The following are remarks by U.S. Surpreme Court Justice Samuel A. Alito on receiving the Learned Hand Award from the Federal Bar Council at its Law Day dinner on May 4 at the Waldorf Astoria in Manhattan. The text has been edited for publication.
It is a special honor to receive an award bearing the name of Learned Hand, surely one of the greatest judges of the 20th century. When Learned Hand died in 1961, a front page obituary in The New York Times referred to him as “the greatest jurist of his time.”1 Time magazine described him as “a legal eminence worthy of rank with John Marshall and Oliver Wendell Holmes.”2 Nearly a half century has passed since Learned Hand died, and yet his fame lives on. Indeed, I am convinced that there are many, not in this room tonight but elsewhere, who know that Hand was a great judge but know virtually nothing else about him.
I will give you an example. When I was on the [U.S. Court of Appeals for the Third Circuit], I kept a file of truly memorable briefs. There was the brief that was bound on the right, and it was not written in Chinese or Hebrew. There was the brief in which every other word or so was in quotation marks: The “court” entered “summary judgment” for the “defendant.” There was a brief written entirely without using the words “a,” “an,” or “the.” And then there was the brief that referred more than once to that legendary judge “Leonard Hand.”
Now, I was aware that Learned Hand and his cousin Augustus, who served together on the Southern District and the Second Circuit, were supposedly referred to by some of their colleagues as the Left Hand and the Right Hand. But I was not familiar with—and my research has failed to disclose any trace of—this third Hand, Leonard, but I am sure he was also great.
That Learned Hand’s fame should live on among those unfamiliar with his work is in a sense less remarkable than the high esteem with which he is still regarded by those who are familiar with his speeches and papers. I say this because the judicial philosophy that he boldly proclaimed there is entirely out-of-step with so much current thinking.
Let’s begin with statutory interpretation. And I know that my mention of that subject has given many of you a sinking feeling. But I promise that this will be brief and relatively painless. No one who reads recent Supreme Court or Court of Appeals opinions can fail to notice that statutory interpretation has taken a decidedly textualist turn. While pure textualism—the view that a judge should not look beyond the statutory text and familiar canons of interpretation—has not completely won the day, few judges today would proclaim, as Learned Hand did, that it is folly to read a statute “literally, for words are such temperamental beings that the surest way to lose their essence is to take them at their face.”3
Current statutory interpretation opinions frequently rely on dictionary definitions, but Hand derided what he called “the dictionary school” of interpretation,4 and famously said, “[W]e must not make a fortress out of a dictionary.”5
Hand’s views on statutory interpretation have current advocates, but Hand’s views on constitutional interpretation have few present-day defenders. Hand emphatically rejected originalism, the theory that the Constitution should be interpreted in accordance with the original intent of the Framers or with the Constitution’s original public meaning. Referring to the constitutional provisions protecting individual rights, he wrote: “Here history is only a feeble light, for these rubrics were meant to answer future problems unimagined and unimaginable. Nothing which by the utmost liberality can be called interpretation describes the process by which they must be applied.”6
Now undoubtedly some, perhaps many of you, here tonight share Hand’s dim view of originalism. But how many of you agree with him that the provisions of the Bill of Rights are merely “cautionary warnings”7 and that a federal court should not hold that a law violates one of those provisions unless the court can candidly say: “[A]fter every conceivable allowance for differences of outlook, we cannot see how a fair person [could] honestly believe that [its] benefits balance the losses”?8
Hand was a man of principle. He fervently believed that the pre-1937 Supreme Court had abused its power by striking down economic and social legislation under the Due Process Clause. He agreed with the subsequent decisions holding that such legislation should be sustained if it has any rational basis, a standard that is almost always met. And Hand saw no basis for applying a tougher standard to legislation challenged as violating non-economic rights. He condemned such a “double standard” and labeled it “opportunistic reversion.”9
Applying the rational basis standard, he said in private communications that he disagreed with the Supreme Court’s decision in Meyer v. Nebraska,10 which struck down a state law forbidding the teaching of the German language in the public schools.
During the famous Scopes monkey trial, he told Walter Lippmann, the editor of The New Republic and a friend, that while he deplored the Tennessee law prohibiting the teaching of evolution, he thought it was constitutional. According to Felix Frankfurter, Hand agreed with his decision in the Gobitis case, which held that a state could require students who are Jehovah’s witnesses to salute the flag even though that violates their religious beliefs.11 And in his famous Holmes lectures at Harvard in 1958, Hand went so far as to suggest the Supreme Court’s reasoning in Brown v. Board of Education was based on “its own reappraisal of the relative values at stake[.]“12
Many have lamented the fact that Hand was never appointed to the Supreme Court. But it seems clear that if this famous and esteemed judge were to be nominated today, he would have a very difficult time getting confirmed. It is easy to imagine some of the rhetoric that might be used: “Judge Hand’s America is a land where public schools may segregate by race, where foreign languages and evolution cannot be taught, and where school children can be forced to participate in an exercise that violates their deeply held religious beliefs.”
