by David M. Dorsen. Cambridge, MA: The Belknap Press of Harvard University Press, 2012. 498pp. Cloth $35.00. ISBN 9780674064393.
Reviewed by Steven B. Lichtman, Department of Political Science, Shippensburg University.
In his Foreword to this excellent and complex book, Judge Richard Posner points out that judicial biographies are a dubious business, ostensibly because the only people trained to understand the complexities of legal thinking – lawyers and legal historians – are usually not trained as biographers.
Posner’s observation was intended to highlight the comparatively weak work that can be produced by legal scholars play-acting as amateur biographers. There is, however, another possibility: the judicial biography written by a skilled legal scholar, which is so heavy on jurisprudential analysis that the life it is supposed to be cataloging tends to get lost in the shuffle.
The risk of a judicial biography turning out this way is acute, even when the subject is as well-known as a Justice of the United States Supreme Court. But the risk is even greater when the subject of the biography is a lower court judge, not least because all judges below the Supreme Court exist in a kind of doctrinal no-man’s-land; their best work is either trumped by a Supreme Court decision on top of it, or diminished by the lack of Supreme Court review.
Certain lower court judges nevertheless make promising biographical subjects, but often for reasons tangential to their jurisprudential output. Learned Hand, subject of a masterful biography by Gerald Gunther, is widely considered to be the greatest American judge not to be named to the Supreme Court, and his role in the development of the law of freedom of speech (including his gentle prodding of Oliver Wendell Holmes) is legendary. Frank Johnson, expertly profiled by Jack Bass, was a central figure “on the ground” during the civil rights struggles of the 1960’s, and is one of only three American judges below Supreme Court level to make the cover of TIME magazine (The other two were both federal district court judges: Harold Medina (S.D.N.Y.) in 1949, when he was presiding over the trial of 11 Communist Party leaders; and John Sirica (D.D.C.) in 1973, when he was presiding over the trial of the Watergate burglars.).
Moreover, there are other seminal 20th century American judges who would seem to rate in-depth biographical treatment, but of whom no such treatment is in print today. The most recent biography of Jerome Frank, not only a great judge but a dominant player in the emergence of the Legal Realism movement, appears to be Robert Glennon’s 1985 account. And there does not appear to be any scholarly study of California’s Roger Traynor, a pioneer in the exposition of the exclusionary rule and a major influence on the Warren Court’s criminal procedure revolution.
The task thus facing David Dorsen as he set out to chronicle the life and career of [*500] Henry Friendly was daunting. A judge on the Second Circuit Court of Appeals from 1959 to 1986 (selected to fill the vacancy created by Harold Medina’s assumption of senior status), Friendly was not a protagonist in any renowned episodes in American history like Johnson, nor was he an expositor of a new strain of legal philosophy like Frank. While he was unquestionably a judicial craftsman of the highest order, his impact on the United States Supreme Court does not approach that of Hand or Traynor. Any appreciation of Friendly, therefore, would likely only find an audience of legal connoisseurs.
It is precisely because of these conceptual difficulties inherent in this project that Dorsen’s triumph in Henry Friendly: Greatest Judge of His Era is so stunning. He has created a rich and meticulous account of Friendly’s judicial output, and the book is an example of how a profile of one figure in the law can engender jurisprudential scholarship of the highest quality.
Although the book’s divisions are not formally delineated, there are four distinct sections. The first covers Friendly’s early life up through his thirty-one years of private practice as a lawyer in New York City. As a student, Friendly was famously dazzling; he attained the highest grade average in the history of Harvard Law School (his grades, adjusted for Harvard’s reconfigured grading standard, were slightly higher than those of Louis Brandeis). Landmarks in Friendly’s professional life include his longtime representation of Pan American Airways and its controversial leader, Juan Trippe, and his co-founding of the major law firm that is today known as Cleary, Gottlieb, Steen & Hamilton.
The second section of the book describes Friendly’s tenure as a judge, focusing on his relationships with his colleagues and his clerks. In these pages, Dorsen does a marvelous job sketching out this brilliant but often prickly man. The diligent preparation that went into this project is self-evident, and Dorsen has benefited significantly from the cooperation of Judge Friendly’s family. Given that, as Dorsen shows, Friendly’s relationship with his family was at times complicated, this must have been a tricky undertaking. These first two sections are comparatively brief; combined, they are much shorter than the extended third section of the book, which is comprised of descriptions and assessments of Friendly’s jurisprudence.
If there was one area in which Dorsen might have productively expanded his analysis, it might be his coverage of the diverse set of people that Friendly mentored throughout his career. Dorsen helpfully includes a list of all 51 of Friendly’s law clerks, and readers will likely be struck by the fact that many of them went onto Supreme Court clerkships that cut across the ideological spectrum: William Brennan and Thurgood Marshall on the left; William Rehnquist and Warren Burger on the right. Indeed, there must be a rich story to be told about a judge who employed as his clerks someone who went on to become one of the nation’s leading liberal legal academics (Bruce Ackerman) and also someone who went on to become the ferociously conservative Chief Justice of the United States (John Roberts). However, the reader is left wishing that Dorsen had told this story in a little more detail.
