Hand, (Billings) Learned (1872–1961)

Few twentieth-century American jurists, if any at all, attained the high reputation for judicial wisdom that Learned Hand enjoyed at the height of his career. Certainly no other judge on the U.S. Supreme Court ever achieved the respect and prestige that attached to him. The greatest living American jurist, said Benjamin Cardozo in a famous remark, isn’t on the Supreme Court. In the view of Judge Charles E. Wyzanski, Learned Hand, at the end of his life, was universally acknowledged as the greatest living judge in the English-speaking world. Partly, no doubt, Hand’s stature derived from his majestic presence: his rugged features, his penetrating glance, and above all, his incredibly bushy eyebrows—he looked somehow like an olympian dispenser of justice. Among the general public, his celebrity owed something to his first name. (Learned was his mother’s maiden name and he used it as his own first name from his mid-twenties onward.) In the end, however, Learned Hand’s preeminence, particularly among lawyers, legal scholars, and fellow judges, rested on the legendary discernment, intellectual authority, and powerful eloquence of his judicial opinions.

Hand was born in Albany, New York, on January 27, 1872. His future career may have been predetermined by the fact that so many of his male relatives, including both his father and grandfather, were prominent attorneys. He was from his earliest days bookish, introspective, withdrawn, and socially insecure, and to some extent these traits would remain with him for the rest of his life. After receiving his preparatory education at Albany Academy, he entered Harvard College in 1889, a school still notable for its rigid student hierarchies. Hand was effectively excluded from the most aristocratic and prestigious social clubs, reinforcing his feelings of inferiority and habits of lonely studiousness. Like many other Harvard undergraduates, he fell under the spell of the brilliant triumvirate of the Philosophy Department, William James, Josiah Royce, and George Santayana. The encounter left him an agnostic, a confirmed skeptic regarding all received authority, and even more cerebral than before. He was briefly tempted by graduate work in philosophy, but surrendered to the wishes of his family and enrolled in the Harvard Law School in 1893. Hand was captivated by Harvard’s case-method approach to the study of law, and by the school’s erudite faculty. He graduated in 1896, only to quickly discover that he was far less enamored of the routine, day-to-day practice of law.

Nevertheless, he persevered. From 1897 until 1902, he practiced in Albany, but in 1902, engaged to be married and ambitious for a larger field, he moved to New York City. Legal work there proved no more stimulating than it had in Albany, and Hand sought fulfillment in other ways. He wrote some articles, including an attack, in the Harvard Law Review, on the Supreme Court’s lack of judicial restraint in the majority decision in Lochner v. New York (1905). His principal diversion, however, was his association with a group of progressive, reform-minded intellectuals and activists. Hand himself participated in some reform crusades and came to the attention of Charles Culp Bulingham, an eminent attorney and civic reformer who was influential in Republican circles. It was a warm endorsement from Burlingham that got Hand appointed a federal judge; in 1909, President William Howard Taft nominated Hand, who was still in his mid-thirties, to be a district judge in New York City, the start of more than five decades on the federal bench. Felix Frankfurter later remarked that it took the pedestrian members of the profession some time to make their adjustment to this new planet in the judicial sky. Becoming a judge did not dampen Hand’s enthusiasm for social reform. For the next ten years, he was an active member of a group of youthful intellectual reformers that included Herbert Croly, Walter Lippmann, Walter Weyl, and Frankfurter. They were enthusiastically loyal to the colorful former president, Theodore Roosevelt (Hand had first called Roosevelt’s attention to Croly’s influential book of 1909, The Promise of American Life), and Hand, although now a federal judge and appointed by Roosevelt’s rival for the White House, engaged actively with his friends in the campaign to elect Roosevelt in 1912. This group of progressives advocated government regulation of the trusts (rather than breaking them up) and greater federal power and involvement in the economic life of the nation. In 1914, they created the leading journal of progressive politics, the New Republic, and Learned Hand was intimately involved, writing articles and editorials for the magazine and participating in its editorial conferences.

After World War I, perhaps following the private advice of his idol and hero, Justice Oliver Wendell Holmes, Hand stepped back from his extrajudicial activities and devoted himself to his work as a judge. In 1924, President Calvin Coolidge appointed him to the Court of Appeals for the Second Circuit; he was to serve as chief judge from 1939 to his retirement in 1951. During his half-century as a judge, he handed down thousands of decisions, touching virtually every aspect of American law. His opinions were crafted with exquisite care and were often characterized by a noble and persuasive elegance. Despite his breaking new ground in several areas of the law, he was firmly committed to the philosophy of judicial restraint, the belief that judges must try to keep their personal views out of the decision-making process and interpret the law by giving fullest latitude to the intentions of the elected branches of government. This stance placed him in the company of such eminent twentiethcentury jurists as Holmes, Louis Brandeis, and Felix Franfurter; he rejected the judicial activism often associated with judges such as Earl Warren and William O. Douglas. In 1958, Hand gave his view of the importance of restraint typically lofty expression in his Holmes Lectures at Harvard, published as The Bill of Rights.

