Learned Hand - Postwar Years

Postwar Years

Learned Hand's 75th birthday in 1947 was much celebrated in the press and in legal circles. C. C. Burlingham, Hand's former sponsor, for example, called him "now unquestionably the first among American judges". Hand remained modest in the face of such acclaim. He continued to work as before, combining his role as presiding judge of the Second Circuit with his engagement in political issues. In 1947, he voiced his opposition to a proposed "group libel" statute that would have banned defamation of racial or minority groups. He argued that such a law would imply that intolerance could base itself upon evidence. The effect of the proposed prosecutions, he said, would be "rather to exacerbate than to assuage the feelings which lie behind the defamation of groups".

In the postwar period, Hand shared the dismay of his compatriots about Stalinism and the onset of the Cold War. At the same time, he was sensitive to the domestic problems created by what he saw as a hysterical fear of international Communism. Already in 1947, he noted that "the frantic witch hunters are given free rein to set up a sort of Inquisition, detecting heresy wherever non-conformity appears". Hand was distressed by the crusade against domestic subversion that became part of American public life after the war. He particularly despised the anti-Communist campaign of Senator Joseph McCarthy that began in 1950 and which became known as McCarthyism. Though Hand expressed his horror of McCarthyism privately, he hesitated to do so publicly because cases arising from it were likely to come before his court.

During this period, Hand took part in three notable cases that posed a particular challenge to his impartiality on Cold War issues: United States v. Coplon, United States v. Dennis, and United States v. Remington. Department of Justice worker Judith Coplon had been sentenced to 15 years in prison for stealing and attempting to pass on defense information. In 1950, her appeal came before a Second Circuit panel that included Learned Hand. It rested on her claim that her rights under the Fourth Amendment had been infringed by a warrantless search, and that details of illegal wiretaps had not been fully disclosed at her trial. Hand made it clear that Coplon was guilty of the charges. However, he rejected the trial judge's conclusion that a warrantless arrest had been justified. He ruled therefore that papers seized during the arrest had been inadmissible as evidence. The trial judge's failure to disclose all the wiretap records, Hand concluded, made a reversal of Coplon's conviction necessary. In his written opinion, Hand stated that "ew weapons in the arsenal of freedom are more useful than the power to compel a government to disclose the evidence on which it seeks to forfeit the liberty of its citizens." Many followers of the trial sent Hand hate mail for his decision. By contrast, in the 1950 case United States v. Dennis, Hand affirmed the convictions under the 1940 Smith Act of eleven leaders of the Communist Party of the United States for subversion. He ruled that calls for the violent overthrow of the American government posed enough of a "probable danger" to justify the invasion of free speech. After the case, he was attacked from the opposite political direction for appearing to side with McCarthyism.

In 1953, Hand wrote a scathing dissent from a Second Circuit decision to affirm the perjury conviction of William Remington, a government economist accused of Communist sympathies and activities. In 1951, the same panel had overturned Remington's previous conviction for perjury, but in the appeal of the later case Hand was outvoted two to one. The prosecution produced stronger evidence against Remington this time, much of it obtained from his wife. Sentenced to three years imprisonment, Remington was murdered in November 1954 by three fellow inmates, who beat him over the head with a brick wrapped in a sock. According to Hand's biographer Gunther, "The image of Remington being bludgeoned to death in prison haunted Hand for the rest of his life."

Only after stepping down as a full-time judge in 1951 did Hand join the public debate on McCarthyism. Shortly after announcing his semi-retirement, he gave an unscripted speech that was published in The Washington Post, an anti-McCarthy newspaper.

y friends, will you not agree that any society which begins to be doubtful of itself; in which one man looks at another and says: "He may be a traitor," in which that spirit has disappeared which says: "I will not accept that, I will not believe that—I will demand proof. I will not say of my brother that he may be a traitor," but I will say, "Produce what you have. I will judge it fairly, and if he is, he shall pay the penalties; but I will not take it on rumor. I will not take it on hearsay. I will remember that what has brought us up from savagery is a loyalty to truth, and truth cannot emerge unless it is subjected to the utmost scrutiny"—will you not agree that a society which has lost sight of that, cannot survive?

Hand followed this up with an address to the Board of Regents of the University of the State of New York the next year. Once again, his attack on McCarthyism won approval from many liberals. Asked to send a copy of his views to McCarthy, Hand replied that he had Richard Nixon in mind as well. Despite his concerns about Nixon as vice president, Hand voted for Dwight Eisenhower in the 1952 election, later crediting Eisenhower with bringing about McCarthy's downfall in 1954.