In all likelihood, readers will have no such wishes about the third section of the book, which is a thorough subject-[*501] specific analysis of Friendly’s judicial output, and it is these chapters that represent the book’s signal achievement. Dorsen covers Friendly’s jurisprudence in a comprehensive variety of subjects, from Bill of Rights law to more workaday matters such as administrative law and federal jurisdiction. Importantly, Dorsen also spends significant time reviewing Friendly’s copious speeches and law review articles, since these are also key indicators of Friendly’s outlook on law and judging.
Much of this source material, especially the material covering nonconstitutional issues, is intricate and at times even byzantine, and readers who lack formal training in legal analysis may find it inaccessible. This is not a book aimed at general readers, and it is to Dorsen’s credit that he resists any possible urge to “dumb down” his analysis, opting instead to stick with a sophisticated lawyerly approach to his subject. Readers who are schooled in these topics will find Dorsen’s work quite rewarding.
Along the way, Dorsen has occasion to discuss some of the most prominent legal-political episodes in New York in the 1970’s, such as the race to succeed John Lindsay as mayor in 1973 and the Bernard Bergman nursing home scandal. In addition, Dorsen gives an extensive treatment of the Second Circuit’s handling of the “Pentagon Papers” litigation, including Friendly’s attempt to persuade his former law partner, Justice John Harlan.
Of course, the story of the Second Circuit’s oral argument and deliberations in the Pentagon Papers case is emblematic of the “no-man’s-land problem” identified above. The only decision that “matters” for most people is the Supreme Court’s eventual fractured ruling in New York Times v. United States. The task for a biographer of a lower court judge discussing a case that made it to the Supreme Court is to explain why the case’s intermediate stages are still important. This is especially true when the lower panel is hearing a case that is a virtual guarantee for certiorari (and the lower panel knows this, in the moment). What Dorsen is able to accomplish in these pages is to illustrate how the actions and questions of judges down below shape the arguments that are eventually advanced at the topmost judicial rung. Dorsen shows how certain arguments were tested and abandoned, and in so doing sheds new and interesting light on a familiar case.
It is this core question – what is the true impact on American law that can be exerted by a judge who did not sit on the highest judicial level? – that informs the final section of the book, which is a brief but resonant assessment of Friendly’s legacy. Arguing that Friendly was not motivated by any overarching constitutional theory or by a loyalty to a particular mode of judicial decision-making, Dorsen nevertheless shows how even one level down from the Supreme Court, Friendly was a powerful source of judicial excellence and innovation. Notably instructive are the data Dorsen presents on how often lower court judges are mentioned by name in Supreme Court opinions, and identified at least five times in law review articles. Unsurprisingly, the most-mentioned judge in both lists is Learned Hand. Yet Friendly ranks second on both lists, and is not far behind Hand; in comparison, the distance between Friendly and third-place John Minor Wisdom (of the Fifth Circuit) is a chasm.[*502]
There is one other component of the final section of the book, and readers who are not completely familiar with Friendly’s life and career may find it acutely jarring. In 1986, one year after the death of his wife, Friendly committed suicide. As Dorsen shows, this was neither a sudden nor unexpected act; for much of his life, Friendly had endured some form of depression (though it fell short of a clinical diagnosis), and in the months following his wife’s death he had spoken openly to friends, colleagues, and family about ending his own life.
It is here that the book struggles some, understandably. To omit this event from a biography would be intellectually dishonest, and one must assume that Dorsen approached this subject with a surfeit of caution, especially given his reliance on Friendly’s family in writing the book. At the same time, while Dorsen does make periodic references to Friendly’s life-long mental and emotional burdens, he does not explore that subject with anywhere near the analytical thoroughness that he employs when exploring Friendly’s legal work. The effect in the end is that Friendly’s decision to take his own life, which was evidently not at all inconsistent with his perspective and personality, comes off as more incongruous than characteristic, despite what appear to be Dorsen’s intentions to the contrary.
This, however, is one of the only soft spots in an otherwise exceptional book. Ultimately, Henry Friendly: Greatest Judge of His Era, is a superb contribution to the field of judicial biography, rigorously researched and intelligently presented.
Bass, Jack. 1993. Taking the Storm: The Life and Times of Judge Frank M. Johnson, Jr. and the South’s Fight. New York: Doubleday.
Glennon, Robert Jerome. 1985. The Iconoclast as Reformer: Jerome Frank’s Impact on American Law. Ithaca: Cornell University Press.
Gunther, Gerald. 1994. Learned Hand: The Man and the Judge. New York: Knopf.
New York Times v. United States 403 U.S. 713 (1971).
Copyright 2012 by the Author, Steven B. Lichtman