Why, then, is Hand still held in such high regard and why does he deserve to be held in high regard? Let me make a few quick points in response to the charges we have just heard. First, Hand made a valuable contribution in highlighting the tension between democracy and judicial review. He framed an important question in provocative terms and helped to stimulate the intense debate about constitutional interpretation that we have seen during my professional career. Second, all of the constitutional opinions I have mentioned were expressed either in a lecture or in private communications. And as every judge knows, it is one thing to say something when your words have no real-world consequences and quite another when they do.
But the main point I want to make is that the great Learned Hand, in my opinion, was Hand the judge, not Hand the lecturer or orator or theorist. The great Learned Hand was the man who labored for more than 50 years on the Southern District and the Second Circuit, where few of his cases involved constitutional issues. Instead, his day-to-day work mostly involved such fields as corporate law, torts, patent law, bankruptcy and admiralty, fields in which he made lasting contributions.
When Learned Hand died, the Times of London said that “[t]here are many who will feel that with [his] death . . . the golden age of the American judiciary has come to an end.”13
I think there is much truth in that comment, not because the judges of Hand’s time were better than their contemporary counterparts. I am obviously biased on this point, but I do not think that that is true. Rather, I think that Hand’s era is viewed as a golden age because it pre-dated subsequent developments, such as the docket explosion that has put an enormous, indeed, I would say, an intolerable, strain on the traditional understanding of what it means to be a judge.
The traditional conception is that a good judge is a good craftsman—not an artist, an executive, a bureaucrat or an academic —but a humble, skillful craftsman. And Learned Hand was a consummate craftsman. Listen to this description of the procedure he followed in writing an opinion. Gerald Gunther, his great biographer, writes:
“[E]very opinion that bears Hand’s name was produced, word by word, by the judge himself and no one else. …Before getting down a word, he would tell [his law] clerk what he planned to write in, say, the first two paragraphs, and then invite, indeed,press, his clerk to offer criticisms; Hand took these very seriously. The clerk would then return to his own desk while Hand wrote out the first paragraphs in longhand. Soon, Hand would give the yellow sheets to the clerk for renewed criticism; if the clerk had objections and Hand saw merit in them, he would try again. He repeated that procedure for page after…page of his drafts, continuing to press for comment.”14
Compare that painstaking process with this candid description of the way in which many of the opinions are prepared today in one of our busiest courts of appeals.
In the Ninth Circuit, each active judge sits on more than 500 cases per year, an absolutely staggering figure. Most of these cases are decided with an opinion that is labeled not precedential, and here is how the chief judge of that court has described the preparation of most of these opinions: they “are often drafted entirely by law clerks and staff attorneys” and are “presented to a panel of three judges in camera, with an average of five or ten minutes devoted to each case. During a two- or three-day…session, a panel of three judges may issue 100 to 150 rulings.”15 If Learned Hand’s opinion writing is akin to producing a custom-made garment, the judges who sign off on 50 opinions per day are more like factory managers.
This is how Learned Hand, near the end of his life, described the most important lessons he learned from his law school professors. “The memory of those men,” he said, “has been with me ever since. …From them I learned that it is as craftsmen that we get our satisfaction.”16
No judge today could afford to work the way Hand did, but if today’s judges lose touch with the tradition of personal craftsmanship, something very precious will have been lost.
Learned Hand’s example also speaks to the issue of publicity. In 1944 Hand gave a famous speech called “The Spirit of Liberty” to which I will return. But for now, I will say only that the speech, which was carried on the radio, was widely reprinted in popular publications and brought Hand widespread notice and praise. Hand wrote to a friend: “[L]ike nearly everybody else, I adore applause and so I ‘lapped up’ this. If a man says he doesn’t, he lies.”17
But in his judicial work, Hand was acutely aware of the danger of playing to the crowd. One of Hand’s most famous Second Circuit cases, a foundation of his reputation as a champion of free speech, was United States v. One Book Entitled ‘Ulysses‘.18 In 1932, when Random House attempted to import James Joyce’s classic, the Customs Service seized the book and the government filed a proceeding to condemn it as obscene. The case was assigned to a district judge named John M. Woolsey.
