Henry Friendly
Senior Judge of the United States Court of Appeals for the Second Circuit
In office
April 15, 1974 – March 11, 1986
Chief Judge of the United States Court of Appeals for the Second Circuit
In office
July 20, 1971 – July 3, 1973
Preceded byJ. Edward Lumbard
Succeeded byIrving Kaufman
Judge of the United States Court of Appeals for the Second Circuit
In office
September 10, 1959 – April 15, 1974
Appointed byDwight D. Eisenhower
Preceded byHarold Medina
Succeeded byEllsworth Van Graafeiland
Magisterial offices
Chief Judge of the Special Railroad Court
In office
1974–1986
Member of the Judicial Conference of the United States
In office
1971–1973
Personal details
Born
Henry Jacob Friendly

(1903-07-03)July 3, 1903
Elmira, New York, U.S.
DiedMarch 11, 1986(1986-03-11) (aged 82)
New York City, U.S.
Cause of deathSuicide by drug overdose
Political partyRepublican[1]
Spouse
Sophie Pfaelzer Stern
(m. 1930)
EducationHarvard University (AB, LLB)
AwardsPresidential Medal of Freedom (1977)

Henry Jacob Friendly (July 3, 1903 – March 11, 1986) was an American jurist who served as a federal circuit judge on the United States Court of Appeals for the Second Circuit from 1959 until his death in 1986.[2] Friendly was one of the most prominent U.S. judges of the 20th century,[3] and his opinions are some of the most-cited in federal jurisprudence.[4]

Early life

Friendly was born in Elmira, New York, on July 3, 1903, the only child of a middle class German-Jewish family.[5] He was descended from Southern German dairy farmers in Wittelshofen, Bavaria, that had adopted the surname of Freundlich. Josef Myer Freundlich (1803–1880), Friendly's great-grandfather, was a prosperous farmer whose estate burned down in 1831; after being denied help by his neighbors because he was Jewish, Josef grew affluent from livestock dealing. Heinrich Freundlich, Friendly's grandfather, immigrated to the United States in 1852 to avoid conscription and anglicised the surname to Friendly. Heinrich worked as a businessman in Cuba, New York, beginning as a peddler. He progressed to own a carriage factory before the birth of Friendly's father, Myer Henry Friendly,[a] who would migrate to Elmira in his youth.[7]

Friendly demonstrated precocious abilities in reading and diction at a young age. By age seven, he could read any book intended for adults. His mother, Leah Hallo, was a serious and reserved bardolater with an excellent memory who became skilled at contract bridge. She played an intimate role in his upbringing, devoting herself to raising her son and taking him to see evening performances of Gilbert and Sullivan; Friendly later recalled, "there was absolutely nothing she wouldn't have done for me."[8] His father, by contrast, was strict and distant with an inclination towards perfection, impressing high standards of work upon him. Their marriage was initially an unhappy one, with Leah leaving at one point to move in with her sister, although Myer eventually persuaded her to return.[9] Regarding their collective relationship, Friendly remarked that "we didn’t have a very close family."[10]

The Friendly family resided in the primarily Christian, western side of Elmira, opposite of the eastern Jewish community. They held various civic positions in town, lived comfortably, and were known as active members of the local German-Jewish population.[11] A monograph in Elmira commemorates Friendly's grandfather, who donated generously to the Jewish community, as "one of the leading men of Elmira in the late nineteenth century."[8] Though not devoutly religious, the family attended a Reform temple alongside other German Jews, and they held a bar mitzvah for Friendly. Myer believed that anti-semitism was commonplace in Elmira, though his son could not remember any instances of prejudice except for the lack of Jews in the country club and their exclusion from Christian neighbors. Friendly himself had predominantly Christian friends, a quality which was uncharacteristic of other Jews.[12] Later in life, he would find no redeeming qualities in organized religion.[13]

As a child, Friendly was docile and obedient, gaining a reputation for his earnest behavior.[10] Outside of school, he frequented the outdoors, often walking to Mark Twain's study,[b] and visited a great-aunt who played scores of Richard Wagner. He committed himself to reading avidly and enjoyed playing baseball, though he was also overweight and bore unathletic traits. Myer, a sportsman and fisherman, took his son on forays that Friendly would ultimately come to reject, which disappointed him. Friendly also lacked dexterity; after puncturing his hand with a pencil, he lost function of his left-hand little finger and contracted a serious case of blood-poisoning. Eye problems developed during boyhood, which would advance to retinal detachment in 1936, further complicated his health. Difficulties with vision would follow him into adulthood, necessitating surgeries accompanied by multiple hospitalizations.[15]

Education

The Friendlys wintered in Florida, causing him to miss periods of school. Nonetheless, Friendly skipped multiple grades and took an interest in American history and English literature, though avoided science; his particular interests were in English writers George Eliot and William Makepeace Thackeray. He attended the Elmira Free Academy, excelling academically as an involved student, and came to praise the system there. He fondly remembered the school as a place with "very devoted and dedicated teachers who worked for a pittance."[14] Friendly was the editor-in-chief of the academy's newspaper, The Vindex, in addition to having engagements on the student council, debate team, and its "Class Song and Motto Committee."[16]

Friendly (topmost right) pictured in 1917 with other members of the Elmira Free Academy Debate Society

