Learned Hand: The Jurisprudential Trajectory of an Old Progressive

Abstract

Reviewing Gerald Gunther’s biography of Learned Hand, this article explores the career and jurisprudence of Judge Learned Hand. It focuses on the evolution of Hand’s thinking from his early days as a Progressive to his late years as the advocate for an extreme form of “judicial restraint,” and it argues that Gunther’s book, although thorough and incisive, overlooks some critical changes that occurred in Hand’s thinking over the course of his life. First, it argues that Hand did not merely follow the constitutional prescriptions of his teacher, James Bradley Thayer, but modified them -- as did other Progressives, such as Louis Brandeis and Felix Frankfurter -- to serve his early reform goals. Second, the article questions Gunther’s explanation for Hand’s shift on First Amendment issues from his famous opinion in the Masses case (1917) to his opinion in United States v. Dennis (1950), and it argues that it is more the former than the latter that requires exploration and understanding. Hand’s changing views between the two cases, the article maintains, can be fully understood only by considering how his attitudes and values began evolving in the 1920s and 1930s as a series of political and personal developments led him to cast off his earlier Progressive politics and adopt a highly skeptical view of government and an increasingly rigidified and desiccated concept of judicial review. Finally, the article explores Gunther’s treatment of Hand’s famous Harvard lectures that were published as The Bill of Rights (1958), and it suggests that in his final years Hand’s jurisprudential skepticism and rigidification did him a great disservice. A special commitment to judicial restraint, the article concludes, is a product of personal values and attitudes as much as is any other jurisprudential commitment.

Keywords: Gerald Gunther, Learned Hand, Felix Frankfurter, legal Progressivism, First Amendment, The Bill of Rights, James Bradley Thayer, rule of the clear mistake, judicial restraint