. Although successful, he found law practice to be boring. In 1909 newly elected president william howard taft appointed Hand to a federal judgeship. At age thirty-seven, Hand was one of the youngest appointees ever. He served the court for 15 years.

A few years after his appointment, Hand supported theodore roosevelt's Bull Moose party presidential candidacy against Taft and became the Progressive party's candidate for chief judge of the New York Court of Appeals. He undertook this first and last political venture of his career because of a concern that big business would control the nation. Whatever Hand's reasons, Taft never forgot Hand's "disloyalty," and many believe that this act cost Hand his first chance to serve on the Supreme Court in 1922. Taft, who was then the chief justice of the U.S. Supreme Court, urged President warren g. harding not to nominate Hand.

Throughout his career, Hand chose to follow his conscience while knowing he would forfeit promotions as a result. For example, in 1917 Hand decided Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917), rev'd 246 F. 24 (2d Cir. 1917). Masses was the first test of a new law, the espionage act of 1917 (Act of June 15, 1917, ch. 30, 40 Stat. 217). This act outlawed making "false statements with intent to interfere with the operation or success of the military or naval forces … when the United States is at war." It also allowed the U.S. mail to ban materials containing such statements. Editors of an antiwar magazine, The Masses, took the New York City postmaster, Thomas G. Patten, to court for refusing to distribute the magazine. Patten argued that the Espionage Act allowed him to ban the publication.

The Masses case came before the Second District at the beginning of world war i, when the government viewed criticism of the war as a threat to national security. It came also when

Hand was being considered for appointment to the Second Circuit Court of Appeals.

At that time, the legality of written or spoken words was usually judged by the probable result of the words—that is, if the words had the tendency to produce unlawful conduct, then they could be banned. Hand took a different approach: his solution focused on the words themselves, rather than on a guess at the public's reaction to them. He invented what became known as the incitement test: if the words told someone to break the law, if they instructed the person that it was a duty or interest to do so,

then they could be banned. The Masses magazine praised conscientious objectors and antiwar demonstrators, but it never actually told readers they should behave similarly. For this reason, Hand ruled that the postmaster could not ban the magazine.

Masses was just one of the many opinions Hand wrote that decided issues for which no precedent existed at the Supreme Court level. It is an early example of Hand's strong opinions about free speech—that it should be protected and defined as a critical ingredient to democracy. He struggled for the rest of his career to convince his colleagues of the importance and complexity of issues relating to the first amendment to the U.S. Constitution.

Hand correctly predicted the consequences of his decision in Masses before he announced it. The decision was immediately appealed and reversed by the Second Circuit Court of Appeals, and he did not receive the appointment to that court. But over time the climate of the country and the courts would change, and in the late 1960s, the Supreme Court would adopt Hand's incitement test as the standard for evaluating whether speech threatened security.

In 1924 Hand was appointed to the U.S. Circuit Court of Appeals for the Second Circuit. On the court, Hand served with many famous judges, including conservative judge Thomas Walter Swan, Hand's first cousin Augustus Noble Hand, Harrie Brigham Chase, Charles Edward Clark, and jerome n. frank.

With his cousin and Swan, Hand made many widely respected decisions. Some observers credit the craftsmanship of these decisions to the use of preconference memos, which were unique to the Second Circuit at that time. Under this method, each judge reviewed each case and drafted a tentative opinion without consulting the others. Only after each judge had reached an independent conclusion did all the conferring judges exchange memos and meet to discuss the case. This process encouraged more diverse and thorough thinking than with the usual method of approaching cases, in which one judge took the lead early on and drafted a single opinion.

As a circuit court judge, Hand was limited to applying precedents of the Supreme Court and federal statutes in appeals before his court. He felt responsible to the precedents, and once he was sure he understood the basic reason for a law, he stood his ground despite any negative effects the decision might cause.

Hand was again considered for the Supreme Court in 1931, this time by President herbert hoover. But Hoover felt obliged to offer the position to charles evans hughes first, with the intention of appointing Hand when Hughes refused. To Hoover's surprise, Hughes accepted.

Hand became senior circuit judge of the circuit court in 1939 when his predecessor, Martin T. Manton, was indicted and eventually imprisoned for accepting bribes. Nine years later, the office of "senior circuit judge" was renamed the office of "chief judge," pursuant to a revision in the federal judicial code. See Act of June 25, 1948, ch. 646, S 46(c), 62 Stat. 869, 871 (1948), codified as amended at 28 U.S.C. S 46(c) (1988). This was the highest position that Hand was to hold in the courts.

Hand's final close call with the Supreme Court came in 1942, when franklin d. roosevelt was seeking a replacement for Justice James F. Byrnes, whom he had appointed to a cabinet position. Hand was in the running, and his colleagues organized a strong campaign to persuade the president to choose him. However, in January 1943—the month that Hand turned seventy-one—Roosevelt appointed wiley b. rutledge, of Iowa: Rutledge was only forty-eight years old, and Roosevelt had insisted in 1937 that justices should not serve past age seventy. Ironically, Rutledge died in 1949, whereas Hand was still active and productive for another twelve years.

Hand influenced the Supreme Court profoundly, though he did not serve on it. He was quoted in Supreme Court opinions and widely cited in legal journals. Even during his lifetime, he was widely regarded as one of the greatest judges in the English-speaking world.

In 1944 Hand delivered a public speech that brought his thinking to the attention of people in nonlegal circles. His address, "The Spirit of Liberty," was delivered in New York's Central Park to more than 1 million people. The New Yorker, the New York Times, Life, and Reader's Digest all reprinted portions of his address. Hand also publicly denounced McCarthyism during an address in Albany in 1952.

"If we are to keep our democracy, there must be one commandment: Thou shalt not ration justice."
—Billings Learned Hand

Hand served on the council of the American Law Institute, a group of law professors, judges, and lawyers who organize and summarize the law in publications called the "Restatements of the Law" and "Model Codes," two bodies of legal authority designed to provide a clear, practiceoriented exposition of legal rules, precedents, and principles.

When Hand retired from the Second Circuit in 1951, he had served as a federal judge longer than anyone else in U.S. history. During his career he had written almost three thousand legal opinions. They are famous for their careful construction and sharp understanding of all forces at work. He showed an ability to clarify legal concepts, even those in specialized areas such as admiralty (shipping) law, patent law, and immigration law.

After he retired, Hand still sat on the federal bench, wrote opinions, and handled a nearly full workload. Toward the end of his life, he complained to a friend that he was only writing 20 to 25 opinions a month, instead of his customary 50 to 60. The Spirit of Liberty, a collection of his papers and speeches originally published in 1952 had a third edition in 1960, while his 1958 oliver wendell holmes Lectures at Harvard were published as The Bill of Rights (1958).

Hand died of a heart attack in New York City on August 18, 1961, after more than 50 years of service on the federal bench.

further readings

Griffith, Kathryn P. 1983. Judge Learned Hand and the Role of the Federal Judiciary. Norman, Okla.: Univ. of Oklahoma Press.

Gunther, Gerald. 1994. Learned Hand: The Man and the Judge. New York: Knopf.

Hagemann, John F. 1995. "The Judge's Judge." South Dakota Law Review 40.

Schick, Marvin. 1970. Learned Hand's Court. Baltimore: Johns Hopkins Press.

Thomson, James A. 1995. "Learned Hand: Evaluating a Federal Judge." Northern Kentucky Law Review 22.

cross-references

Criminal Law.

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