At the onset of World War I, Friendly eagerly supported the German cause, but switched sides when the United States entered the war. He abandoned his initial support for Germany and began soliciting war bonds in nearby towns while still enrolled at Elmira. In 1919, he graduated from the academy as valedictorian, attaining the highest scores ever recorded in the New York Regents Examinations.[17][18] It was at Elmira that Friendly developed core personal values, learning to value culture and responsibility. However, his reclusivity, combined with a lack of close relationships, contributed to emotional issues that would persist over the course of his life. During this period, he experienced his first serious exposure to law as a young teenager while serving as an expert witness in a trial brought by his father for a breach of warranty. By means of a friend's father, a lawyer, he learned to respect law and societal boundaries.[19]

Cornell University in Ithaca, New York, had been the most convenient choice for college, though Friendly opted instead to matriculate at Harvard College, drawn by the school's expansive catalogue. Emergent challenges with his vision nearly delayed his college entry by a year. He enrolled in the fall of 1919 at age sixteen and passed a competitive examination which allowed him to skip a basic English course. The university's only student from Elmira, he came to be alienated from other freshman students, who were two years his senior and less involved intellectually.[20] The campus social scene at the time was strictly segregated among wealthy Christian families, who often coalesced in isolated clubs.[21]

Friendly was a taciturn undergraduate who lacked social skills.[c] John Mason Brown unsuccessfully offered him a position on The Harvard Advocate literary magazine, which he rejected owing to a dislike of creative writing. He joined the university's debate team, though resigned for better commitments. Despite an absence of fellowship, Friendly continued to excel in his studies with a focus in history, philosophy, and government, achieving superlative grades every year. He cherished the intellectual challenges of understanding history, a pursuit reinforced by Harvard's modern approach that emphasized the field's intellectual and political aspects. President Lowell taught his freshman course in government.[22] Friendly's successes in the classroom were noticed by his peers. Future attorney Albert Gordon, a classmate at Harvard, later reflected upon his reputation: "we thought of him not only as the smartest in the class but the smartest at Harvard College."[23]

In 1923, Friendly graduated with an A.B., summa cum laude, and was elected to the Phi Beta Kappa honor society. During his junior year, he had received the prestigious Bowdoin Prize for a paper entitled "The Fall of Naples: An Episode in the Risorgimento" which examined Italian statesmen Camillo Benso and Giuseppe Garibaldi.[24] Friendly developed a passion for European history through courses with Charles Homer Haskins, Archibald Cary Coolidge, and Frederick Jackson Turner. He was also exposed to European diplomatic history under William Langer.[25] In his senior year, Friendly took inspiration from Charles Howard McIlwain, whose course in medieval England he credited with being "by all odds the greatest educational experience I had at Harvard College."[26] The historian broadened his knowledge of Latin and stressed the need to interpret documents as they were originally understood, a lesson adopted by Friendly when he ascended to the bench years later.[27]

Postgraduate study

Inspired by McIlwain, Friendly intended to pursue a Ph.D. in medieval history after graduation. He aspired to be a historian, a goal which conflicted with his parents' hopes for him to enroll in Harvard Law School, and was assured by professor Frederick Merk that he would be appointed to the university's faculty.[28] Merk had judged an answer given by Friendly in one examination as worthy of being published in an academic journal.[25] Frightened by the prospect of losing their son's legal career, the family steered connections to contact Judge Julian Mack "about this dreadful thing that was about to occur."[29] Following his recommendation, they arranged for Friendly to meet law professor Felix Frankfurter with the aim of dissuading him from pursuing a career in history. Frankfurter convinced Friendly to take up a Shaw Fellowship, which enabled postgraduate studies in Europe for a year,[d] then attend the Law School.[31] Frankfurter reasoned he could study "medieval history, civil law, or nothing at all" during the fellowship, then leave to study medieval history should he dislike the experience.[32]

From 1923 until 1924, Friendly sojourned in Europe. He witnessed the alarming inflation and social unrest that grappled the Weimar Republic, then traveled to Amsterdam and thirdly to Paris, where he attended the École pratique des hautes études for a few months. He found the lectures on law there unimpressive, admitting that "between the two, I much preferred history...if anything could give one a distaste for law that was it."[33] Much of his time was spent on reading, attending operas, and walking. After stopping in Italy, his studies led him to the universities of Oxford and Cambridge in England. His parents accompanied him to celebrate his twenty-first birthday in Nuremberg. By the time the year ended, Friendly still found himself aimless, but returned to the United States to enter law school.[34]

Law school

In 1925, Harvard Law School was a growing institution which expanded to house 1,440 students. Under dean Christopher Columbus Langdell, the school devised the "case method" of teaching which concentrated on actively engaging students in a Socratic dialogue. Given stories of laborsome work and a third of first-year students withdrawing, Friendly arrived unsure of success, cautiously dedicating only one or two nights a week to social activities to manage the pressure. But on his first day at the Law School, he made a tangible impact that affirmed his confidence and gained him recognition.[35] In one lecture, Manley Ottmer Hudson, his torts professor, asked in what language an early English case was written. After students guessed wrongly, Hudson then prompted Friendly, who successfully identified it as Law French, an archaic language. A skeptical Hudson went to the archives and produced the original medieval text, which Friendly proceeded to translate for the class. "So that really made my reputation at the Harvard Law School, on the first day," he recalled.[36][e]

Friendly, seen while still a Harvard Law student, pictured in a 1927 edition of The Boston Globe

