Judge Henry Friendly and the craft of judging.

• Author: Boudin, Michael
• Position: Testimonial

How judges decide cases is a subject on which Henry Friendly sometimes touched in his writings. An example, published in this school's law journal, was his book review of Karl Llewellyn's great work on appellate judging; (1) but Friendly seemed mildly amused at Llewellyn's complex scheme and unique vocabulary. Anyway, Judge Friendly's own bent was toward history, not jurisprudence, and after three decades of arguing cases and advising clients, Friendly's craftsmanship was in his bones.

Yet interest in the subject of how judges decide cases continues to flourish. Recently, scholars have offered differing views on whether and to what extent federal circuit judges are, or should be, influenced by precedent, by statutory language, by the slant of the president who appointed them, by the political affiliation of their own colleagues, by the size of their circuits, by the presence or absence of dissents, by the practical consequences of their decisions, and by their own social goals and temperament. (2) Judge Friendly's own decisions, along with the work of a handful of other judges, are the gold standard in American appellate judging. So it is worth pondering what Friendly's body of court work can teach us about him and about the enterprise of deciding appeals.

Appellate judges have the peculiar burden of seeking to do three different things at the same time: first, to determine and respect "the law," this vast collection of constitutional provisions, statutes, precedents, canons, and other paraphernalia; second, to reform doctrine, if permissible and when appropriate, in light of new insights, experience, and social imperatives; and finally, to get the specific quarrel settled in a just and practical way. Naturally a potential exists for conflict among these aims--the difficulty of riding several horses at the same time--but let us defer that problem for the moment.

Along with other strengths, Friendly brought to the tasks of law finding, law improvement, and sound outcomes two qualities in which perhaps no American judge has surpassed him: a skill in wielding the legal tools and a quality of judgment honed by years of private law practice and service as general counsel to a great corporation. His education and professional background have been considered at length elsewhere. (3) Here, taking as a surrogate a few examples from cases he decided during a single Second Circuit term, let us explore how he went about deciding cases and how his experience informed this exploration.

Common law judging is built on precedent--to Blackstone, precedent was the foundation principle and the crucial restraint that (in Blackstone's words) kept "the scale of justice even and steady, and not liable to waver with every new judge's opinion"; (4) but many lawyers and scholars now doubt whether prior case law much constrains today's judges. The causes of doubt are multiple: sharp doctrinal shifts by the Supreme Court throughout the twentieth century; realist legal philosophy and its offshoots; the preoccupation of modern courts with policy and consequences. For a law student in the 1960s, a vivid metaphor was Anthony Amsterdam's likening of conflicting canons of construction to pool balls lodged on parallel racks, waiting to be chosen to support a desired result. (5)

Friendly, by contrast, took precedent extremely seriously, albeit less as a command than as a presumption. His decisions regularly sift through numerous earlier cases, distinguishing some on their facts or in light of what was argued, discerning trends, and explaining aberrant outcomes. His brain seems to have been built for this function. We then remember that he was schooled in the 1920s at Harvard by masters of the art of weighing and dissecting in a time when precedent got more consideration in classrooms and, at least formally, more respect in courts. Consider this sequence from Friendly's concurrence in a decision:

The authorities on which the [panel majority] relies are not so strong as they might appear. It is indeed profitless to argue whether "dictum" or "holding" best characterizes Judge Frank's statement in York that a spurious class action tolls the statute of limitations for later intervenors. What is clear is that the intervenors in question were not before the court and that the statement was initially framed without benefit of argument from counsel. While the question was raised on rehearing, the Court's attention at that time undoubtedly centered on the quite different problems that led Judge A. N. Hand to withdraw his concurrence and the Supreme Court later to reverse. (6) What has just been quoted is only a portion of what Judge Friendly said about the dubious history and circumstances that qualified the authorities in question.

Part of this attention reflected for Friendly the importance of maintaining stable rules. As a former practicing lawyer and adviser to businessmen, he understood the need for predictability and for protecting reliance. But Friendly's immersion in precedent gave him something more subtle than the "discovery" of some legal rule to be discerned, applied, and perpetuated. Rather, it was an education in the rules and reasons past judges had given in handling like problems, a sense of facts that pushed decisions one way or the other, and the direction and limits of the dominant tendency. Whether this education led him to reaffirm, distinguish, or overturn a precedent is a different question. And, of course, he was not a slave to precedent. Being himself a temperate reformer, Friendly was ready to alter and improve law where this was allowable. He titled his tribute to Roger Traynor Ablest Judge of His Generation, and--here the second verb is telling--said that Traynor "illuminated and modernized every field of law that he touched." (7) A judge of an intermediate federal court lacks the latitude of a state supreme court justice to alter common law; but Friendly, who helped advance the notion of federal common law in a narrower realm, was free to improve federal doctrine in a host of other fields and often did.

In Friendly's law school days, legislation took second place to case law; but in the New Deal, a torrent of statutes spilled out of Washington, and their interpretation has been a central part of federal judging ever since. The task is as demanding as common law judging--and not wholly different in its criteria. Some statutes--the antitrust laws, for example--are nearly blank canvas and invite nothing very different than common law elaboration; other, more detailed enactments confine more but also multiply problems of construction, often as to issues to which no legislative thought was ever directed. Friendly agreed that language mattered but found that language was rarely as rigid as it might appear at first glance and that interpretation, both of statutes and prior precedents, depended as much on an understanding of purpose and history.

Trained at Harvard College as a historian and always half in love with that calling, Friendly enjoyed identifying the real-world problem the statute sought to solve and unearthing the compromises made in the solution. And he not only could see the parts of the statute in relation to one another but, like an archaeologist, could correlate the present version to prior ones. In one case he gave a limited reading to a change in language, deeming a broader one at odds with the basic structure: borrowing from Justice Frankfurter, Friendly said that Congress "did not inadvertently add a colonial wing to a gothic cathedral." (8) In another, after an exhausting march through legislative history and real-world events, he concluded: "While this history would give no sufficient reason for cutting down the words that Congress used, it does afford ground for refusing to expand them." (9)

More dramatic is a civil rights case in which protestors were charged in state court with disrupting traffic. (10) Based on a Reconstruction Era statute, defendants claimed the right to remove to federal court all criminal prosecutions of civil rights demonstrators. Defendants did not contest the fairness of the state court--an express ground of removal under the statute--but relied on a different provision of the statute allowing removal of any proceeding brought "[f] or any act under color of authority derived from any law...