Henry Friendly: The Judge, the Man, the Book
Coombs, Mary, Texas Law Review
Henry Friendly: The Judge, the Man, the Book HENRY FRIENDLY: GREATEST JUDGE OF HIS ERA. By David M. Dorsen. Cambridge, Massachusetts: Harvard University Press, 2012. 512 pages. $35.00.
Reviewed by Mary Coombs*
For those of us who neither live in the rarefied world of the famous nor are aficionados of self-published memoirs by the earnest and obscure, reading a biography of someone we knew personally is a rare event. David Dorsen's biography of Judge Friendly-in addition to being a surprisingly engrossing read for anyone1-was, for someone like me, both confirmatory and revealing.
The reason to remember Henry Friendly and write-or read-his biography is Friendly the Judge.2 The subtitle calls him the "greatest judge of his era." With this assessment (if not with all his holdings), I can heartily agree.
While one often associates Friendly with a mastery of the law, he also had a concern for getting the facts right, which was somewhat unusual for an appellate judge.3 He would pore through the record where the lawyers didn't cite to what seemed important to him. I believe that this focus on facts sometimes bridged his concern for reaching an outcome that seemed compatible with justice to the parties and his desire not to distort the law for future cases.4
Dorsen provides an example of Friendly's fact consciousness in his discussion of the Biaggi case.5 Friendly wrote an opinion that released the transcripts of a grand jury investigation only after he knew what the grand jury transcripts revealed; namely, confirming his suspicion that Biaggi was trying to manipulate the courts with his motion to release in part the transcripts of the grand jury that was investigating him.6
During my term, we had a case where a would-be author sought the release of the Bureau of Alcohol, Tobacco, and Firearms "raid manual" under the Freedom of Information Act.7 Judge Friendly's concurring opinion found that the manual was protected by one of the exceptions in the statute and thus said that the plaintiffhad no standing to question the constitutionality of the procedures set out therein.8 Before he wrote that opinion, however, he had instructed me to review the manual and inform him if it did seem to authorize any unconstitutional actions by agents. I believe it mattered to him that, in my estimation, the manual did not.9
His working process not only produced masterful opinions with great rapidity, but it also was as good an intellectual training ground as any clerk could receive.10 Immediately after the day's oral arguments, we were called seriatim to discuss the cases for which we were responsible-a discussion that began with him asking us what we thought.11 If one could give an account of how the case should be decided that met with his approbation (if not his concurrence), one felt an extraordinary sense of achievement (or at least relief for not having stumbled).12 And, as Dorsen notes, that discussion was immediately followed by the judge dictating his voting memo to his secretary.13 These were inevitably the first memoranda distributed to the other judges and, one assumes, they guided the way the case would be analyzed.14 Many judges rightly assumed that they should intellectually dominate their clerks; I think Friendly made a similar assumption about most other judges.
The description of Friendly as "Greatest Judge of His Era," however, rests not merely on the judge's working method or on his focus with facts, but also on his contribution to jurisprudence.15 The term brings to mind the iconic great judge of legal theory, Ronald Dworkin's Hercules, who can (as all judges ideally should) find the single best solution to hard cases-one that is consistent both with a defensible interpretation of existing law and with a coherent understanding of deep principle.16 It also echoes Duncan Kennedy's counter image of the judge as half-consciously following his ideological predispositions in interpreting law in hard cases. …