Although he was not enrolled in any of his classes, Friendly was frequently invited by Frankfurter to join him. The professor made the young student one of his favorites, and it was due to Frankfurter that Friendly became interested in federal jurisdiction and emerging field of administrative law. Other professors, struck by Friendly's command over the material, praised his ability.[38] They included Thomas Reed Powell, a proponent of legal realism, as well as formalists Samuel Williston and Joseph Beale, who often had to contend with the novel theories of Zechariah Chafee and Roscoe Pound.[39] After one examination, Calvert Magruder, Friendly's first-year teacher in contract law, left him a congratulatory note: "[I have] never run across as beautiful [an exam] book as yours in Contracts... [nor one with your] sense of values and emphasis, the logical construction of your answers, your compactness & facility of expression."[40]

Friendly finished first in his class his first year and was honored as a member of the Harvard Law Review. He was elected the journal's president his second year,[f] writing to his parents, "it is certainly the greatest honor in the Law School, except for the Fay Diploma—which is awarded at the end of three years, and I am particularly gratified in that very few Jews have ever held the office."[42] Never before had he worked harder than during his time on the Law Review. Weekdays were dedicated to editing and the weekends on coursework. With Herbert Brownell Jr., the editor-in-chief of the Yale Law Journal, he drafted the first edition of The Bluebook.[43]

Along with the existing commitments to the law review, Friendly was an active member of the Ames Moot Court Competition, where he won the Marshall Prize for its best brief. He came first in his class his second year despite investing less time to schoolwork.[44] That summer, he received an invitation from Frankfurter, who was teaching at Columbia Law School, to join him in New York City. Frankfurter had been living there with Emory Buckner; feeling that teaching would not sufficiently occupy him, he arranged for Friendly, along with classmates James Landis and Thomas Corcoran, to room together in the city. The group would make acquaintances with distinguished jurists Learned Hand, Augustus Noble Hand, Julian Mack, and Charles Culp Burlingham. After Buckner requested the assistance of two "bright young men," Frankfurter sent Friendly and Corcoran to aid him with his prosecution of Harry Daugherty at the New York U.S. Attorney's office.[45]

In 1927, Friendly graduated as class president with an LL.B., summa cum laude.[46] His academic record was the best in the history of the school, with the achievements he amassed earning him a legendary status that became part of the university's folklore.[47] Every honor the school had to offer was bestowed upon him.[48] He achieved the highest grade point average of any Harvard Law student in the 20th century,[49] and was the first graduate of the university to receive his law degree with such high honors.[g] The Fay Diploma,[h] the Law School's most distinguished decoration, was also awarded to him.[54] Although his performance suggested otherwise, Friendly found his experience at Harvard Law School unrewarding. He thought highly of the case method but never enjoyed the faculty instruction. Criminal law, taught by Pound, bored him, as did Beale. "After a few thrilling months with Williston and Hudson at the beginning of the first year, everything seemed to slide," he wrote to Frankfurter.[55] For the rest of his life, Friendly seriously doubted his decision choosing law over history.[56]

Editors of the Harvard Law Review, volume 39, pictured 1925–1926 at Austin Hall. Friendly is standing center, in the row behind David Farquhar Cavers (center, sitting)  
Editors of the Harvard Law Review, volume 40, pictured 1926–1927. Friendly is sitting center as president, with Erwin Griswold standing in the back row

Clerkship

In Friendly's second year, Frankfurter notified him of his decision to appoint him as a law clerk to Justice Louis Brandeis on the Supreme Court.[57] Brandeis was aware of Friendly's intellectual achievements at Harvard; both he and Frankfurter foresaw a career for Friendly in the legal academy.[57] In Friendly's third year, Frankfurter changed course. He suggested that Friendly delay the clerkship to remain at Harvard for a fourth year to study, teach, and research for him.[58] Friendly declined, tired of law school. Buckner advised him to immediately proceed to the clerkship then be a practitioner.[59] The competing interests of Brandeis, Frankfurter, and Buckner ensued in a struggle over the future of Friendly's career.[60] They quarreled over a life for Friendly in the academy or in the private practice of law.[60] Frankfurter saw Buckner's intrusion as obstructing the true purpose of the clerkship: to prepare Friendly for academia.[59] The professor wrote to Buckner:

As a newly appointed law clerk to Justice Louis Brandeis, Friendly is portrayed in a 1927 issue of The Columbia Record

What surprises me about all the lawyers with whom Friendly talked in New York, and even about your comments to him, is that you did not treat Friendly as a very special case - a man of truly extraordinary talents, under no pressure of immediacies, still very young and potential of very great things in all sorts of ways.... Don't you think it is terribly important that there be deposited in an unusually talented person like Friendly thoughts and reflections, not merely with reference to his success in New York during the next five or ten years, but that he should keep in mind what would equip him for the rest of his life as a civilized, reflective mind, with a deep inner life, instead of becoming as narrow and as sterile as are all but a negligible few of the leading members of the present day bar?[60]

The incident ultimately ended with the decision for Friendly not to undergo a postgraduate year.[61] His parents had intervened within the year, siding with Buckner.[59] They went to visit Brandeis in Washington and the justice diffused their apprehensions. "The only definite advice I gave them was to leave their son alone; to let him make up his own mind & not merely to say so, but let him see & know that they will be happy in whatever decision he makes. I put this as strongly as I could; & think they understood me."[58] Friendly began the clerkship in the fall of his graduation.[62][63]

