Book Reviews HENRY FRIENDLY: GREATEST of the time—a practice that Friendly retained we will never know how Brandeis or Friendly JUDGE OF HIS ERA as a judge. would have addressed the government’s sur- BY DAVID M. DORSEN In the spring of his senior year, Friendly reptitious collection of megadata. The Belknap Press of Harvard University Press, Cambridge, told his parents that, after a year in Europe, Brandeis could be a difficult person. Lewis MA, 2012. 498 pages, $35.00. he would return to Harvard to seek a Ph.D. in Paper, a Brandeis biographer, asked Friendly Reviewed by Richard L. Sippel medieval English history with McIlwain. His to characterize Brandeis as either “aloof” or parents had expected him to attend Harvard “warm.” Friendly answered that neither term He tempered academic brilliance with Law School and then pursue a career that applied, as Brandeis “was kindly but always massive common sense. was more prestigious and lucrative than kept the appropriate distance.” Friendly seems —from the forward by Judge Richard A. teaching. A friend of the family introduced to have been similar to Brandeis in this respect, Posner Friendly to Harvard Law School professor Felix toward his law clerks and even his children. Frankfurter, who suggested that it wouldn’t During his clerkship, Friendly received Henry Friendly, born in 1903, served on hurt for a student of medieval English history an offer from Harvard Law School, which the U.S. Court of Appeals for the Second to know a little law, and that Friendly attend Brandeis urged him to accept. But, Dorsen Circuit from 1959 until his death in 1986. From Harvard Law School for a year. He might like it writes, “[w]hile he had been willing to make 1959 to 1961, his career on the Second Circuit and stick with the law, but it would benefit him financial sacrifices to become a professor of coincided with that of another of the greatest even if he didn’t. history, he was not willing to do the same to court of appeals judges, Learned Hand. Many, Henry entered Harvard Law School in become a professor of law. He liked the law, if not most, judges, lawyers, and law profes- 1925 and stuck with it, becoming president but he loved history.” Friendly seriously con- sors agree that Learned Hand should have of the Harvard Law Review. During his sec- sidered working for the Interstate Commerce been appointed to the Supreme Court. David ond summer at law school, he and classmate Commission, having “met one or two of the Dorsen, the author of this biography, says the Thomas Corcoran (later an advisor to President better examiners [today administrative law same for Henry Friendly, and I agree. Franklin Roosevelt) worked with U.S. Attorney judges], and they seem to be highly competent Genealogies can be interesting, and Dorsen Emory Buckner on a fraud prosecution of for- men who have the joy of making important provides one for Friendly, who was of German- mer Attorney General Harry Dougherty. After decisions. Of course, the pay is small. ...” But Jewish heritage. His ancestors were from graduation, upon Frankfurter’s recommenda- Friendly instead took a job with the prestigious the rural town of Wittelshofen, in Bavaria. In tion, Justice Louis Brandeis hired Friendly law firm of Root, Clark, Buckner, Howland & 1852, to avoid conscription, his grandfather, as a clerk. This was the era when justices Ballantine, which, Dorsen writes, “was one Heinrich Freundlich, joined the great migra- heard arguments in the Capitol’s basement of only two Wall Street firms with a Jewish tion to America, where he became Henry and worked at home, which, for Brandeis, partner, which was important to Friendly.” Friendly. He settled in upstate New York and was a fourth-floor apartment with two small The other firm with a Jewish partner—three, started a family. His son Myer, who became our rooms serving as offices for him and his clerk. in fact—was Sullivan & Cromwell, and it too Henry’s father, was a successful merchant, able Friendly researched and wrote footnotes while offered Friendly a position, but he felt that to afford his gifted son’s educational needs. Brandeis wrote everything else, in longhand, to “they don’t want me but have to make an offer In 1919, at age 16, Henry was accepted to be sent to the Supreme Court’s printer. Dorsen because I was Editor-in-Chief of the Harvard Harvard College, where he was elected to Phi writes that “Brandeis’s thoroughness and dis- Law Review.” Beta Kappa and graduated summa cum laude. cipline in doing his own work contributed to At Root, Clark, the plan was for Friendly to At Harvard, studying history with Charles Friendly’s education.” Howard McIlwain, Friendly became an impas- Dorsen discusses Brandeis’ dissent in sioned historian, and history remained a life- Olmstead v. United States (1928), in which long avocation. For a course with McIlwain, the