Who will write a biography of Judge Henry J. Friendly? . . . He seems to have been a fascinating and brilliant figure. – Orin Kerr (2008)
Judge Richard Posner called him the “greatest federal appellate judge of his time.” And while time has taken some of the luster off his renown, his name is still revered in some of the highest quarters. For example, he has been cited by name in more than 125 Supreme Court opinions – including in Martin v. Franklin Capital Corp. (2005), the first opinion for the Court by Chief Justice John Roberts. Since then, he has been mentioned sixteen times in the pages of the United States Reports in other opinions by the Chief Justice (six more) and Justices Alito, Kennedy, Stevens, Ginsburg, and Souter, in cases touching upon everything from federal jurisdiction and securities law to habeas corpus and Fourth Amendment law. Additionally, his fame is kept alive by many of his former law clerks, including the Chief Justice (1979-80) and federal judges Michael Boudin (1964–1965), Merrick Garland (1977-78), and A. Raymond Randolph (1969-70), among others. And Chief Justice Warren Burger once said of him that he could not identify “any judicial colleague more highly qualified to have come to the Supreme Court of the United States than Henry Friendly.”
He is Henry Jacob Friendly (1903-1986), the respected jurist of the U.S. Court of Appeals for the Second Circuit, the court on which he sat from 1959 until 1986. Despondent over his wife’s death and his failing eyesight, Friendly ended his life in 1986, leaving notes in his Park Avenue apartment. (See Paul Gewirtz, “A Lawyer’s Death,” 100 Harv. L. Rev. 2053 (1987)).
Henry Friendly, who succeeded Judge Harold Medina, was a giant in the fields of constitutional law, administrative law, federal jurisdiction, statutory interpretation, securities law, and trademark law. His 1967 book, Benchmarks, was profoundly thoughtful and covered topics ranging from Erie v. Tompkins and Miranda v. Arizona to his views on Learned Hand, Oliver Wendell Holmes, and Louis Brandeis, for whom he clerked in 1927. Likewise, his The Federal Administrative Agencies (1962) was hailed as a brilliant contribution to the legal literature. In 1970 he wrote a careful and cautious draft opinion on abortion, which was the subject of a 2005 lecture by his former clerk, Judge Randolph. Friendly’s jurisprudence, says Professor Stephen Barnett (another Friendly clerk), was “rational, probing, even-handed, wry, skeptical, . . . and distrustful of abstract principles; today it would be called ‘pragmatic.’” His papers are now on file at the Harvard University Library.
While some fine essays have been written about Judge Friendly’s life and jurisprudence, many feared that a full biography might never materialize. But at long last, things stand to change. Late next March a biography of Judge Friendly is scheduled to be published. The author is David M. Dorsen, a seasoned trial lawyer and Harvard Law graduate who served as an editor on the Harvard Law Review, followed by stints as (among other things) an Assistant U.S. Attorney for the Southern District of New York (1964-1969) and Assistant Chief Counsel to the Senate Select Committee on Presidential Campaign Activities (1973-1974).
The forthcoming five-hundred-plus-page biography is titled Henry Friendly: Greatest Judge of His Era. Belknap Press of Harvard University Press is the publisher and Judge Richard Posner has apparently written a foreword to the book, which speaks well for the undertaking. Pace Law Review recently published a sampling of Dorsen’s treatment of his subject.
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While some of Friendly’s scholarly thought ran counter to the progressive perspective of the Warren Court, one can find in it a sober Learned Hand-like approach to judging. As Professor Stephen Barnett put it: Judge “Friendly’s opinions embody and reflect both his own remarkable gifts and the experience of a lifetime of intensely hard work—in class, in law office, and in board room. The issues Friendly decided have been or will be overtaken by events; the way he went about deciding them remains to instruct.” Moreover, his influence on the current Court, especially with Chief Justice Roberts, seems to be increasing.
There is much to say about Henry Friendly – the bright Harvard-educated student who graduated first in his law school class, the lawyer who was one of the founding partners of Cleary Gottlieb Steen & Hamilton, the one-time General Counsel of Pan American World Airways, the revered jurist who authored some one thousand opinions, and the scholar who penned weighty articles such as “The Courts and Social Policy” (33 U. Miami L. Rev. 21 (1978 )). He was also the 1977 recipient of the Presidential Medal of Freedom.
To get a sense of Henry Friendly, consider what he found admirable in Learned Hand. Here is what he said in a 1962 speech at Brooklyn Law School: “Superb as Judge Hand’s achievements were, they are not strange in light of the capacities he brought to the job. Some of these lay in his genes, others were acquired characteristics. A catalogue, necessarily incomplete, would list among them a strong and inquiring mind; a warm and vivid nature; intense concentration and sharp analysis; education in philosophy under James, Royce, and Santayana, and in law under Ames, Thayer, and Gray; a knowledge, both wide and deep, of the world’s great books from the Greeks’ day to our own; the few warm friendships that are all any man can have, and wide acquaintances with seniors, contemporaries, and juniors of many sorts and in varied disciplines; a gift of style or, more accurately, of styles, for his could vary as was appropriate from the simplest to the most sublime; a rare insight into the nature of his fellow men; and, finally, and not the least important, a sense of humor, even – indeed especially – about himself.”
Whether Mr. Dorsen can do for his subject what Gerald Gunther did in his remarkable Learned Hand: The Man and the Judge (1994) remains to be seen. Stay tuned.
Ronald Collins is the Harold S. Shefelman scholar at the University of Washington School of Law.
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