Hand, Learned (1872–1961)

• Author: Gerald Gunther
• Pages: 1263-1264

Page 1263

Learned Hand is widely viewed, with OLIVER WENDELL HOLMES, LOUIS D. BRANDEIS, and BENJAMIN N. CARDOZO, as among the leading American judges of the twentieth century. His influence on constitutional law stems more from his extrajudicial advocacy of judicial restraint and his modest, yet creative, performance on lower federal courts in fifty-two years of judging than from the relatively few constitutional rulings among his nearly 3,000 decisions.

Christened Billings Learned Hand, the son and grandson of upstate New York lawyers and judges, Hand dropped the Billings after graduating from Harvard Law School in 1896. Hand surrendered to family pressures in turning to law rather than pursuing his interest in philosophy engendered by his Harvard College teachers, including William James, Josiah Royce, and George Santayana. In six years of practice in Albany and seven in New York City, he performed competently but considered himself inadequate. But the young lawyer's associations with New York City intellectuals and reformers prompted President WILLIAM HOWARD TAFT to name the thirty-seven-year-old Hand to the federal trial bench in 1909. President CALVIN COOLIDGE elevated him to the Court of Appeals for the Second Circuit in 1924, where Hand served for the rest of his life.

Hand's persistent belief in judicial restraint antedated his appointment to the bench. He had been strongly influenced by JAMES BRADLEY THAYER at Harvard Law School. His major publication before the judgeship was an article attacking LOCHNER V. NEW YORK (1905). His deepseated skepticism and allergy to absolutes, as well as his devotion to democratic policymaking and his unwillingness to be ruled by a bevy of Platonic Guardians, made him disdainful of judges ready to pour subjective philosophies into vague constitutional phrases. He was unwilling to suppress his hostility to JUDICIAL ACTIVISM, developed in the era of the Nine Old Men and its use of SUBSTANTIVE DUE PROCESS to strike down ECONOMIC REGULATION, in the post-1937 years, when the philosophy of HARLAN FISKE STONE'S footnote to UNITED STATES V. CAROLENE PRODUCTS COMPANY (1937), with its preference for personal rather than economic rights, gained ascendancy.

In his early years as a federal judge, Hand participated widely in extrajudicial activities. He was a member of the group that founded The New Republic magazine, and he helped draft THEODORE ROOSEVELT'S Bull Moose platform in 1912. Indeed...