Once upon a time, “conservative” when applied to judges actually meant precisely that. You respected precedent—the rulings of other courts. You tried to defer to Congressional language and intent, walling off your own policy predilections. And you understood the limitations and risks of the decidedly un-democratic judicial role. “Conservative” wasn’t about social outcomes and it surely wasn’t about politics.
How far we’ve regressed in only a few decades. Today, under the cover of constitutional law, the Left and the Right each rush to the courthouse to undo battles they’ve lost in the legislature or at the ballot box—whether it’s health-care reform or same-sex marriage. Think what you may about the “liberal” lion Justice William Brennan Jr., who served from 1956 to 1990, or the current “conservative” icon Justice Antonin Scalia, now in his 26th year. They’re both brilliant, but what unites them beyond ideology is a belief in judicial triumphalism—that courts should because they can.
A superb new judicial biography by David Dorsen illuminates what we’ve lost (as well as offers some gossipy tidbits various judges over the decades). Henry Friendly: Greatest Judge of His Era (Harvard University Press) tells the story of a jurist few have heard of—and reminds us what nonpareil judges used to look like. Friendly served on the federal appeals court in Manhattan from 1959 to 1986, when he committed suicide at 82. Early in his career, he showed the potential for greatness: entering Harvard College at 16, graduating from Harvard Law School with its highest average ever (an A++), becoming Professor Felix Frankfurter’s protégé, and serving as a law clerk for Justice Louis Brandeis. He went on to cofound a Manhattan law firm, Cleary Gottlieb, and at the same time served as general counsel of Pan American World Airways.
But when he took the bench (at what these days seems like the ancient age of 56), he displayed talents beyond solving the important securities and administrative law issues from the corporate trenches. His gift, according to Dorsen, a first-rate Washington trial lawyer, was more than mere intelligence, speed, energy and memory. “He understood not only the law,” Dorsen writes, “but the workings of the mind” of people, “at their best and at their worst.” Friendly was “pragmatic” rather than grand. “He was Bach or Rembrandt rather than Stravinsky or Picasso,” Dorsen goes on. “No school of jurisprudence is associated with his name.” Friendly did not paint with broad strokes and it’s fruitless to try to pigeonhole him into a traditional ideo-political camp. He energetically enforced the securities laws on behalf of deceived investors—concerning, for example, “those sickening financial frauds which so sadly memorialize the rapacity of the perpetrators and the gullibility, and perhaps the cupidity, of the victims” —but at the same time ruling against speculators and others whose whining “illustrated the need for putting some brakes on the onrush of civil litigation for violations of the securities laws.”
Among other judges of his time, no one other than Learned Hand was cited in Supreme Court opinions more—and Hand served almost twice as long. Justice Thurgood Marshall considered him his judicial mentor. Scalia, on the right, and retired Justice John Paul Stevens, on the left, both told Dorsen that Friendly, with Hand, were the best two federal judges who never sat on the Supreme Court. Friendly’s greatest legacy may be his law clerks, who’ve become law professors at the elite law schools and partners at the elite law firms. One law clerk is John Roberts, the current Chief Justice of the United States, who has frequently noted how much he revered Friendly. Were that Roberts—and his brethren on the Court—followed his example of judicial modesty a bit more often.
A shorter version of this story was in the April 9, 2012 issue of Fortune.