Woolsey was a flamboyant character who sported a gold ring around his cravat, waved an ivory cigarette holder and was known for the literary style of his opinions. He held that the book was not obscene because it did not tend to excite impure impulses or thoughts in the mind of a person “with average sex instincts.”19 After privately deciding that “Ulysses” passed this test, Woolsey stated in his opinion, he tested his conclusion by giving the book to two friends who, in his view, had average sex instincts. (How he verified this, he does not say.) But Woolsey reported that they agreed with his judgment.
Woolsey then issued an opinion that was described, by an admirer, as “a decision which read like an exceptionally intelligent and enthusiastic book review.”20 Bennett Cerf, the publisher of Random House, liked Woolsey’s opinion so much that for many years it was included at the front of every copy of “Ulysses” sold in the United States. It is said to be the most widely distributed federal court opinion of all time.
When the appeal was argued in the Second Circuit, the newspapers described a circus-like atmosphere. The U.S. attorney spent hours reading aloud long passages of the book, including the entirety of the last 46 pages. The papers described “three solemn, elderly gentlemen on the bench staring self-consciously at the book”21 while the U.S. attorney went on and on reading what he regarded as the dirtiest passages.
Both Learned and Augustus Hand sat on this Second Circuit panel, and they agreed that the book, considered as a whole, was not obscene. (What the erudite Leonard thought about this is not known, but I feel confident that he concurred.) The Hands thus voted to affirm Woolsey but they wanted, as Professor Gunther put it, “to discourage judicial opinions as performances in a publicity circus.”22
Learned Hand said that they should aim to produce an opinion containing “not a single quotable line,”23 and to that end they agreed that Augustus Hand should be the author because his writing was more boring than his cousin’s.
I don’t think that any federal judge has ever written more beautifully than Learned Hand, and as his 1944 speech illustrated, he was capable of touching a wide audience with his oratory. But he did that off the bench. On the bench, he was acutely aware of the danger of playing to the crowd. If judges do that, he wrote, they will “forfeit their independence.”24 A society whose judges have taught it to expect that they will “trim their sails to the prevailing wind,” he warned, will insist that the judges do so, and the judges will “kill this thing they love.”25
Just as Hand drew a sharp distinction between oratory and judging, he also keenly appreciated the difference between judging and academic writing, and that recognition is reflected in the style of his opinions. Any one who compares Supreme Court and Court of Appeals opinions from the Hand era with those written after, let us say, 1970, will immediately notice a huge contrast.
The earlier opinions are generally short and to the point, but by the 1970′s, opinions had begun to look more and more like law review articles. On the Second Circuit of Hand’s day, Judge Jerome Frank was a precursor of this later development. Frank wrote long, discursive opinions with the aim of “educat[ing] the bar.”26 He explained: “Few lawyers read the law journals. Fewer still read books dealing with ‘jurisprudence.’ But most of them do read opinions”27 —something that is probably no longer true, since the very things that drove lawyers from the law reviews and books now drive them from judicial opinions. But that is an aside.
Hand did not try to change Frank’s style, but he found that style distasteful.
He explained that he objected to the practice of making an “opinion more a legal treatise” because “[i]t is not the tradition of the American or the English bench; it tends to prolixity and gets the judges professorial; after all, we are not speaking to eternity, but deciding disputes.”28 But then he added, “I was reared in an earlier age.”29
If Hand’s age was a golden age of the American judiciary, that is because it was a time when the judiciary could hold with pride to its own distinctive practices and traditions. Judges in that era were not managers constantly focused on the quantity of production. Judges like Hand did not see themselves as directors of dramatic productions in which they could cast themselves in the leading roles. And jurists like Hand did not aspire to write like academics and, I believe, understood that judges cannot think like academics either.
For those of us who are judges or lawyers, Learned Hand and other great working judges and lawyers should provide an inspiration. They should remind us who we are and where we came from as a profession. In an age of mass production, an age of bureaucracy, of specialization, theory, ideology and electronic communications, it is good to keep in mind the image of Learned Hand, in his chambers, laboring away, paragraph by paragraph, on his yellow pads.
Let me now return to Hand’s speech, “The Spirit of Liberty.” The scene was Central Park, May 21, 1944. Many thousands of people, including many new citizens, were in attendance. It was an anxious time in the history of the country. In England, more than a hundred thousand Allied troops were preparing for the D-Day invasion, which would occur just two weeks later.
Although the public obviously did not know when or where the invasion would occur, everyone knew that it would be attempted and that the casualties would be high, as they were. It was in this atmosphere that Hand approached the microphone—a 72 year old appellate judge, from a privileged background, a man who had been on the federal bench for nearly half his life, a man who would seem to have little connection with the lives of the ordinary people to whom his remarks were directed.
