Justice Breyer Receives Learned Hand Medal at Law Day Dinner
By James L. Bernard
On April 30, 2014, the Federal Bar Council held its annual Law Day Dinner and presented the Learned Hand Medal for Excellence in Federal Jurisprudence to U.S. Supreme Court Associate Justice Stephen Gerald Breyer.
In accepting the award, Justice Breyer framed his remarks by asking a question, “Why does Law Day matter?” He answered the question by asking us all to think about four quotations, from Presidents Jefferson and Lincoln and two from Judge Hand.
The first was Thomas Jefferson’s opening lines of the Declaration of Independence: “We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed.” As Justice Breyer remarked, these two sentences capture every aspect of the American ideal: equality, unalienable rights, and government by the people.
Turning to President Lincoln, Justice Breyer noted that, in a famous letter to Horace Greeley, editor of the New York Tribune, Lincoln wrote: “If I could save the Union without freeing any slave I would do it, and if I could save it by freeing all the slaves I would do it; and if I could save it by freeing some and leaving others alone I would also do that.” Justice Breyer questioned why Lincoln would have made this statement. He observed that, at the time, America was an experiment like no other. There was, to President Lincoln, nothing more important than preserving the nation. When President Lincoln then delivered the Gettysburg Address, he opened, “four score and seven years ago,” not by looking back to the Constitution, which preserved slavery, but to the Declaration of Independence. And he closed the speech returning to this theme of preserving the nation at all costs, “that this nation, under God, shall have a new birth of freedom – and that government of the people, by the people, for the people, shall not perish from the earth.”
Justice Breyer observed that Judge Hand, in his Spirit of Liberty speech in 1944, asked the question, “What is the spirit of liberty?” In answering, he began that it “is the spirit which is not too sure that it is right….” As Justice Breyer observed, that was an unusual answer. In trying to understand it, Justice Breyer suggested one has to understand the time in which it was said. Our nation was fighting a war with dictators who were certain of themselves and their cause, Korematsu was working its way up to the Supreme Court, and part of what Judge Hand was saying was that we cannot be too sure the great experiment that is this nation will last unless we maintain it by reaffirming our ideals and never being too self-confident we have all the answers.
In this vein, the speech expresses skepticism of the very institutions Judge Hand spent his life serving: “I often wonder whether we do not rest our hopes too much upon constitutions, upon laws, and upon courts. These are false hopes; believe me, these are false hopes. Liberty lies in the hearts of men and women; when it dies there, no constitution, no law, no court can save it; no constitution, no law, no court can even do much to help it. While it lies there, it needs no constitution, no law, no court to save it.” Justice Breyer observed that in these words, Judge Hand recognized what others from around the world who visit with Justice Breyer often ask when trying to better understand how to build a successful judicial system, “Why do people do what you say?” The answer, Justice Breyer remarked, lies in what Judge Hand said in 1944. Because people believe in it.
Justice Breyer closed his remarks by reminding us, as Judge Hand had done in 1944, that to establish a rule of law, we must communicate not to other lawyers and judges, but to the public why respect for the rule of law, and the spirit of liberty it embodies, is so critically important.