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“If we are to keep our democracy, there must be one commandment: Thou shall not ration justice.”

The great American jurist’s real name was Billings Learned Hand but he went by “Learned”, a no-brainer given his career in the law.

Born in Albany, New York on January 27, 1872, he attended Harvard Law School.

After 12 years of private practice, he accepted an appointment as a US District Court, a position he held from 1909 to 1924 (pictured in 1924).

From 1924 to 1951, he served on the US Court of Appeals, his 43-years tenure as a full-time judge the longest ever for a US federal court.

  At the time of his first appointment in 1909, he was only 37, one of the youngest appointees ever.

He is widely considered to have been the best judge never to sit on the US Supreme Court, missing several opportunities, mainly because of his reluctance to promote himself.

Learned Hand 1924Instead, through a steady flow of almost 4,000 written decision, he became one of the foremost judges of the English-speaking world.

In an era where government and corporations were running amock with power, he was indeed a “learned hand” in striking down causes or legislation that ran contrary to his view of the American constitution.

In Masses Publishing Co. v. Patten (1917), with war fever striking the nation, , he heard the plaintiff’s case against the US Postmaster General, the latter refusing to distribute Masses pacifist magazine. The case concerned a first test of the new Espionage Act which intended to “interfere” with the US’s military efforts. The Postmaster urged the prevailing view upon Hand: that if written material had the potential to incite the prohibited interference, that was enough to justify a ban.

Hand refused to follow the “sagesse des foules” and, instead, decided that the proper test was an “incitement test”; whether the material encouraged or incited others to interfere with military operations. He wrote:

"To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government."

It was a breath of fresh air for freedom of speech at a time so desperately needed. His decision was overturned but he vindicated decades later when the Supreme Court built on his concept of the incitement test to weigh published material against national security.

On the Court of Appeals, he joined his cousin Augustus Noble Hand and devised a judgment writing system which promoted independent thought with each judge declaring his opinion on a case in writing and then sharing this opinion with the others, before they met collegially to decide on the Court’s disposition of the appeal.

Such was his unique standing that when an insufficient number of Supreme Court judges could not be found to constitute a quorum to hear an urgent anti-trust case, the government enacted a special statute giving him final determinative authority over the case.

He is remembered for a speech given at an I Am An American" celebration in Central Park in 1944 entitled “The Spirit of Liberty”, which he later turned into a book of the same name, and during which he said.

"Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can even do much to help it.Learned Hand

"While it lies there it needs no constitution, no law, no court to save it.

"And what is this liberty which must lie in the hearts of men and women? It is not the ruthless, the unbridled will; it is not freedom to do as one likes. That is the denial of liberty, and leads straight to its overthrow.

"A society in which men recognize no check upon their freedom soon becomes a society where freedom is the possession of only a savage few; as we have learned to our sorrow.

"The spirit of liberty is the spirit which is not too sure that it is right; the spirit of liberty is the spirit which seeks to understand the mind of other men and women; the spirit of liberty is the spirit which weighs their interests alongside its own without bias; the spirit of liberty remembers that not even a sparrow falls to earth unheeded; the spirit of liberty is the spirit of Him who, near two thousand years ago, taught mankind that lesson it has never learned but never quite forgotten; that there may be a kingdom where the least shall be heard and considered side by side with the greatest."

In 1951, his decision in Dennis v. United States, involving the rights of avowed communists, was another difficult but correct decision which further advanced his standing.

One of his best known sayings was: "Dread a lawsuit beyond anything short of sickness and death".

Even when he retired as a full-time judge, he continued part-time and sat on the occasional case right up to his death on August 18, 1961, at the age of 89. He was struck by a fatal heart attack in New York City having served as a federal judge for 52 years, prompting the Harvard Law Review to devote an entire issue to him.

His career was dogged with questions surrounding his non-appointment to the Supreme Court yet nothing has detracted from his legacy of judicial integrity and brilliance.

References:

  • Duhaime, Lloyd, Law's Hall of Fame
  • Masses Publishing Co. v Patten 244 F. 535
  • Gunther, Gerald, Learned Hand: The Man and the Judge (1994)