(p. ix ) Foreword To Second Edition

Gerald Gunther, preeminent constitutional law scholar, was my great teacher, sage adviser, treasured friend, and author of the magnificent judicial biography portraying the life, times, and work of Learned Hand. When Gunther’s beloved partner in life, his wife Barbara, asked if I would write a foreword for the second edition of the Hand biography, I just said “yes.” My dear colleague, David Souter, captured the reason why: “[T]he book is much more even than a great biography, in the way it gives good counsel to judges of all times and places.”¹ Justice Souter added that “if [he] had the power, [he] would see to it that no judge in America entered office without reading [Gunther’s] life of Hand.”² I concur, and would include the book on a recommended reading list for jurists the world over.

For more than two decades, with help from dozens of his devoted students, Gunther patiently combed hundreds of Hand’s published writings, thousands of his opinions and memoranda, and tens of thousands of pieces of his correspondence spanning more than three quarters of a century. He also pored over writings on political and social issues marking the era in which Hand lived. Over 2,300 footnotes attest to the thoroughness and care of Gunther’s research. From the massive source material and his own insight, Gunther built an elegant narrative of Hand’s work and days. With “no shortcuts [or] stretches,”³ Gunther assembled into a coherent whole the story of an icon who was also a very mortal man. The biography brings vibrantly to light the public and private Hand—his towering intellect; his speech, eloquent to suit the occasion, salty when he was in a mood to amuse; his judicial philosophy and his integrity; his anxieties and self-doubts. In the end, the reader is left with the distinct sense that Gunther may have known Hand better than Hand knew himself.

The book is a masterpiece as well for a dimension emphasized by Gunther’s classmate at Harvard Law School, Kenneth Karst, himself a distinguished constitutional law scholar. In a conversation with me about Learned Hand, Karst recalled a letter he had written to Gunther praising the biography. Karst said he especially appreciated “the ways [Gunther] had highlighted his main subjects’ connection with the political/social events of their times.” “It’s like War and Peace,” Karst commented, “except that the characters are real.”

As Justice Powell indicated in his foreword to the first edition, no scholar of the law was better equipped than Gunther to write Hand’s biography. (p. x ) Earlier writings, including Gunther’s monumental casebook on Constitutional Law,⁴ showed Gunther’s mastery of the art of synthesis. Among Gunther’s talents, he could take seemingly disparate lines of case law and identify common themes and unifying connections. Gunther thoroughly understood, and was well equipped to convey to others, the substance and scope of Hand’s intellectual contributions. A characteristic example: Gunther aptly describes how Hand, influenced by his Harvard Law School teacher James Bradley Thayer, became a leading critic of the Supreme Court’s Lochner-era due process jurisprudence. Gunther similarly emphasizes Hand’s early advancement of free speech, particularly his readiness to protect politically unpopular expression. Hand did so, while still a federal trial court judge, in the Masses case,⁵ knowing that his course would likely cost him an appointment to the next vacancy on the appellate bench.

Serving as Hand’s law clerk in 1953–54, Gunther observed from a front-row seat the human side of the jurist held in highest esteem by his colleagues, academicians, and legal practitioners. A judge famous for his wisdom and wit, Hand could sometimes be moody, annoyed, or exasperated. Gunther recounts, for example, Hand’s pique when Gunther told him that the judge’s thirteenth draft of an opinion still did not get it quite right. Hand hurled a paperweight in Gunther’s direction, then consoled the distraught law clerk with an affectionate tap on the head. Gunther’s enormous admiration for Hand, many other pages bear out, did not lead the biographer to shy away from acknowledging Hand’s insecurities and rough edges.

Gunther appreciated that judges and legal scholars are, in Hand’s words, “laborers in the same vineyard”: “[E]ach is necessary to the other, each must understand, respect and regard the other, or both will fail.”⁶ Gunther confirmed that appreciation time and again. In his teaching and writing, he conveyed his high regard for judicial institutions, and his abiding faith in the judicial process. Because Gunther’s commentary was reliably constructive, judges looked to his writings for inspiration and aid.

(p. xi ) Gunther’s “Foreword” to the Harvard Law Review issue on the Supreme Court’s 1971 term, titled “A Model for a Newer Equal Protection,”⁷ remains a classic, topping the list of most referenced law journal essays. In that pathmarking analysis, Gunther recognized that, in certain categories of cases—challenges to legislation drawing “a sharp line between the sexes,”⁸ for example—the Burger Court was applying the old “rational basis” equal protection standard with “new bite.”⁹ Decisions in subsequent terms revealed the prescience of Gunther’s characterization. Hand, celebrated for his trenchant one-liners, would have applauded his law clerk’s identification of le mot juste and his influential exposition.