Part of the story of this now-famous speech is the fickleness of fame. Hand had labored for more than 30 years producing carefully crafted judicial opinions that had attracted little notice from most ordinary people. But then he delivered this hastily written speech, which cannot have lasted much more than five minutes.
Hand’s little speech, quite by chance, brought him instant, widespread fame. The speech was carried live on a radio station that played classical music. It might have passed unnoticed, but a writer from the New Yorker happened to tune in, expecting to hear Beethoven or Brahms, and instead he heard Hand. Moved by the speech, he arranged for it to be reprinted in his magazine. One thing led to another, and the text was then printed in the New York Times, Life magazine, and the Reader’s Digest. It was said that the speech was popular with soldiers, which pleased Hand very much.
What accounts for the popularity of this little speech? The answer, I think, is the speech’s affirmation of faith in ordinary Americans. Hand began his talk with these words: “We have gathered here to affirm a faith, a faith in a common purpose, a common conviction, a common devotion.”30 That faith, he said, is liberty. And the foundation of that liberty is the common man.
Two years earlier, expressing, I think, a similar sentiment, Aaron Copland had written his Fanfare for the Common Man. And I think that is a fitting description of Hand’s theme.
“I often wonder,” Hand said, “whether we do not rest our hopes too much upon constitutions, upon laws and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it.”31
Every once in a while a survey will be conducted to see how much the American people know about the Constitution, and often the results are not too good. And that is to be regretted. Ordinary citizens should know more facts about the Constitution. But I am convinced that the spirit of the Constitution—of limited but effective government, individual rights and equal justice under law—is alive and well in the hearts of the American people.
My colleagues and I see that in the hundreds of letters that we receive from ordinary Americans who care deeply about our decisions in constitutional cases. And we see that in the crowds that gather peacefully in front of the Supreme Court building to express their views. Americans who exercise their free speech rights affirm their faith in our Constitution.
We judges and lawyers have a solemn obligation to do everything we can to keep that faith alive. That, I take it, is one of the reasons why we celebrate Law Day. And in that sense, every day should be Law Day.
It has been an honor to speak to you tonight and to share some thoughts about an imperfect, which is to say human, but nevertheless, an undeniably great judge.
Samuel A. Alito, Jr. is an associate justice of the U.S. Supreme Court.
1. Judge Learned Hand Dies; On U. S. Bench 52 Years, New York Times, Aug. 19, 1961, at 1.
2. Nation: A Matter of Spirit, Time, Aug. 25, 1961, available at http://www.time.com/time/magazine/article/0,9171,895617,00.html
3. Learned Hand, “The Contribution of an Independent Judiciary to Civilization,” in “The Spirit of Liberty,” 172, 174 (Irving Dilliard ed., 1952).
4. Learned Hand, “How Far is a Judge Free in Rendering a Decision?” in “The Spirit of Liberty,” 103, 107 (Irving Dilliard ed., 1952).
5. Cabell v. Markham, 148 F. 2d 737, 739 (2d Cir. 1945).
6. Hand, supra note 3, at 177.
8. Id.at 179.
9. Gerald Gunther, “Learned Hand, The Man and the Judge,” 656 (1994).
10. 262 U. S. 390 (1923).
11. Gunther, supra note 9, at 657.
12. Learned Hand, “The Bill of Rights,” 54 (1958).
13. Judge Learned Hand: A Great American Judge, The Times (London), Aug. 19, 1961, at 10.
14. Gunther, supra note 9, at 289-90.
15. Letter from Alex Kozinski, Circuit Judge for the Ninth Circuit, to Samuel Alito, Chair Appellate Rules Committee (Jan. 16, 2004), available at http://www.uscourts.gov/rules/Appellate_Comments_2003/03-AP-169.pdf.
16. Gunther , supra note 9. at 654.
17. Id. at 551.
18. 72 F.2d 705 (2d Cir. 1934).
19. United States v. One Book Called “Ulysees”, 5 F. Supp. 182, 184 (S.D.N.Y. 1933).
20. Gunther, supra note 9, at 335.
21. Id.at 336.
22. Id. at 338.
24. Hand, supra note 3, at 180.
25. Id. at 180-81.
26. Gunther, supra note 9, at 529.
28. Id. at 528.
30. Learned Hand, “The Spirit of Liberty,” in “The Spirit of Liberty,” 189, 189 (Irving Dilliard ed., 1952).
31. Id. at 189-90.