Learned Hand - Between The Wars

Between The Wars

The next Second Circuit vacancy arose in 1921, but with the conservative Warren G. Harding administration in power, Hand did not put himself forward. Hand's reputation was such that by 1923, Supreme Court Justice Oliver Wendell Holmes, Jr. wanted him on the Supreme Court, and in 1924 Harding's successor, Calvin Coolidge, appointed Hand to the Second Circuit. It was a sign of Hand's increased stature that figures such as Coolidge and Chief Justice William Howard Taft now endorsed him. Coolidge sought to add new blood to a senior judiciary that was seen as corrupt and inefficient. In 1926 and 1927, the Second Circuit was strengthened by the appointments of Thomas Walter Swan and Hand's cousin Augustus Noble Hand.

After the demise of the Progressive Party, Hand had withdrawn from party politics. He committed himself to public impartiality, despite his strong views on political issues. He remained, however, a strong supporter of freedom of speech, and any sign of the "merry sport of Red-baiting" troubled him. In 1920, for example, he wrote in support of New York Governor Al Smith's veto of the anti-sedition Lusk Bills. The New York Assembly had approved these bills in a move to bar five elected Socialist Party legislators from taking their seats. In 1922, Hand privately objected to a proposed limit on the number of Jewish students admitted to Harvard College. "If we are to have in this country racial divisions like those in Europe," he wrote, "let us close up shop now".

In public, Hand discussed issues of democracy, free speech, and toleration only in general terms. This discretion, plus a series of impressive speaking engagements, won him the respect of legal scholars and journalists, and by 1930 he was viewed as a serious candidate for a seat on the Supreme Court. His friend Felix Frankfurter, then a Harvard Law School professor, was among those lobbying hard for Hand's appointment. President Herbert Hoover chose to bypass him, possibly for political reasons, and appointed Charles Evans Hughes, who had previously served on the Court for six years before resigning to become the Republican candidate for President in 1916, as Chief Justice. With Hughes and another New Yorker, Harlan Fiske Stone, on the Court, the promotion of a third New Yorker was then seen as impossible.

Hand had voted for Hoover in 1928, and he did so again in 1932; but in 1936, he voted for the Democrats and Franklin D. Roosevelt, as a reaction to the economic and social turmoil that followed the Wall Street Crash of 1929. With the Great Depression setting in, Hand favored a policy of interventionist central government. He came to accept Frankfurter's view that redistribution of wealth was essential for economic recovery. Hoover resisted this approach, favoring individualism and free enterprise. Roosevelt, on the other hand, promised the voters a New Deal. They elected him on a platform of strong executive leadership and radical economic reform. Hand voted for Roosevelt again in 1940 and 1944, but he remained vigilant on the constitutional dangers of big government. Like others, including Walter Lippmann, he sensed the dictatorial potential of New Deal policies. He had no hesitation in condemning Roosevelt's 1937 bill to expand the Supreme Court and pack it with New Dealers.

Hand was increasingly called upon to judge cases arising from the flood of New Deal legislation. The line between central government authority and local legislation particularly tested his powers of judgment. In 1935, the case of United States v. Schechter came before the Second Circuit. Hand and his two colleagues had to judge whether a New York poultry firm had contravened New Deal legislation on unfair trade practices. They ruled that the National Industrial Recovery Act did not apply to the Schechter Poultry Corporation, which traded solely within the state. "The line is no doubt in the end arbitrary," Hand wrote in a memorandum, "but we have got to draw it, because without it Congress can take over all the government." The Supreme Court later affirmed Hand's decision.

Hand became an acknowledged expert on New Deal statutes. He relished the challenge of interpreting such legislation, calling it "an act of creative imagination". In a 1933 broadcast, he explained the balancing act required of a judge in interpreting statutes:

On the one hand he must not enforce whatever he thinks best; he must leave that to the common will expressed by the government. On the other, he must try as best he can to put into concrete form what that will is, not by slavishly following the words, but by trying honestly to say what was the underlying purpose expressed.