Gunther was the sole speaker at the September 1980 ceremony welcoming me to the D. C. Circuit bench. I asked him to convey his thoughts on judging in the federal courts. Then several years into research, reflection, and writing for the biography, Gunther centered his remarks on Hand. Gunther recalled a passage from Hand’s 1939 memorial tribute to Benjamin Cardozo:

He never disguised the difficulties, as lazy judges do who win the game by sweeping all the chessmen off the table: [he] would often begin by stating the other side better than its advocate had stated it…. At times to those of us who knew him, the anguish which had preceded decision was apparent…. [B]ut he knew that it was a judge’s duty to decide, not to debate….¹⁰

Although Hand’s purpose was to honor Cardozo, his words fairly describe Hand’s own approach to judging. With Hand as his model, Gunther offered this description of the mindset the good judge should have:

[The good judge] is genuinely openminded and detached, …heedful of limitations stemming from the judge’s own competence and, above all, from the presuppositions of our constitutional scheme; [the good] judge recognizes that a felt need to act only interstitially does not mean relegation of judges to a trivial or mechanical role, but rather affords the most responsible room for creative, important judicial contributions.¹¹

“Many have preached that ideal,” Gunther observed, but “very few have come as close to realizing it as did Hand.”¹²

Hand’s opposition to Lochner, Gunther explains, derived principally from his conviction that he and his colleagues were not commissioned to second-guess (p. xii ) legislative judgments about economic policy. Courts risk undermining their very legitimacy, Hand warned, if they do not resist invitations to intervene in partisan disputes. Hand’s position once aligned him with liberal reformers who sought to use government to rein in the excesses of industrial capitalism. Later, a new generation of reformers sought to advance liberal ends by asking courts to overturn conservative legislative enactments. They may well have expected Hand to be in their corner. But for Hand, judicial restraint was a core commitment that demanded consistent rather than selective adherence.

Hand’s caution, moderation, and skepticism, Gunther brings out, had a more personal dimension. Hand placed himself “among those to whom life is complex and universals slippery and perilous.”¹³ He was wary of absolutes and critical of those who claimed a monopoly on truth. Liberty, in Hand’s view, depended on the free interchange of ideas, even ideas far afield from the prevailing wisdom. As he declared in perhaps his most famous speech: “The spirit of liberty is the spirit which is not too sure that it is right.”¹⁴

As an inveterate doubter, Hand was not one to prejudge the cases before him. His decisions—in cases big and small—were the product of careful investigation and meticulous analysis. Gunther describes how Hand would agonize over admiralty cases, consulting tide tables and weather reports, drawing diagrams, and arranging pens and pencils and inkwells on his desk to represent the positions of ships and piers. Hand’s attention to detail in patent and copyright cases was similarly legendary. Hand would sometimes have a piano set up in the courtroom so that the panel could listen to plaintiffs’ creations and the allegedly infringing compositions. Measures of that order were, for Hand, part of the job. He knew that his authority as a judge ultimately rested on his power to persuade. And he could not persuade others until he had first convinced himself, no matter how arduous the process. Among legions of others serving on the bench, I am comforted by the knowledge that Hand’s typically well-developed, eloquent, and eminently readable opinions did not spring from his mind fully clad as Athena did from the head of Zeus.

Gerald Gunther, Justice Souter wrote, “has studied a life and written a book, the way Learned Hand harrowed a record and resolved a case.”¹⁵ Gunther, through Hand, teaches us “every judge’s common obligations: suspicion of easy cases, skepticism about clear-edged categories, modesty in the face of precedent, candor in playing one worthy principle against another, and the nerve to do it in concrete circumstances on an open page.”¹⁶ To Justice Souter’s list, I would (p. xiii ) add—with Hand’s opinions in deportation cases as illustrative—compassion and caring, appreciation that judicial decisions affect the lives of everyday people. These qualities identify the devoted judge, but they also identify the devoted scholar. Learned Hand: The Man and the Judge gives both judge and scholar two exemplary guides to assist and inspire us as we shape our own work and days: Hand and his biographer.

—Ruth Bader Ginsburg

Justice, Supreme Court of the United States (p. xiv )