Whither The Great Appellate Judge?
On Wednesday Chief Justice Roberts awarded the Henry J. Friendly Medal (given by the ALI) to Judges Pierre Leval and Michael Boudin, who were both Friendly clerks. The Chief Justice and Judge Leval extolled Friendly’s contributions as a judge, a lawyer, and a scholar, which led me to wonder why there is not someone like him today. The closest example is Richard Posner, but Posner’s influence as an academic far outstrips his importance as a judge. (I’d be hard pressed to name a Posner opinion that is considered authoritative in a given field.)
Why are there no successors to Learned Hand, Benjamin Cardozo, or Henry Friendly? Here are a couple of thoughts:
1. There are a lot more judges now (both state and federal). Consequently, it is much harder for one judge to wield that kind of influence.
2. There is a lot less common law today. Judges have a diminished role because of the growth of the administrative state and because of the expansion of federal law into realms that used to be the province of state courts.
3. The profession is more diverse. Hand, Cardozo, and Friendly all sat in New York, which was widely acknowledged as the center of the legal universe. Not now. There is also less deference to the “Harvard” view of the world that Friendly and Hand embodied.