Hand, Learned

Hand was cited by name more often than any other judge by the Supreme Court, and the press called him the tenth justice. The mystery of his career is why he was never appointed to the Court.

Hand was appointed to the U.S. District Court for the Southern District of New York in 1909 by President William H. Taft. Hand, a Harvard law graduate, was, at age thirty-seven, one of the youngest people ever appointed to the federal bench. In 1924 Calvin Coolidge nominated him to the U.S. Circuit Court of Appeals for the Second Circuit. Hand was the senior judge from 1939 until 1951.

The influence between the Supreme Court and Hand’s court flowed in both directions. Hand was cited by name more often than any other judge by the Court due to the depth, breadth, and quality of his opinions. During his career, he wrote almost four thousand opinions on nearly every conceivable subject. Hand’s court had the largest docket of cases of any of the circuit courts. Because the Second Circuit Court is in New York City, it decides much of the business law of the country and about one-fourth of all cases dealing with admiralty law. Hand earned a reputation as a trust buster in several celebrated decisions and is considered the architect of the modern structure of antitrust law. Congress enacted a special statute that gave Hand’s court the final authority in the ALCOA monopoly case when a quorum of Supreme Court justices who had not dealt with the case could not be found.

Hand was involved in one of his most famous cases in his last year before his official retirement, Dennis v. United States[case]Dennis v. United States[Dennis v. United States] (1951). This controversial opinion, centered around First Amendment rights, affirmed the conviction of leaders of the American CommunistCommunism Party and was upheld by the Supreme Court with praise for Hand’s work. He heard cases until 1961 and at the time of his death had served on the federal bench longer than any other person. An entire issue of the Harvard Law Review was devoted to Hand, who was noted for his well-written opinions. The Supreme Court granted certiorari to review a smaller percentage of cases from Hand’s court than for all circuits.

Any discussion of Hand’s career must deal with the question of why the man who had been called “the greatest jurist of his time” was never appointed to the Supreme Court. The theories advanced in explanation include political, institutional, social, and personal reasons. Hand was not active in politics and did not personally know any president. Chief Justice William H. Taft opposed his appointment. Age, geography, religion, judicial ideology, and personality made others more politically attractive appointees.

Further Reading

  • Gunther, Gerald. Learned Hand: The Man and the Judge. New York: Alfred A. Knopf, 1994.
  • Kahn, Michael. “The Politics of the Appointment Process: An Analysis of Why Learned Hand Was Never Appointed to the Supreme Court.” Stanford Law Review (January, 1973): 251-285.
  • Shanks, Hershel. The Art and Craft of Judging: The Decisions of Judge Learned Hand. New York: Macmillan, 1968.

Certiorari, writ of

Circuit courts of appeals

Dennis v. United States

Nominations to the Court