His most notable work in the area of civil liberties involved the much contested area of freedom of speech and the reach of the First Amendment. In the World War I case of Masses Publishing Co. v. Patten (1917), Hand ruled that the federal government acted wrongly in banning the radical antiwar magazine, The Masses, from the mails, despite the fact that the power to do so was granted by the Espionage Act of 1917. In his eloquent (and, given the fevered wartime circumstances, his courageous) opinion, Hand proposed an extremely broad definition of protected speech. If the actual words of a speaker or writer directly urged hearers or readers to violate the law, if the speaker incited illegality, the utterance fell outside of the protection of the First Amendment and the government could act against such speech. But, Hand insisted, any dissent that fell outside of this incitement test was not only protected speech and beyond the ability of the government to suppress but, even more, was a vital concomitant to a free society. Gerald Gunther, Hand’s finest biographer, has written that the Masses case compelled Hand to draw on his deepest personal resources of courage and independence and evoked the most important, pathbreaking opinion of his trial court tenure.

To Learned Hand’s great disappointment, his decision was overturned by the Court of Appeals, and two years later, in the famous Schenk v. United States (1919) case, the Supreme Court adopted Justice Holmes’s Clear and Present Danger Test, which Hand believed was too subjective, too dependent on guessing the probable outcome of a speech act, and too subject to the momentary and inflamed passions of the majority. Although Hand was able to persuade Holmes to partially liberalize his view (as in his dissent in the Abrams v. United States case of 1919), it was the more speech-restrictive Clear and Present Danger Test that prevailed in freedom of speech cases for the next five decades. Hand went to his grave thinking that his own incitement standard was decisively rejected. But, eight years after his death, the Supreme Court, in Brandenburg v. Ohio (1969), moved to a position very close to Hand’s view of 1917.

The precarious situation of civil liberties during the cold war forced Hand to negotiate between two of his most strongly held beliefs. On the one hand, as a resolute defender of American freedoms, Hand could hardly have approved of the assaults on those freedoms inherent in McCarthyism and other aspects of the anticommunist crusades of the 1950s. Hand responded to this crisis in civil liberties with a series of plainspoken statements, warning against the erosion of constitutional liberties. When he could, he used his position on the bench to protect basic rights, such as when, in United States v. Coplon (1950), he reversed the conviction of a spy, whose guilt was clear, because she had been arrested without a warrant and tried on the basis of improper wiretap evidence. Both his extrajudicial statements and some of his opinions made him subject to vehement denunciations, delivered in the passionate and fearful atmosphere of cold war America.

At the same time, however, Hand was also wedded to his philosophy of judicial restraint. Under that persuasion, he ruled to uphold the convictions of eleven Communist Party leaders in United States v. Dennis (1950). They had been found guilty, in a lower court, of violating the prohibition in the Smith Act of 1940 against advocating the violent overthrow of the U.S. government. In affirming the convictions, Hand understood his duty as applying Holmes’s Clear and Present Danger Test and not insisting on his own more speech-generous incitement test, which, he thought, had been definitively rejected by the Supreme Court back in 1919. Nevertheless, even while upholding the convictions, Hand’s careful opinion (later adopted by the majority on the Supreme Court) attempted to define the Holmes test in as speech friendly a way as he could. He did so by attempting to factor into the judgment the question of the gravity of the evil being advocated, contending that only a very grave evil could excuse the government from having to show that the speech act was likely to lead, soon and directly, to a breach of the law.

To the regret of many of his admirers, no president nominated Learned Hand to serve on the Supreme Court. Although his name was mentioned whenever there was a vacancy, he was a serious candidate only twice. In the 1920s, Chief Justice Taft, remembering Hand’s betrayal in the election of 1912 and wary of his liberalism, was able to forestall the nomination each time a seat came open; and in the early 1940s, Franklin Roosevelt, who admired the seventy-yearold Hand and who was pressed by Frankfurter and others to nominate him, desired to leave a more lasting impact on the Court and turned to younger men. Hand formally retired from active duty in 1951, but he continued to serve, sometimes carrying almost as full a judicial burden as ever. During the last years of his long life, he was held in such universal respect and esteem and was the subject of such unrestrained praise and honor, that even he must have had reason occasionally to question the appropriateness of his lifelong modesty and to wonder whether the nagging self-doubt that had always characterized and often plagued him, was entirely justified. He died, in New York City, on August 18, 1961.

DAVID W. LEVY

References and Further Reading

• Dilliard, Irving, ed. The Spirit of Liberty: Papers and Addresses of Learned Hand. New York: Alfred A. Knopf, 1952.
• Frankfurter, Felix, Judge Learned Hand, 60 Harvard Law Review (1947): 325–9.
• Griffith, Kathryn. Judge Learned Hand and the Role of the Federal Judiciary. Norman: University of Oklahoma Press, 1973.
• Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994.
• Hand, B. Learned. The Bill of Rights. Cambridge, MA: Harvard University Press, 1958.
• Wyzanski, Charles E., Jr. Introduction to The Bill of Rights, by Learned Hand. New York: Atheneum, 1964.

Cases and Statutes Cited

• Abrams v. United States, 250 U.S. 616 (1919)
• Brandenburg v. Ohio, 395 U.S. 444 (1965)
• Lochner v. New York, 198 U.S. 45 (1905)
• Masses Publish Co. v. Patten, 244 U.S. 535 (1917)
• Schenck v. United States, 249 U.S. 47 (1919)
• United States v. Coplon, 185 F.2d 629 (2d Cir. 1950)
• United States. v. Dennis, 183 F.2d 201 (2d Cir. 1950)

See also Brandenburg v. Ohio, 395 U.S. 444 (1969); Clear and Present Danger Test; COMMUNISM AND THE COLD WAR; Dennis v. United States, 341 U.S. 494 (1951); Freedom of Speech and Press: Nineteenth Century; Masses Publishing Company v. Patten, 244 U.S. 535 (1917)