Friendly's relationship with Brandeis began tumultuously, owing to a newspaper which overzealously titled the clerkship as having "The two highest Harvard Law men to work together." He considered abandoning his clerkship due to the potential embarrassment which might have followed, though Brandeis never saw the headline and never read newspapers. The two maintained a tentative relationship afterwards. Brandeis did the bulk of the writing and was largely absent for the day, while Friendly saw him twice a day in short periods.[64]

The clerkship with Brandeis had a lasting impact on Friendly.[65] Notwithstanding the little time they spent together, both he and the justice viewed each other highly.[66] Brandeis, in a telephone with Frankfurter, declared, "If I had another man like Friendly, I would not have to do a lick of work myself."[67] Friendly praised Brandeis as knowing "more law than almost the rest of the Court together"[66] and placed him highest in his rating of judges—above both Learned Hand and Frankfurter—later in his life.[64][50]

Private practice

Between a choice to assume a professorship offer at Harvard Law School or enter private practice, Friendly became an associate in the white-shoe law firm of Root, Clark, Buckner, Howland & Ballantine in September 1928. Brandeis had pressed him to enter the legal academy at Harvard, alternatively suggesting for him to take up practice in Omaha, Nebraska, to avoid the elites of New York City; Friendly was willing to sacrifice pay for a career in history, though did not share the same enthusiasm for legal scholarship and declined the professorship. A practice in law offered independence and financial stability—qualities which he yearned.[68]

Elitism and antisemitism were pervasive in law firms. Root, Clark was among the few firms in Wall Street to hire Jews in addition to having a Jewish partner, a characteristic which attracted Friendly. He interviewed also at Sullivan & Cromwell, which also permitted Jews, though turned down an offer after undergoing a series of interviews, suspecting it to be predicated on antisemitic beliefs and due only to his having been president of the Harvard Law Review.[69]

Harvard professor and future-Justice Felix Frankfurter (pictured) served as a mentor to Friendly during both his undergraduate and graduate years, arranging for him positions at Harvard Law School.[70]

Friendly stayed in private practice for 31 years; on January 2, 1937, he was made a partner of Root, Clark.[71][2] The firm first assigned him as an assistant to Grenville Clark, a senior partner who had suffered a nervous breakdown, with the intent that Friendly's aid and experience might reinvigorate him. Clark had been a prominent corporate lawyer, a fellow graduate of Harvard Law School, and nominee[72] of the Nobel Peace Prize.[73] Friendly's assistance, however, failed to improve his health. After months of uneventful work under Clark, Elihu Root Jr.[i] reassigned Friendly to a case representing Pan American-Grace Airways and its president, Juan Trippe. Friendly would assume control of the company's legal affairs with Root's consent not long afterward, primarily tasked with handling its contracts and diplomatic relationships. In 1929, he began a romantic relationship with Sophie Stern, daughter of future-Judge Horace Stern, and the couple married on September 4, 1930.[75] It was his first serious relationship with a woman.[76]

In 1931, Brandeis once again urged Friendly to join the faculty of Harvard Law School, this time with the additional support of Frankfurter, Roscoe Pound, Calvert Magruder, and Edward Morgan. When Friendly refused in order to remain in private practice, Brandeis and Frankfurter attempted to get him to join the Reconstruction Finance Corporation (RFC) as its assistant general counsel the next year at the invitation of Eugene Meyer. He turned down this office also, a decision which came as a disappointment to Frankfurter.[77] The Law School continued to make repeated requests for Friendly to join its faculty, all of which were ultimately unsuccessful.[78]

From 1931 until 1933, John Marshall Harlan II, a senior associate[79] at Root, Clark, was embroiled with a case representing the will of the late heirless Ella Virginia von Echtzel Wendel. Wendel, a wealthy recluse who was the sole owner of about $100 million of real estate,[80] left a substantial fortune of $40–50 million to unknown next of kin. Hundreds of claimants—many fraudulent—arose to inherit a part of the estate. Friendly was a prime assistant to Harlan, proving false the claim of a prominent candidate, and whose extensive research into the claimant's forgeries led to the dissolve of several other parties' cases.[81] He would recall of the case:

John Harlan and I often remarked to each other that the Wendel Estate litigation was the most enjoyable forensic experience of our lives. It combined the elements of drama with—what is not always available—the financial resources needed to do a thoroughly professional job.[82]

Pan Am and Cleary, Gottlieb

Friendly was responsible for Pan Am's congressional affairs, spending much of his time in Washington, D.C., litigating contracts. He accompanied Trippe in his role as a legal advisor and sat adjacent to him in conference meetings. During World War II, Pan Am underwent rapid expansion, some of which were facilitated by Congressional funds appropriated in an agreement to use the company's airfields as a staging ground for the war effort. Friendly and Pan Am lawyer John Cobb Cooper sought to gain an advantage over the U.S. Department of War in dictating its terms—their effective efforts later came under scrutiny in a Senate investigation led by Missouri Senator Harry S. Truman, one which ultimately found no wrongdoing.[83]

With fellow associate Leo Gottlieb, Friendly began considering leaving Root, Clark to start a new firm. The two left in 1945, forming Cleary, Gottlieb, Friendly & Cox (now Cleary Gottlieb Steen & Hamilton), and were joined by a number of the firm's associates and partners.[18] The departure of a substantial portion of its lawyers caused a serious split in Root, Clark; though the firm was damaged, it left on good terms with the newly-formed Cleary, Gottlieb.[84] Cleary, Gottlieb's immediate success dispelled Friendly's initial financial fears amidst a declining postwar economy.[85]

