By David M. Dorsen, The Belknap Press of Harvard University Press, Cambridge, Mass. 498 pages, $35.
Not every New York lawyer may go along with the sub-title to this new biography. Yet few practitioners old enough to have appeared before Judge Henry Friendly or to have otherwise encountered him will take exception to the assertion of his greatness. In a foreword to the book, Seventh Circuit Judge Richard A. Posner calls Friendly “the most powerful legal reasoner in American legal history.” David M. Dorsen of the District of Columbia and New York bars has done justice to a jurist of extraordinary depth and accomplishment.
Henry Friendly sat on the U.S. Court of Appeals for the Second Circuit from 1959 until his death by suicide in 1986 at age 82. He served as chief judge from 1971 to 1973. He also served for ten years as chief judge of the special court set up by Congress in 1973 to preside over the bankruptcies of several northeastern freight railroads and the consolidation of their assets in Conrail. The greater part of the book, of course, deals with its subject’s years on the bench, but early chapters cover Friendly’s boyhood, education and 31 years of private practice as well.
From the start, Friendly showed intellectual brilliance and scholarly diligence. Born and raised in Elmira, N.Y., he entered Harvard College at the age of 16. A member of Phi Beta Kappa, he graduated summa cum laude. At Harvard Law School he was elected president of the Harvard Law Review and again graduated summa cum laude.
On the recommendation of Professor Felix Frankfurter, Friendly was appointed law clerk to Justice Louis D. Brandeis for the 1927-28 term. According to the author, “Brandeis’s thoroughness and discipline in doing his own work contributed to Friendly’s education.” In later life Friendly named Brandeis as one of four jurists who would “tower above the rest” of their 20th century counterparts.
In 1928 Friendly turned down the offer of an assistant professorship at Harvard Law School and decided to go into private practice in New York. As ethnically but not religiously Jewish, he made that decision despite the fact that, as Dorsen puts it, “The divide between Jewish and Christian firms and lawyers in the 1920s in New York City was a real wall.” Friendly joined a firm then known as Root, Clark, Buckner, Howland & Ballantine (later called Root, Ballantine and other names). He became a partner in 1937.
At the end of 1945 Friendly and three other partners left Root, Clark to form Cleary, Gottlieb, Friendly & Cox. Friendly remained there until ascending the bench in 1959. Both firms prospered during the time Friendly spent with them. This plus his tenure as vice president and general counsel of Pan American World Airways from 1946 to 1959 enabled him to die a multi-millionaire.
A chapter entitled “Nomination and Confirmation” will instruct readers in the tugging and hauling, string pulling, back scratching, logrolling and so forth incident to an elevation to the federal appellate bench. Friendly complicated the process by declining a district judgeship, the customary stepping stone to such an appointment. Once again, however, Friendly had the backing of his former mentor, now Justice Felix Frankfurter. The support of Judge Learned Hand, whom Friendly liked and respected, also helped.
Henry Friendly has for years been thought of as a conservative member of the Second Circuit. Granted, in the Pentagon Papers case he took a stand in favor of the Government. Earlier, he had advocated modifying the rule in Miranda v. Arizona by permitting the admissibility of tangible evidence obtained by interrogation without issuance of Miranda warnings. Dorsen cites other examples that could fall within this category.
Yet the book shows, or at least convinces this reviewer that such a classification represents an oversimplification. Friendly often took positions that today would be deemed liberal. He expressed agreement, for example, with the Supreme Court’s decision in Gideon v. Wainwright (1963), establishing the constitutional right of an impecunious criminal defendant to court-assigned counsel. He insisted, contrary to originalist thinking, that the definition of “cruel and unusual punishments” as set forth in the Eighth Amendment had evolved with the passage of time. He “strongly supported civil rights in a variety of contexts.” In a 1973 decision he upheld a finding that an employer had violated federal law by paying men more than women for the same work.
In truth, the author seems to be saying, ideology played no real part in Friendly’s legal thinking. He invariably insisted on a total mastery of the facts of a case, no matter how complicated. The book points out time and again how often his decisions turned up and resolved issues that counsel in their briefs and arguments had failed to perceive. Dorsen makes a convincing case in support of his characterization of Friendly as “a pragmatic moderate” who on today’s Supreme Court “would undoubtedly be a swing vote.”
Perhaps the best measure of the eminence and respect that Friendly earned lies in the frequency with which his opinions have been cited by others on the bench, including justices of the Supreme Court. A tabulation near the end of the book sets forth the number of times lower court judges were mentioned by name in Supreme Court opinions. Friendly comes in second only to Learned Hand, who served for a much longer period. Friendly’s total comes to almost seven times that of the judge listed next below him. In Morrison v. National Australia Bank (2010) Justice John Paul Stevens, concurring, referred to Friendly as “[o]ne of our greatest jurists.”
Whatever the author’s intention, he has produced a book for lawyers. Skillful as he is at reducing abstruse legal concepts to relatively simple language, his detailed analyses of the cases in which Friendly participated are too much for most lay minds to handle without extra effort. That feature, however, makes the book all the more valuable as an educational tool for members of the profession.
Henry Friendly’s principal monument will remain his contributions to the development of our law. Yet he deserves as well an authoritative, objective and comprehensive biography. David Dorsen has met that requirement with an impressive display of scholarship, writing skill and wholehearted but by no means blind dedication to his subject. It makes worthwhile reading.
Walter Barthold is retired from the practice of law in New York City.