Obama seeks after judicial restraint

Hand had evidently broadened his intellectual horizons; his article showed a heightened empathy for the economic and social arguments supporting a more interventionist role for the state.

— Gerald Gunther, Learned Hand, p. 123

When President Barack Obama mentioned he was looking for judges in possession of "empathy," many political conservatives quickly assumed that empathy was code for "activist." And "activist" in turn is a secret word for "judges who make decisions we don't care for."

The article referenced above appeared in 1908 in the Harvard Law Review, written by Learned Hand, who most observers consider America's greatest judge that never made it to the Supreme Court.

Learned Hand spent his 50-year career as a judge on the federal district and circuit courts in New York, earning a reputation as the very model of "judicial restraint," which we are told by those same conservatives is the conceptual opposite of "judicial activism."

Hand's essay criticized the U.S. Supreme Court for its decision in Lochner v. New York. In Lochner the Court, relying on theories of laissez-faire capitalism, used the doctrine of substantive due process to strike down a law regulating maximum working hours for bakers.

The Lochner majority reasoned that the law ran afoul of a constitutional freedom to make contracts that it discovered somewhere within the Due Process Clause of the 14th Amendment.

The Supreme Court downplayed the "relative strategic advantages of the two parties to the contract," as Hand put it, "of whom one is under the pressure of absolute want, while the other is not."

In other words, Learned Hand's empathy lay to the side of the journeyman bakers, whose interests were protected by their elected representatives, those who had imposed the maximum employee working hours as against the rapacious corporate baking concerns.

While the empathetic Judge Hand leveled more particular legal criticisms of Lochner, his own overarching philosophical concern — as it continued to be throughout his long career — was directed toward the phenomenon of a tiny group of unelected, life-tenured judges capriciously invalidating the democratically expressed will of the people, which Learned Hand regarded as almost a form of tyranny.

Sound familiar? Sounds practically like the late Tom DeLay.*

In opposition to that potential, Hand practiced not "judicial activism" but "judicial restraint," which is precisely the attitude conservatives will tell you they value most in a judge. And in Learned Hand's case, it had quite a lot to do with empathy for the human objects of judicial decisions, a concern which Obama apparently shares.

So when conservatives are ultimately presented with President Obama's forthcoming nominee to the U.S. Supreme Court, perhaps they should be careful about what it is they're not wishing for.

* He's not dead yet; I mean in the sense of "late Beethoven."