Gerald Gunther.

• Author: Souter, David H.
• Position: Law professor - Testimonial

I did not have Gerry Gunther as a professor in the classroom, but I speak this afternoon as someone who has gained much from his teaching. Let me call myself one of his judicial students, for I became acquainted with Gerry after I went on the bench, and it was then that I found in his writing the validation of a certain approach to deciding cases that my own instincts and judicial experience had pointed toward.

I don't need to name the book that stands out for me in Gerry's written harvest. Learned Hand said once that he would like to have posted over the door of every church and school, every courthouse and legislative hall in America, the words of Cromwell to the Scots before the battle of Dunbar, begging them to consider that they might be mistaken. Well, I will match his fancy, because if I had the power, I would see to it that no judge in America entered office without reading Gerry's life of Hand. And I would be guilty of no extravagance, for the book is much more even than a great biography, in the way it gives good counsel to judges of all times and places, and particularly to appellate judges like me, in the place where I am sitting at this very time.

Its lesson begins in a biographical paradox that I could never have guessed at. When I was in college, I saw Learned Hand on the street one afternoon, looking the way his photographs showed him, and seeming indeflectable as he walked along, like a granite statue moving down the sidewalk. Later I read some of his opinions, which struck me as being all of a piece with the figure I'd caught sight of, marshalling law and fact with a confidence nothing short of command. Then, after many years, I read Gerry's book and found out what Hand was actually like: indisposed to call the wall facing him black or white, judging with a diffidence near to fear sometimes, deciding a case only because he had no escape. So much for icons, the account seems to say, and partway through reading it we're apt to think, what a misalignment of mind and duty.

Then we read some more, and the man and the job seem to reconcile, like a split image moving back into single focus, and they end up in the fit we'd always believed was theirs. The secret of their unity, Gerry tells us, lies in the legendary craftsmanship, which became Hand's bridge from doubt to decision. The chronic evenhandedness compelled the judge to come out and say what he was really choosing between; the torment of competing reasons forced him to face the very facts that placed his principles in tension; and not just face the facts, but heft them and feel their weight until finally the needle of his mind moved off dead center.

Slowly, though, the account of judge and man and their mutual integrity takes on a companion theme, not about what Hand's judging was, but about what anyone's judging ought to be, a theme not so much stated as suggested by the story's form and the way Gerry set himself to write it. The evidence he places out in plain sight; his narrative moves like the unhurried man I saw walking a Cambridge street; his story has no shortcuts, no stretches lost from sight behind some edifice of generality. As the pages mount up, Gerry's deliberate writer's pace, and his relentless honesty in testing evidence and treating issues, create a kind of atmosphere that gathers around the storyline, until at last the book itself is seen to typify the very judging it describes. Gerry has studied a life and written a book, the way Learned Hand harrowed a record and resolved a case, and as that understanding emerges in our minds, it comes with a companion question: If Hand is the prototype good enough for Gerry Gunther, why not for us, why not for every judge who reads the book?

There's no mistaking Gerry's answer, that Learned Hand's necessities are 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. Gerry is still Learned Hand's old law clerk urging us to hunt for "`general guidance from close examination of the particular,'" telling us that details spark the intuition and real judging gets done from the ground up. (1)

So, having started with the paradox of Learned Hand, we come to the judicial paradox, that we have no hope of serving the most exalted without respecting the most concrete. Judicial duty points to Blake's grain of sand. Seeing that saved Learned Hand; it is what the old common law judges understood, and what Antaeus knew, whose strength never failed him until he lost his touch with the earth.

The lesson has been passed along to us by a man who came to America in a perilous time, and it has the capacity to encourage us now in our own time of peril, with our safety threatened and our constitutional sense of ourselves debated. While I can't tell what I will do with the dilemmas already on their way to my Court, I think I will know enough to treat with them by being Gerry Gunther's kind of judge, by hewing to the common law habits he esteemed and espoused. Don't worry that you haven't got the answers up your sleeve, Gerry calls over his shoulder; just decide the cases when they come along. The lesson is so simple.