Friendly brought Pan Am and New York Telephone to the new firm. In 1946, the former appointed Friendly as its general counsel and vice president, a position he would serve in until 1959.[86][87] In working for both Cleary, Gottlieb and Pan Am simultaneously, he was split between commuting to the firm in Wall Street and the Pan Am headquarters located in the Chrysler Building. Cleary, Gottlieb grew quickly, and it would attract high-profile clients such as Bing Crosby, Albert Einstein,[88] the French government, and Sherman Fairchild. George W. Ball, who had joined the firm at its invitation, left to serve as United States Under Secretary of State and, later, United States Ambassador to the United Nations. Elihu Root Jr. and Grenville Clark, formerly of Dewey, Ballantine, resigned their positions to join Cleary, Gottlieb as of counsel.[89]

While working for Pan Am, Friendly proved himself to be a skilled litigator, adept in cross-examination. In a case involving the company, Trans World Airlines (TWA), and American Overseas Airlines (AOA),[90] Friendly's cross-examination of multiple airline executives revealed contradictory statements which were refuted by internal data. On one occasion, his employment of a sometimes aggressive, unapologetic approach in questioning led to an objection by counsel, though Friendly refused to recant his methods. The case, which concerned Pan Am's acquisition of the AOA,[91] also involved James M. Landis, former Dean of Harvard Law School, who had a personal feud with both Friendly and Trippe; Landis represented the TWA in its efforts to compete against Pan Am for the purchase of the AOA. Friendly's cross-examination of Landis led to the upholding of Pan Am's acquisition by the Civil Aeronautics Board, and President Harry Truman's signed approval on July 10, 1950, unexpectedly gave Pan Am the benefit of additional access to airways which it did not ask for. TWA appealed the controversial decision by Truman to the United States Court of Appeals for the Second Circuit, which in turn upheld Friendly's arguments and struck down the appeal.[92]

The majority of Friendly's appellate litigation would be in the service of Pan Am, though in 1956 he won a New York Court of Appeals case for the New York Telephone Company against the Public Service Commission. He also successfully distinguished himself in oral argument at the Court of Appeals for the First Circuit, where he argued before Judge Calvert Magruder, who had previously been among those to recommend Friendly to join the Harvard Law faculty. In 1959, Trippe approached Friendly to strike a contract with Howard Hughes for the purchase of six Boeing jets. With Raymond Cook,[93] Hughes' lawyer, Friendly's efforts to clear the contract ensured its survival amidst a bond issue with the U.S. Securities and Exchange Commission. The $40 million deal was one of the hastiest Friendly drafted and would be one of his last acts in private practice.[94]

Nomination to the Second Circuit

Upon the election of President Dwight D. Eisenhower's in 1952, Friendly sought a possible judicial appointment. Decades of having been in private practice had begun to take a toll on his mental health; cases for Pan Am before the CAB grew monotonous and unsatisfying. Attorney General Herbert Brownell Jr., with whom Friendly worked with during his days at Harvard Law, began searching for potential candidates to the Court of Appeals for the Second Circuit. It was recommended that Friendly take up a preliminary appointment on the district court, but he eschewed a position, having previously attended it in secret as a disappointed spectator.[95]

I think there have been not more than two occasions during the long period I have served as a judge when I have felt it permissible to write a letter in favor of anyone for judicial appointment. However, I feel so strongly that the Second Circuit would be greatly benefitted by the appointment of Mr. Henry J. Friendly that I cannot forbear writing you to express my hope that you may see fit to fill the vanacy now existing in the Circuit by selecting him. I have not the slightest doubt that as a Circuit Judge he would be an addition to our court, as great as, if not greater than, anyone else you could choose; not only because of his unblemished reputation and high scholarship, but because of his balanced wisdom and wide outlook.

— Judge Learned Hand, in a letter to President Dwight Eisenhower[96]

Friendly's performance in private practice bore little influence on his being a viable candidate. His specialized practice in administrative law was known only to a select group of fellow lawyers in New York, and he had appeared before the U.S. Supreme Court twice, losing both cases. Additionally, the legal bouts against Landis and TWA received limited media coverage, nor was he an active member of academia, having turned a career as a professor down years prior. He was primarily distinguished by his exceptional performance at Harvard Law School, his clerkship for Justice Brandeis, and the reputation he accrued during his years in practice.[97]

In 1954, John Marshall Harlan II was appointed by Eisenhower to the U.S. Supreme Court to replace Justice Robert Jackson, leaving his position on the Second Circuit vacant. Felix Frankfurter and Learned Hand soon emerged as vocal supporters of Friendly to fill the seat, though ultimately the position went to J. Edward Lumbard. Friendly lobbied friends, colleagues, and close aides—including Louis M. Loeb and State Senator Thomas C. Desmond—in the case another vacancy arose. The unexpected development of a cataract in his left eye nearly endangered his candidacy, though symptoms abated following a successful eye surgery.[98] He was once again passed over when Judge Jerome Frank died in 1957. In spite of Frankfurter's vehement support for Friendly, Frank's seat was filled by Leonard P. Moore.[99]

