A Justice for All, Kim Isaac Eisler/Learned Hand, Gerald Gunther

...In this way, the biographer can be seen to mimic Brennan who "reached the decision first, then worked on the best reasoning that could 'capture the court.'" The extention of the legal doctrine of a "right to privacy" to euthanasia and other difficult questions is perhaps the unfortunate result of this method...

...Interestingly enough, Hand had his own noble aspirations For example, in a speech that might well have been made by Brennan, Hand claimed that at times I can have the hope that in America time may at length mitigate our fierce individualism, may teach us the knowledge we so sorely lack that each of us must learn to realize himself more in our communal life whose formal expression is and as I believe will continue to be the law Obviously, the difference between Brennan and Hand lies in their choice of means Learned Hand did not feel that judges could mandate change...

...Gunther's portrait of Hand in some ways mirrors the judge's own sense of the importance of details For example, Gunther reminds us that, in more than fifty years as a judge, Learned Hand found only two laws unconstitutional Now, if Gunther's purpose was simply to applaud Hand's practice of "judicial restraint," there would have been little need to look closely at the question of why it was so important to Hand not to overturn legislation Gunther, however, spends a good part of this lengthy work answering just this question Throughout his life, Hand was a skep^^ 24 BOOKS tic about all truths, legal or otherwise, Gunther explains This made Hand extremely cautious, even timid, as he approached his personal affairs As a judge, this skepticism manifested itself in a selfconscious reluctance to correct the constitutional interpretation of legislative majorities, even when he thought those interpretations lacked merit...

...He was a selfstyled "skeptical liberal" whose modest faith in democracy was aptly put when he said that it was "not as bad as it seems " Yet this skeptical endorsement of democracy was more support than Hand was willing to give to the authority of any group of unelected judges—even (he might say especially) if he were included among them Whereas Eisler cites with admiration a 1968 speech in which Brennan talks about the potency of the Fourteenth Amendment when used to remove inequities in society, Hand advocated for a constitutional amendment that would spell out exactly what the vague phrases of this amendment mean In this way, he hoped to limit the discretion available to judges Gunther underscores that it was Hand's skepticism about individual reason that made him reluctant to allow judges to exercise an absolute veto over the collective wisdom of the masses Gunther connects Hand's skepticism with the teachings of his philosophy professors at Harvard, William James and George Santayana...

...As the judges differ, so too do their biographers Kim Eisler, though knowledgeable about legal issues (in 1986 he was appointed to manage the Legal Times), is a journalist best known for the book Shark Tank...

...A JUSTICE FOR ALL William J Brennan, Jr, and the Decisions that Transformed America Kim Isaac Eisler Simon and Schuster, $22, 303 pp LEARNED HAND The Man and the Judge Gerald Gunther, with a Foreword by Justice Lewis F. Powell, Jr...

...In a cunous way, Eisler's book is guilty of the same cart-before-the-horse approach In both cases explanations are demanded that are not forthcoming...

...He adds that "just as Aquinas had written that knowledge arises from reason, it was reason and fairness, not precedent and law, that would dictate Brennan's jurisprudence " Brennan's self-proclaimed ambition while on the bench was "to provide human dignity to every man, woman, and child on the planet...

...Alternatively, one would be hard-pressed to find a better example of Guardian-like behavior than the often countermajontanan decisions of Justice Brennan...

...A reader need bring little or no knowledge of the Supreme Court to Eisler's book and still gain some understanding of Brennan's influence on Amencan life...

...Eisler notes the irony of a Catholic judge instigating a decision establishing abortion rights, yet provides little insight into how Brennan, a devout Catholic, reconciled his religious and legal beliefs Is it enough to simply mention Brennan's oath of office, or to say that "the Constitution was his Bible"9 Such statements reflect a fierce devotion to legal positivism, and hardly conform with Eisler's account of Brennan's fascination with Thomas Aquinas Eisler is a champion, not a critic...

...Alfred A. Knopf, $35, 818 pp Paul A. Sracic Unfortunately, this accessibility is sometimes purchased at the cost of analysis...

...These teachers clearly left their mark, encouraging Hand's already "emerging skepticism " Perhaps one might be able to find the source of Brennan's contrasting confidence in himself and mjudicial absolutes within the teachings of Aquinas, his favorite philosopher Eisler reports that Justice Brennan often spent nights reading the works of Saint Thomas...

...For example, in discussing Justice Brennan's influence on Justice Blackmun's decision in Roe v Wade, Eisler does not even begin to confront the intricate social and legal debates that surround the abortion case...

...Note the "hope" he expresses that the people will reform themselves Inheriting a family tradition of Jeffersonianism, Hand maintained a cautious faith in the democratic spirit, and a concomitant reluctance to allow judges to thwart popular decisions Hand recognized the problem of a tyrannical majority, and was vigilant in protecting freedom of speech, a nght that he felt was crucial to the maintenance of democracy itself Still, for Hand "the proper response to the flaws of democracy was to develop the habits essential to the survival of the democratic system " As the title of Eisler's work indicates, Brennan's goals were more ambitious While thejustice' s aspirations were admirable, the paradox remains that in the aftermath of the Brennan Court's (since, for Eisler, Brennan is the intellectual leader of the Warren, Burger, and Rehnquist Courts) decisions we became an increasingly violent, cnme-ndden people...

...Although it is silly to hold Justice Brennan and the Supreme Court accountable for every negative (or positive) social "transformation," current conditions are still a legitimate standard to apply to the life and work of a justice whose jurisprudence is self-consciously guided by a desire to reshape society And when one uses that standard, a striking contradiction between purpose and result would seem evident Curiously, this problem is not mentioned or anticipated by Eisler Taken together, the decisions of these two legal craftsmen span most of the twentieth century As the century draws to a close, the questions raised by these judges—the limits of democracy, and the role of the judiciary in policing these limits—remain In the end, these books remind us of the complex nature of our democracy, and the corresponding need for us to find ways to develop and sustain republican virtue ? 25...

...Greed, Politics, and the Collapse of Finely Kumble Gerald Gunther, on the other hand, is a law professor and author of a very popular textbook on constitutional law One expects to get from Eisler a very readable popular account and he does not disappoint...

...Perhaps as we continue to engage in what appears to be a national identity cnsis the lives of judges, dedicated as they are to explicating the constitutional principles that hold the nation together, have a tahsmanic affect It is therefore doubly interesting to find in these biographies of William Brennan and Learned Hand, that the judges themselves have such differing perspectives about the Constitution and its interpretation Justice Brennan and Judge Hand (though considered for years to be the "tenth justice," Hand was never elevated to the Supreme Court) are archetypical jurists for the two principal schools of legal thought Those who advocate for "judicial restraint" are fond of quoting the late Judge Hand's statement that he would find it "irksome to be ruled by a bevy of Platonic Guardians...

...In comparison, you come away from Gunther's book feeling as if you have actually met and discussed the issues of the day with the late judge (Perhaps this is the result of Gunther's personal relationship with Hand He served as Hand's law clerk in the early 1950s...