Court upheld a warrantless wiretap on the Henry wrote a paper on the church and state ground that it had not entailed an actual physi- in England under William the Conqueror, who cal invasion of the home. “As originally draft- reigned from 1066 until his death in 1087. The ed,” Dorsen writes, “Brandeis’s dissent relied paper, which won a $250 prize, showed William on the ground that wiretapping violated state to be a deft politician who avoided fealty to law,” but Friendly persuaded him to add that the pope and weakened the church by mov- wiretapping was a search and seizure under ing secular cases from the ecclesiastic courts. the Fourth Amendment. This was the dissent McIlwain insisted on the use of primary sourc- in which Brandeis said that the Constitution es, and, because some of those that Friendly “conferred, as against the Government, the needed were in Latin, Friendly learned the right to be let alone—the most comprehensive language. McIlwain also urged his students to of rights, and the right most valued by civilized read the words of original documents in the men.” Brandeis’ dissent became the law in way that they were understood by the people Katz v. United States (1967). Unfortunately, 76 • THE FEDERAL LAWYER • DECEMBER 2014 work exclusively for Grenville Clark, “who had the Friendlys socialized,” Dorsen writes, “it Wittgenstein.’” The person most often noted suffered a nervous breakdown and was con- was with other Jewish couples living on the was Oliver Wendell Holmes Jr., with Learned stitutionally unable to delegate work.” Clark’s Upper East Side.” Friendly served as presi- Hand, Felix Frankfurter, Paul Freund, Samuel partners thought that Friendly would be the dent of the Harmonie Club, “a bastion of the Johnson, Frederic William Maitland, and top-notch assistant whom Clark would trust. German-Jewish elite” on Fifth Avenue. He also Jerome Frank frequently reproduced. Some But, after Friendly spent a few months mostly participated in a Saturday luncheon group with entries were quirky: “If you can think about reading the New York Times, he was released federal judges Jack Weinstein, Milton Pollack, something which is attached to something else from Clark’s supervision. Yet, Friendly would and Marvin Frankel, among others. He and without thinking about what it is attached to, later work with Clark on cases involving insur- Sophie also were fond of overseas travel, he by then you have what is called a legal mind.” ance companies, savings banks, and bankrupt plane and she by ship. Sophie used to say: “one (Justice Ginsburg used the same quotation railroads. He ranked Clark with Brandeis and if by land, and two if by sea, and if it’s by air, in footnote 2 of her dissent in Fisher v. Frankfurter as the men who most influenced you don’t go with me.” University of Texas at Austin (2013), which him. Friendly became a partner at Root, Clark struck down the university’s use of race as a In 1928, after Friendly stopped working in 1937, and left the firm in 1945 with a group factor in undergraduate admissions.) Some with Grenville Clark, Elihu Root Jr. assigned of mid-level partners to form Cleary, Gottlieb, entries were deflationary: “A metaphysician him to work for a new client: Pan American Friendly & Cox. Along with being a partner, he who had written on the secret of Hegel was Airways, which had been founded only the also became vice president and general coun- congratulated upon his success in keeping year before. Friendly worked on fending off a sel of Pan Am. A major client for the new firm the secret.” His favorite may have been “Many challenge to a mail route that Pan Am had been was the Guggenheim family, with its extensive questions are solved by walking; Beati omnes awarded in Chile. Pan Am’s president Juan mining interests and philanthropic projects. qui ambulant [Blessed are all who walk].” Trippe preferred Friendly’s quick answers to In 1959, President Dwight D. Eisenhower At age 82, a widower with serious health an equivocating Root. “Within a few years,” nominated Friendly to the Second Circuit. problems and deteriorating sight, Friendly Dorsen writes, “Friendly was handling Trippe’s Connecticut senator Thomas Dodd, however, committed suicide with pills. His obituary in important problems largely on his own.” He had to be persuaded to support Friendly. the New York Times quoted Wilfred Feinberg, also represented the New York Telephone Dorsen writes, “Frankfurter told Friendly that the chief judge of the Second Circuit, as saying Company in a case involving a technical ques- only Senate Majority Leader Lyndon Johnson that Friendly was “one of the greatest Federal tion of “original cost” accounting, and he won could handle Senator Dodd,” so Frankfurter judges in the history of the Federal bench,” and a complex case in the First Circuit under the met with Johnson.