On October 23, 1957, Brownell Jr. resigned as Attorney General and was replaced by William P. Rogers,[100] who soon received letters from Frankfurter when Judge Harold Medina announced his retirement in January 1958. The Association of the Bar of the City of New York supported Friendly's candidacy to take Medina's seat and the American Bar Association appraised him as "exceptionally well qualified."[101] The candidates to fill the seat of Medina also included Irving Kaufman, who had the bipartisan backing of both the state's Democrats and prominent Republicans, which Friendly lacked. Kaufman attempted to reinforce his platform by seeking the additional endorsement of Learned Hand, but Hand avoided doing so, using his law clerk, Ronald Dworkin, as a means of evading a potential meeting. In 1959, political support shifted towards Friendly as a compromise candidate and he was further bolstered by a public endorsement by Learned Hand soon after. On March 10, 1959, Eisenhower nominated Friendly to the U.S. Senate. Frankfurter's voiced support to Minority Leader Lyndon B. Johnson, who in turn convinced Senator Thomas Dodd to send the hearing notice, ensured Friendly's confirmation on September 9.[102]

U.S. Court of Appeals for the Second Circuit

Friendly received his commission to the Second Circuit Court of Appeals on September 10, 1959.[86] He was 56 years old.[103] Justice John Marshall Harlan II swore him in on September 29, 1959, at the United States Courthouse (now the Thurgood Marshall United States Courthouse) in Manhattan.[104] Friendly joined just four other active judges on the court: Chief Judge Charles Edward Clark, alongside the conservative Lumbard, liberal Sterry R. Waterman, and progressive Leonard P. Moore. They were of similar age, experience, and party.[105]

Friendly established himself as being complaisant and sensitive to his colleagues, incorporating suggestions from the other judges whenever possible.[106] Lumbard was elevated to chief judge towards the end of the year, and the Court's efficiency and affability improved.[107] Former Connecticut congressman J. Joseph Smith was Eisenhower's final appointment, arriving in 1960.[105] Present but inactive judges included senior Harold Medina, and the celebrated but aged Learned Hand.[108] Friendly came to see Hand, who attended periodically before dying in 1961, as beyond his prime years.[108] Though formidable, the Court was less respected than it had been under Hand's tenure, when its composition included Augustus Hand and Jerome Frank.[107]

Friendly was apprehensive about his judicial ability and was initially beset by self-doubt in writing opinions. He first arrived on the bench on October 6, 1959, and erroneously ruled in favor of the government in United States v. New York, New Haven & Hartford R.R. The case, which was on appeal, concerned the Interstate Commerce Commission and fell under the Expediting Act, which in turn required the case to bypass the court of appeals directly to Supreme Court.[109] Wary of another mistake, Friendly began taking a strictly literal interpretation of laws. Regarding his indecisiveness over one decision, he told Learned Hand of his fears; Hand exclaimed, "Damn it, Henry, make up your mind. That's what they're paying you to do!"[110]

He would continue to serve as a judge for the rest of his life, assuming senior status on April 15, 1974. He served as a member of the Judicial Conference of the United States, where he was its chief judge from 1971 to 1973, and was also a presiding judge of the Special Railroad Court from 1974 to 1986. His judicial service was terminated on March 11, 1986, due to his death.[111]

During his tenure, Friendly would pen over 1,000 judicial opinions while remaining active as a scholarly writer.[112] He wrote extensively in law reviews, publishing works that were considered seminal in multiple fields and extraordinary in combination with his existing workload as an appellate judge.[113][5]

Legacy

External videos
video icon Legacy of Judge Henry Friendly, March 10, 2017, C-SPAN

In a ceremony following Friendly's death, then-Chief Justice Warren E. Burger said, "In my 30 years on the bench, I have never known a judge more qualified to sit on the Supreme Court." At the same ceremony, Justice Thurgood Marshall called Friendly "a man of the law."[114] In a letter to the editor of The New York Times following Friendly's obituary, Judge Jon O. Newman called Friendly "quite simply the pre-eminent appellate judge of his era" who "authored the definitive opinions for the nation in each area of the law that he had occasion to consider."[115] In a statement after Friendly's death, Wilfred Feinberg, the 2nd Circuit's chief judge at the time, called Friendly "one of the greatest Federal judges in the history of the Federal bench."[115] Judge Richard A. Posner described Friendly as "the most distinguished judge in this country during his years on the bench" and "the most powerful legal reasoner in American history."[116][115] Akhil Amar called Friendly the greatest American judge of the 20th century. Amar also cited Friendly as a major influence on Chief Justice John Roberts.[117]

Honors

Friendly was a member of the Harvard Board of Overseers from 1964 to 1969, and was also a member of the executive committee of the American Law Institute. He was awarded the Presidential Medal of Freedom in 1977 and the Thomas Jefferson Memorial Award in Law in 1978.[118]

Harvard Law School has a professorship named after Friendly. Paul C. Weiler, a Canadian constitutional law scholar, held it from 1993 to 2006;[119] William J. Stuntz, a scholar of criminal law and procedure, held it from 2006 until his death in March 2011.[120] The professorship is currently held by Carol S. Steiker, a specialist in criminal justice policy and capital punishment.[121] The Federal Bar Council awarded Friendly a Certificate of Distinguished Judicial Service posthumously in 1986.[122] The Henry J. Friendly Medal, established by the American Law Institute, was named in memory of Friendly and endowed by his former law clerks;[123] Justice Sandra Day O'Connor received the award in 2011.[124]

Personal life

Friendly was a member of the Republican Party.[125][126][127]

