Political Judging and Judicial Restraint: The Case of Learned and Augustus Hand

Abstract

In recent decades, accusations of partisanship by the U.S. judiciary have intensified. A consequence has been the erroneous framing of judges within the conventional, and some-times epithetical, political binary of liberalism and conservatism. This article argues that the application of such labels has distorted the full thrust of the complex individuals who have constituted the American judiciary and proposes reframing our perception of judges, both past and present, by seeking more viable standards for measuring judicial performance. To do so, it draws on the early twentieth-century examples of Learned and Augustus Hand of the Second Circuit Court of Appeals. Despite being praised as symbols of judicial independence, scholars have often framed the judges in political terms. This article draws on the Hands’ public speeches, publications, and private correspondence to argue that they adopted a non-partisan view of judging that transcended political affiliations and displayed a much deeper consideration about their roles as judges than conventional political labels suggest. By inserting greater nuance into our historical understanding of the delicate relationship between politics and law, we can yet save courts from the threat that politically charged language poses to their legitimacy.