It is also profound, and eloquent of its teacher, and it summons up the words of Gerry's master about those who once had taught the law to him. The recollection of them, he said, had "helped [him] when the labor seemed heavy ... and the confusion seemed indecipherable." Such was the power of "devoted scholars; patient, considerate, courteous and kindly, whom nothing could daunt and nothing could bribe." (2)

How else could we remember Gerry?

(1.) Gerald Gunther, A Tribute to Justice Lewis F. Powell, Jr., 101 HARV. L. REV. 409, 412 (1987) (quoting Gerald Gunther, In Search of Judicial Quality on a Changing Court: The Case of Justice Powell, 24 STAN. L. REV. 1001, 1035 (1972)).

(2.) LEARNED HAND, THE BILL OF RIGHTS: THE OLIVER WENDELL HOLMES LECTURES 77 (1958).

David H. Souter, Associate Justice, United States Supreme Court. Justice Souter delivered a version of these remarks at Stanford Law School, October 4, 2002.

Memories of Gerald Gunther

Gerald Gunther was my professor, my adviser, my friend, and our nation's leading constitutional law scholar and judicial biographer. His commentary, and the counsel I retain in my mind, will continue to guide me through all my days on the bench.

My affiliation with Professor Gunther began at Columbia Law School in the 1958 academic year. His Federal Courts seminar, team taught with Herbert Wechsler, was an intellectual experience like no other in my law student years. At that time, Gerry was in charge of clerkships for Columbia students. I was his most challenging case. It was bad enough that I was a woman; I was also the mother of a child near four. In those now ancient days, a mother was more than legal employers would bargain for. Gerry recommended me to every Circuit Judge and nearly every District Judge in the vicinity, initially to no avail. Ultimately, to my great good fortune, he devised a winning strategy. He promised a bachelor to replace me, he told me years later, should my performance prove unsatisfactory.

In my early years as a teacher, I sent Gerry everything I wrote. His comments were characteristically caring and kind, though I cannot report that he shared my enthusiasm for civil procedure in Sweden. When I mined to constitutional law in the late 1960s, he was pleased and willing to be my constant adviser, though my efforts trained less on classrooms than on courtrooms.

Gerry believed, and proved time and again in his commentary, that being scholarly and being effective are not inconsistent. His foreword to the Harvard Law Review issue on the Supreme Court's 1971 Term is typical. Gerry chose to describe "A Model for a Newer Equal Protection." (1) That commentary became the most widely studied legal article published over the last four decades. (2) Gerry featured the 1971 pathmarking sex discrimination case, Reed v. Reed. (3) His description, in mm, influenced, and was cited in, the briefs I thereafter filed aimed at achieving recognition of the equal citizenship stature of men and women.

Many of the 1970s gender-equality plaintiffs sought not to strike down laws as violative of the equal protection principle. Instead, the aim was to cure the constitutional infirmity by extending benefits to a class--sometimes men, sometimes women--left out in the legislation. Many in the academy assured me that that was beyond the pale. Courts could invalidate a law but could not preserve what the legislature had done by ordering a saving alteration. Gerry thought otherwise. See Justice Harlan's concurring opinion in Welsh v. United States, (4) he counseled. That was the key. The ACLU Women's Rights Project, which I superintended, featured Harlan's opinion in Welsh in a line of successful cases. Eventually, all nine Justices openly acknowledged, in Califano v. Westcott, (5) that in lieu of nullifying a legislative proscription entirely, the courts could extend coverage to those unconstitutionally excluded.

Gerry was the sole speaker at the ceremony welcoming me to the D.C. Circuit bench in September 1980. I asked him to speak not about me, but about judging in the federal courts. For the most part, he did so. Then several years into research, reflection, and writing for his magnificent book on Learned Hand, (6) Gerry 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.... [T]he anguish which had preceded the decision was apparent [to those who knew him;] but he knew that it was a judge's duty ultimately to decide, not to debate...