Family and marriage

Sophie Pfaelzer Stern, Friendly's wife, was a member of a Philadelphia Jewish family and educated at Swarthmore College and Fordham University. Following their marriage, the newly-wed couple traveled to Italy and Paris for their honeymoon.[128] Both Friendly and Stern shared a close relationship, and they had two children—David and Joan—by January 1937 and a third, Ellen, soon after.[129] As their marriage progressed, it became complicated and grew unintimate later in his life.[130]

Work engrossed Friendly, and he had a largely estranged relationship with his children, seeing them only during the summer.[131] He was also extremely reserved, showed both little emotion and signs of physical affection to his children, and was uninterested in their personal affairs. He sought to maintain an excessively formal environment, often retiring to study alone.[132] Joan Friendly Goodman, his second-eldest child,[133][134] remembered Friendly's tentative bond:

What he experienced he had difficulty expressing and because he expressed so little the feelings never were shaped, modulated, refined. . . . I knew what he wanted, but couldn't express himself [...] He was slightly gruff, too loud, used his voice rather than a caress to wake me, but I knew it was his way of saying I want to care for you. I saw the intent behind the deed when the gesture failed. He was always on the verge of giving vent to tenderness but, except in his letters, rarely able to do so.[135]

Health

Friendly was a natural pessimist and demonstrated some symptoms consistent with major depressive disorder. He harbored feelings of hopelessness in addition to experiencing bouts of extreme sadness, though not to the extent of impairing his diligence.[136]

Friendly's father, Myer, died at age 76 on December 28, 1938,[137] in a local hospital at St. Petersburg, Florida; he was a longtime winter resident in the city.[138][j] His father's death of a blood clot precipitated Friendly's lifelong fear of a stroke and concern for his own health.[139] Friendly's wife died of cancer in 1985.[140]

Death

After Sophie's death from colon cancer on March 11, 1985, Friendly began to think seriously about committing suicide. Her death had been unexpected; she had been healthy and vigorous, while he had always been pessimistic and burdened with health issues. Friendly died by suicide at age 82 on March 11, 1986, in his Park Avenue apartment in New York City;[126] multiple prescription bottles were at his side.[141] Police said they found three notes in the apartment: one addressed to his resident maid and two unaddressed notes. In all three notes, Friendly talked about his distress at his wife's death, his declining health and his failing eyesight, according to a police spokesman.[126] His wife, the former Sophie M. Stern, had died a year earlier. They had been married for 55 years. He was survived by a son and two daughters.[126]

Selected list of former law clerks

Throughout Friendly's tenure on the Second Circuit, competition among third-year law students to be selected as one of his law clerks was intense. Besides a clerkship on the Supreme Court, a Friendly clerkship was the most coveted. For his first eight years on the bench, the judge hired exclusively from Harvard Law School, later taking students from other law schools based on the recommendation of professors.[142]

Image of Philip Bobbitt
Philip Bobbitt, 1975–76
Image of Merrick Garland
Merrick Garland, 1977–78
Image of John Roberts
John Roberts, 1979–80
Name Term Notes Ref.
David P. Currie 1960–1961 Edward H. Levi Distinguished Service Professor, University of Chicago Law School [143]
Peter Edelman 1961–1962 Carmack Waterhouse Professor of Law and Public Policy, Georgetown University Law Center [143]
Stephen Barnett 1962–1963 Elizabeth Josselyn Boalt Professor of Law Emeritus, University of California, Berkeley [143]
Pierre N. Leval 1963–1964 Judge of the U.S. Court of Appeals for the Second Circuit [144]
Michael Boudin 1964–1965 Chief Judge of the U.S. Court of Appeals for the First Circuit [144]
Bruce Ackerman 1967–1968 Sterling Professor of Law and Political Science, Yale Law School [144]
Richard Daynard 1967–1968 University Distinguished Professor, Northeastern University School of Law [144]
A. Raymond Randolph 1969–1970 Judge of the U.S. Court of Appeals for the District of Columbia Circuit [145]
Walter Hellerstein 1970–1971 Francis Shackleford Distinguished Professor of Taxation Law, University of Georgia School of Law [145]
Martin Glenn 1971–1972 Chief Judge of the U.S. Bankruptcy Court for the Southern District of New York [145]
Frederick T. Davis 1972–1973 Lecturer, Columbia Law School; Partner, Debevoise & Plimpton [145]
William Curtis Bryson 1973–1974 Senior Judge of the U.S. Court of Appeals for the Federal Circuit; Acting Solicitor General of the United States [146]
Gregory Palm 1974–1975 Executive Vice President, Goldman Sachs [146]
James R. Smoot 1974–1975 Dean of the Cecil C. Humphreys School of Law, The University of Memphis [146]
Philip Bobbitt 1975–1976 Herbert Wechsler Professor of Jurisprudence, Columbia Law School [146]
Todd Rakoff 1975–1976 Byrne Professor of Administrative Law, Harvard Law School [146]
Ruth Wedgwood 1976–1977 Edward B. Burling Professor of International Law and Diplomacy, Johns Hopkins University [146]
Merrick Garland 1977–1978 Chief Judge of the U.S. Court of Appeals for the District of Columbia Circuit; 86th United States Attorney General [146]
Walter R. Stern 1978–1979 Partner, Wachtell, Lipton, Rosen & Katz; Member, American Law Institute [147]
John Roberts 1979–1980 17th Chief Justice of the United States; Judge of the U.S. Court of Appeals for the District of Columbia Circuit [147]
Reinier Kraakman 1979–1980 Ezra Ripley Thayer Professor of Law, Harvard Law School [147]
Gary Born 1981–1982 Partner, Wilmer Cutler Pickering Hale and Dorr [147]
Louis Kaplow 1981–1982 Finn M.W. Caspersen & Household International Professor of Law & Economics, Harvard Law School [148]
Jonathan R. Macey 1982–1983 Sam Harris Professor of Corporate Law, Corporate Finance and Securities Law, Yale Law School [148]
Michael P. Madow 1982–1983 Professor, Brooklyn Law School [148]
David J. Seipp 1982–1983 Professor, Boston University School of Law [148]
Larry Kramer 1984–1985 12th Dean of Stanford Law School; President of the London School of Economics [148]

