Who Was Henry Friendly?
Excerpts from Remarks on the Award of the Henry Friendly Medal to Justice Sandra Day O’Connor
(footnotes omitted)
by Pierre N. Leval, Judge of the U.S. Court of Appeals, Second Circuit
President Ramo called me a couple of days ago with a problem. Young people today (and this includes youngsters up to the age of 50) apparently do not know who Henry Friendly was or why The American Law Institute awards a medal in his name. Would I address those questions tonight?
At first I was astonished by Roberta’s proposition. Friendly was revered as a god in the federal courts from 1958 to his death in 1986.
In every area of the law on which he wrote, during a quarter century on the Second Circuit, his were the seminal and clarifying opinions to which everyone looked as providing and explaining the standards.
Most of us who earn our keep by judging can expect to be deservedly forgotten within weeks after we kick the bucket or hang up the robe and move to Florida. But for one whose judgments played such a huge role, it is quite surprising—and depressing—that the memory of him has so rapidly faded. . . .
Harvard’s great Professor Paul Freund, speaking of Friendly’s student days, described him as a “legend in his own time,” whose attainments were “part of the lore of [Harvard] University.” (This referred to Friendly’s arrival at the college at age 16, his dazzling of the History faculty, which sought to keep him for their own, and his entry instead to the Law School where he had what is believed to be the highest average ever attained.) . . .
When Justice Brandeis had Friendly as his clerk in 1928, recommended by then-Professor Frankfurter, Frankfurter called the Justice to ask how Friendly was doing. Brandeis answered, “Don’t you ever send me another such man as Friendly. If I have another man like him, I would not have to do a lick of work myself.”
And a superb biography of Friendly by David Dorsen, soon to be published by the Harvard University Press, proclaims him the greatest judge of his time.
To those of us who had the privilege of clerking for him, his genius was all the more astonishing—because we saw the ease and speed with which he produced his great opinions. He carried virtually all of law in his head. What is more, in his head he saw clearly the junctions, intersections, overlaps, and disputed territories of the seamless web. And his mind worked with the speed of computer circuitry—that is, on the computer’s good days.
When it came to writing an opinion, Friendly would sit himself at a writing table surrounded by the briefs and appendices. Having quickly read through these, he knew them cold. He would sit with a pad of lined paper and begin to write by hand. As he sat down to the task, the entire opinion had already been organized and written in his head. He would write, single spacing, from the left-hand edge of the page to the right, leaving no room at all for modifications. He would write at approximately the same speed as if he were copying an existing text. Indeed, he was. . . .
In this fashion, he regularly produced, as rapidly written first drafts, perfect final opinions. Apart from the occasional addition of a few certs denied, no changes were needed. For many opinions, the clerks had practically no role. New research was rarely needed—unnecessary, as it was all in his head. Their only significant offices for Friendly were two: to keep him in touch with what the great professors were thinking in the law schools, and occasionally to challenge some part of Friendly’s analysis. . . .
So why has this greatest of judges slid into obscurity barely a quarter century past his death? . . .
Friendly was not a flashy judge; not a headline grabber; not one to look for the quotable one-liner. He shunned rhetorical flourishes designed to make rulings look more obvious, indisputable, or necessary than they are. He presented the questions in their full complexity. His opinions made difficult reading—often requiring intense concentration to understand. And their complexity made them difficult to explain to nonlawyers.
Nor was he a judge (in today’s mold) who sought opportunities to discard governing precedent in favor of results more to his liking. He was constantly engaged in explaining, rationalizing, and improving the state of the law as a living, functioning organism, whose rules have purposes, limits, and interactions with other rules—all of which must be understood to make them function effectively. Not glamorous, but immensely useful.
A final reason for Friendly’s puzzling obscurity today was his powerful inclination toward moderation. He was not interested in intellectually pure, but extreme and impractical, solutions. He was always attuned to the practical consequences of rules of law, and of the tendency of abstract principles to push beyond their utility. He was keenly aware of the value of precedent and of how ill-suited courts and judges are to chart the course for society, except when profound injustices require correction. . . . His rulings were not destined to make headlines—nor to be extolled in editorials. They were, nonetheless, the finest exemplars of the judicial craft.
And so, at his death, 25 years ago, inspired and led by Michael Boudin, who had been Friendly’s best and favorite law clerk—like a son to the judge—the Friendly clerks planned and endowed the Henry Friendly Medal to be awarded from time to time by The American Law Institute for outstanding contributions to the law in Judge Friendly’s great tradition. . . .
It is not my office to sing the praises of the person who receives this honor named for Henry Friendly. That privilege belongs to others. I will, however, allow myself a tiny trespass. Justice O’Connor, your practical wisdom, your sage reluctance to break the molds and toss over precedent, your appreciation of the enormous value of modesty, moderation, and compromise in judging, make you a particularly wonderful and gratifying choice to be honored by The American Law Institute in Henry Friendly’s name.