Robert H. Jackson on Learned and Augustus Hand:
Justice Robert Jackson and Judge Learned Hand are probably my two favorite judges, so I was particularly interested to see that Justice Jackson once gave a speech in 1951 on what made Learned Hand and his cousin Augustus Hand so outstanding. From the speech:
Thanks to reader Constitutional Crisis for the link.
I think that their attitude to the law and to the judicial office has been much more important than any cases they have decided or any opinions they have written. These men love the law. They were bred in that family tradition in Upstate New York, a geographical fact that I do not think should be held against them. Love of the law led them to Harvard — another thing I would not hold against them. But Harvard did not make the Hands. It is men like the Hands who have made Harvard. They believed in the law. That does not mean that they thought everything that happened to be law is right or enduring. They have not regarded it as a closed body of learning. But they believed in the law as the foundation of the whole structure of an ordered and free society.Good stuff. Of course, if Justice Jackson had blogged these thoughts today, he would have triggered a 150-comment thread questioning what he really meant about judges being like umpires, and whether that was really any sort of "test."
These men found their highest satisfaction in judicial work. It fulfilled their every ambition. They put all they had into it — they have not shirked even its drudgery. They wrote their opinions with no appeal for applause and sought only to merit the ultimate approval of their profession. They have not been looking over their shoulders to see whom they please. They have represented an independent and intellectually honest judiciary at its best. And the test of an independent judiciary is a simple one — the one you would apply in choosing an umpire for a baseball game. What do you ask of him? You do not ask that he shall never make a mistake or always agree with you, or always support the home team. You want an umpire who calls them as he sees them. And that is what the profession has admired in the Hands.
Thanks to reader Constitutional Crisis for the link.
With Minor Wisdom being a close second.
I think that's right.
I'm curious: What do you think of the Judges Hand? Do you disagree with Justice Jackson?
Purely as an academic exercise, WWJD (What Would Jackson Do) on Boumedine, any thoughts? Personally, I think he would have been loathe to here the case (see Korematsu), but if his colleagues felt so moved I think he would have given Habeas rights and ventured in to what process should be provided. Of course then again, he seemed rather sympathetic to the governments actions when the political branches were singing together (see Chicago Southern Airlines). Thus, I don't have an answer to my own question, but that is nothing new . . . lol
As an Australian, don't really know much about the Hands - though I've read a little bit of Learned's more famous works of course. I'll relate my comments specifically to him.
My criticism is in relation to the quoted text rather than the judges. In relation to the value attributed to Learned's decisions, one would think that that has more to do with the convincing arguments behind them.
If we are to judge Learned by his decisions, then it seems that this is best done by attributing to him a high capacity for legal or policy decision making - higher than other judges whose judgements are held in less esteem.
But to go on and say also that Learned's ability to write good judgements was because, as compared to other judges, he 'loved the law' more or was more of an 'umpire' or was especially independent etc. is to attribute special virtues above those necessary to explain the strength of the opinions.
In Australia, and I'll wager in the US, most competent judges tend to be indistinguishably independent and impartial. Further, though I can't look into the minds of judges, you would think that the years of commitment and high quality work at the Bar required to be considered for the Bench would mean that they would have some affection for the law as an institution.
Therefore, when you say that a judge is independent/impartial/loved the law, you really say little about his relative merit amongst his peers, or why he might have distinguished himself as against them. In fact those words might be well used to tactfully describe a 'lesser' judge whose works are not held in particularly high esteem.
At the end of the day, if I were to give a speech that accurately described why Learned Hand was great, without having to provide the sort of redundant flourishes that are often used in such speeches, but that add nothing substantial to our characterisation of a judge, I would say:
"Learned Hand. Opinions generally held in high esteem. Cited often and opinions are foundational on certain areas of law. Probably because he wrote particularly strong judgements. Probably because he was smarter and/or worked harder then you're average judge."
NatSec's question about WWJJD is interesting, but I'm less optimistic -- he could get spooked, and I don't recall any ringing dissents from him in Quirin, one of the least-proud moments in 20th-century jurisprudence. See also "Constitution, suicide pact, not a" -- which has become one of the most helpful guides as to when one can safely disregard an opponent's argument.
Some people become lawyers or judges because they want to make money, or want to exercise control over others, or want to be respected. Some do it because they love the law and what it means for society.
I am reminded of the story of two stone masons at Chartres during the Middle Ages who were asked what they were doing. One replied that he was setting stones. The other said that he was building a cathedral. Learned Hand believed he was building a cathedral.
Couple was dating. BF asks GF, "Why are all these opinions written by Learned Hand? What's that?"
GF replies, "You know, it's a name judges use when they want to disavow their opinions, or keep the name of the writer secret. It's like Alan Smithee in Hollywood."
BF, "Ohhh... Wow, I didn't know that."
Next day, BF attempts to argue this point in class. Things go very poorly for his. Learns the difference between snark and sincerity. Also finds the picture of Learned Hand in the casebook two days later.
Brilliant insight! I'm so glad you told me that. I would never have guessed it on my own.
adding further reference to Learned Hand.
I would argue that culture, morality, and healthy "intermediate associations" (private organizations that stand between the indivual and the state) are at least equally important foundations.
As Robert Bork put it, "It takes more than legalisms, abstractions, and judicial diktats to hold a community together." (Slouching Towards Gomorrah, chapter 16)
Judge Hand would certainly agree with that. Recall his famous address on the Spirit of Liberty:
On the subject of the Judges Hand and good writing, here's Judge Gus Hand's letter of thanks to Jackson, penned (on “Judge Learned Hand’s Chambers” stationery -- !) the day after the dinner:
"Dear Mr. Justice
I can swallow as much
fulsome eulogy as anyone, and
like it; but I can’t let pass without
especial thanks the your note of – what
shall I say? – antisepsis which
redeemed last night from the
danger of infectious fermentation.
And when this morning I told
my wife of your admonition:
“Quote L.H. and but follow A.N.H.”, her
pleasure was manifest. Not
that the poor wretch is given
to quoting her spouse – there
is enough of that in the house
from the opposite end of the
table anyway – but the justice
of the second part of the dictum
has long been apparent to her
and her welcome of its more
general recognition was
touching to observe.
It was most kind of you
to come in and speak; and
you were particularly happy – even
for you – in the deft way you
saved the occasion.
Sincerely yours,
Augustus N Hand"