Henry Friendly, Greatest Judge of His Era

Chapter 9:First Amendment

Friendly was given virtually no instruction at Harvard Law School regarding the constitutional-law issues prominent in the past half century. Instead, the focus was on the Constitution’s Commerce Clause, which is reflected in his only surviving Harvard Law School examination. During his year with Brandeis, he worked on a few important Bill of Rights cases, including wiretapping in Olmstead v. United States. His private practice was virtually bereft of constitutional questions.

Although he wrote a number of opinions, most of Friendly’s contribution to constitutional law was in his extrajudicial writings. His guide on what to write about was simple: “It was because I got annoyed with something.” Whether it was a lecture or an opinion, he paid careful attention to the language and history of the Bill of Rights and the Civil War Amendments, infused with McIlwain’s lesson to read documents as did the people at the time they were written. His approach was highly textual, at times exhibiting strains of originalism, although also demonstrating concern for individuals’ fundamental rights. While he employed the Constitution cautiously, he was prepared to recognize a private area in both civil and criminal cases, albeit at times narrow, from which the government was barred. If pressed to affix a label, one would say he was most of all a conservative in the traditional mold, judicially restrained and reserved, but not always agreeing with either the judicial or political right. Indeed, the number of times he eschewed the conservative position will surprise those who have based their appraisals on his meticulous reading of the Fifth Amendment and his parsimonious view of the scope of habeas corpus. In today’s parlance he would be a moderate or centrist on most constitutional issues, identified with John Marshall Harlan, Lewis Powell, Sandra Day O’Connor, and Anthony Kennedy rather than William Rehnquist, John G. Roberts Jr., Antonin Scalia, and Clarence Thomas.

Friendly was less interested in the First Amendment than in several other constitutional provisions. He gave one lecture on the First Amendment sponsored by the Connecticut Law Review on April 18, 1969, three months after President Richard Nixon had taken office. Despite possible harm to his prospects for nomination to the Supreme Court, Friendly boldly chastised those who claimed that it was inappropriate to criticize the Court’s decisions, even sharply. His judicial opinions revealed that he was willing to let important institutions, such as the government, a university, or the bar, make judgments in areas duly assigned to them by the Constitution, statutes, or policy. Pornography and libel cases did not involve the same institutional interests, and here he tended to favor freer expression of ideas. His view of the Establishment of Religion Clause of the First Amendment was cut from a different cloth, and he opposed most governmental attempts to accommodate religious observance. In fact, he had nothing good to say about organized religion.

During the tumultuous time of protests against the Vietnam War, prospective lawyers, relying on the First Amendment’s guaranty of freedom of speech, challenged in Law Students Civil Rights Research Council, Inc. v. Wadmond a number of questions New York State asked applicants to the bar that were designed to ensure that they possessed the knowledge, skill, and character to become lawyers. A decade earlier the Supreme Court had limited the qualifications a state could require of bar applicants to those having a rational connection with the applicant’s fitness and capacity to practice law. Civil liberties organizations sought to limit further the scope of the inquiry. Although the decision by a lower federal court was not important to them when the Supreme Court was governed by a liberal majority, during the course of the case Chief Justice Warren Burger was substituted for Earl Warren and then-conservative Harry Blackmun for Abe Fortas. Plaintiffs’ chances of prevailing dropped, and a victory before Friendly became important.