Learned Hand: The Man and the Judge.

Gerald Gunther Alfred A. Knopf, 201 East 50th St., New York, NY 10011. 818 pp., $35. Reviewed by Donald A. Dripps

Gerald Gunther, professor of constitutional law at Stanford University Law School, has given us an exhaustive yet readable biography of the legendary judge. The length of Hand's career--he became a federal judge six years after the Wrights' first flight at Kitty Hawk and served until his death four years after Sputnik--might have daunted any but the most dedicated biographer. During that long career, Hand wrote 4,000 opinions and frequent articles and carried on a vast correspondence. (The Learned Hand Papers include 100,000 items.) Given this extensive source material, Gunther, who clerked for Hand in 1953-54, deserves praise simply for producing a manuscript. The author, however, delivers not just a book, but a wonderful book, as pleasurable to read as it is authoritative.

Hand's reputation is so firmly established that interest has focused not on whether he was a great judge but rather on the implications and mysteries of his greatness. What about Hand made him great? Why, given his enormous reputation, was he never appointed to the Supreme Court? And how could a great judge question the result in Brown v. Topeka Board of Education?

Every law student knows Learned Hand; his opinions are casebook staples. Those decisions may have worked a wiser justice than lesser jurists might have delivered. The appeal of Hand's work, however, has more to do with style than with substance. How he could write! The distinctive rhetoric stands apart from and above that of ordinary cases. Nor did Hand confine his eloquence to cases; The Spirit of Liberty, an address he gave at a 1944 immigration ceremony in New York City, for example, is arguably the best short American political speech since the Gettysburg Address. Gunther offers some important insights on the sources of the Hand style.

Gunther reveals that Hand was profoundly insecure. He was never sure that he had lived up to the example set by his father, who died when Hand was 14. Doubt about his potential for work in philosophy led him to law school. He agonized over whether accepting a judicial appointment was a way of evading the competition of private practice. He feared that preoccupation with his work was the cause of his wife's long sojourns in the country, where she had an intimate (if not sexual) relationship with another man.

Insecurity bred perfectionism. Hand wrote his opinions dialectically, insisting on criticisms from his clerk after drafting every few paragraphs, then redrafting and arguing again. "[I]n the most difficult cases, he would go through as many as thirteen draft opinions with many crossings-out and much rewriting before he permitted his secretary to prepare a typewritten version and distribute it to his fellow judges."

Hand wrote constantly. His memorable style, which often seems to flow without effort, was in fact the product of dogged effort and ceaseless practice.

Why wasn't Hand named to the Supreme Court? His best chances came in 1930 and 1942, with the respective resignations of Chief Justice William Howard Taft and Justice James Byrnes. As Gunther shows, a variety of factors--political and personal--were in play on both occasions. On a political level, Hand was too liberal for Hoover and too conservative for Roosevelt. On a personal level, Hand's attacks on the Supreme Court's Lochner-era jurisprudence had earned the enmity of Taft, who retained considerable influence in Republican circles even at the time of his resignation from the Court. Hand himself felt that Roosevelt "has a sensitive nose for people, and my ways of going at things are so different from his that he may well have felt me alien; I fancy he did."

In his 1958 Holmes Lectures, Hand argued for an extremely limited scope of judicial review. The lectures, delivered near the close of his life, were and remain controversial. Had Hand changed his once-progressive views? Or was this the same Hand who had condemned the Lochner Court's assertion of the power to invalidate statutes on the ground of substantive due process?

Hand, Gunther emphasizes, would have accepted Brown if that case had announced a general principle of racial equality, rather than one limited to public education. In the immediate aftermath of Brown it was by no means clear how far the principle it declared would extend. Gunther attributes Hand's skepticism to Felix Frankfurter, whose correspondence to Hand repeatedly conveyed Frankfurter's view that Brown had been an ad hoc rather than a principled ruling. Gunther also stresses that Hand acknowledged a role for the Court in protecting the freedom of expression.

These qualifications are well taken; even so, advocates of judicial activism on behalf of individual liberty still face in Hand a formidable adversary. The later Hand's skepticism about judicial review is fully consonant with the earlier Hand's mistrust of substantive due process. Civil libertarians may not regret the accidents of history that kept him off the Court.

Beyond the interest lawyers have in the life of a great judge, this book should be of special interest to anyone with an interest in modem U.S. history, legal or otherwise. The figures in Hand's story include George Santayana and James Bradley Thayer, Walter Lippmann and Franklin Delano Roosevelt, Oliver Wendell Holmes and Jerome Frank. From the Progressive Era to McCarthyism, Hand had a part in most of the great political struggles of his times. Gunther has rendered a superb portrait of his subject, and in the process presents a virtual newsreel of 20th-century history.