Extrajudicial writings

Books

Journals

See also

Notes

  1. ^ President of the Friendly Boot and Shoe Company.[6]
  2. ^ Twain's octagonal study, located in Elmira, was his place of work for Tom Sawyer and Huckleberry Finn. The writer had married Olivia Langdon Clemens, a native of Elmira, and the two owned a house in the town. After her death, Twain no longer inhabited his Elmira retreat.[14]
  3. ^ Future mathematician Marshall Stone, a member of Delta Kappa Epsilon and a classmate, never encountered him during the college's social events.[21]
  4. ^ The Shaw traveling fellowship allowed a student 14 months of study in European universities.[30]
  5. ^ Friendly would later learn that Frankfurter had orchestrated Hudson's questioning beforehand.[37]
  6. ^ Friendly was president of Volume 40 of the Harvard Law Review during the 1926–1927 term. The following year, he was succeeded by Erwin Griswold, whom he mentored, for Volume 41.[41]
  7. ^ Justice Louis Brandeis graduated from Harvard Law School in 1877 with approximately a 95 average, compared to Friendly's average of 86. Comparatively, a student who received an 80 average was expected to be first in their class with highest honors.[50] However, in the 46 years between Brandeis' and Friendly's tenure at the law school, the university had changed its grading system. Friendly biographer David M. Dorsen notes "some controversy over whether Friendly or Brandeis had the highest average in the history of the law school."[51] Once adjusted for the changes in the grading system, Friendly's academic record were higher than those of Brandeis, and thus the highest in the law school's history.[52]
  8. ^ Awarded based on the law student with the highest combined grade point average during the three years of study.[53]
  9. ^ Son of 41st U.S. Secretary of War and 38th U.S. Secretary of State Elihu Root. He was the principal founder of Root, Clark & Bird (expanded later to Root, Clark, Buckner, Howland & Ballantine).[74]
  10. ^ Myer left a sizeable inheritance to his children and relatives upon his death. Among them, Friendly received the largest share at $305,156.[137]

References

  1. ^ Kahn 2003, p. 274.
  2. ^ a b Harvard Law Review 1986, p. 1721.
  3. ^ Margolick, David (April 24, 1992). "An Unusual Court Nominee, Judging by His Family". The New York Times. Retrieved March 17, 2024.
  4. ^ Davis 2012, p. 339.
  5. ^ a b Davis & Gladden 2014, p. 64.
  6. ^ Kahn 2003, p. 273.
  7. ^ Dorsen 2012, p. 1, 5–6.
  8. ^ a b Dorsen 2012, p. 6.
  9. ^ Dorsen 2012, p. 6–7.
  10. ^ a b Dorsen 2012, p. 7.
  11. ^ Dorsen 2012, p. 5–6, 8.
  12. ^ Dorsen 2012, p. 8–9.
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  14. ^ a b Dorsen 2012, p. 10.
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  16. ^ Dorsen 2012, pp. 9–10; Keeffe 1968–1969, p. 316; Keeffe 1961, p. 319.
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  29. ^ Dorsen 2012, p. 20; Siegel 2017, p. 116
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  31. ^ Dorsen 2012, p. 20.
  32. ^ Snyder 2010, p. 1168.
  33. ^ Dorsen 2012, p. 20–21.
  34. ^ Dorsen 2012, p. 21.
  35. ^ Snyder 2010, p. 1168–1169.
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  39. ^ Boudin, Dorsen & DeJulio 2013, p. 170.
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  56. ^ Snyder 2010, p. 1169; Dorsen 2012, p. 27.
  57. ^ a b Snyder 2010, p. 1171.
  58. ^ a b Dorsen 2012, p. 26.
  59. ^ a b c Snyder 2010, p. 1172.
  60. ^ a b c Harvard Law Review 1986, p. 1717.
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  65. ^ Biskupic 2019, p. 48–49.
  66. ^ a b Lucas 2017, p. 431.
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  68. ^ Dorsen 2012, p. 31–32, 34.
  69. ^ Dorsen 2012, p. 32–33.
  70. ^ Siegel 2017, p. 124.
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  76. ^ Peppers 2021, p. 241.
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  83. ^ Dorsen 2012, p. 47–48, 60.
  84. ^ "George Cleary, 90, Law Firm Founder". The New York Times. March 27, 1981.
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  90. ^ "Debate An Air Merger: The CAB Hears Attorneys For Two Lines". The Kansas City Times. March 2, 1950. p. 23. Retrieved June 11, 2023.
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  112. ^ Brecher 2014, p. 1181.
  113. ^ Dorsen 2012, p. 86.
  114. ^ Johnson, Kirk (June 10, 1986). "A Solemn Tribute To Henry Friendly, A Quiet Giant Of The Appeals Bench". The New York Times.
  115. ^ a b c Newman, Jon O. (March 24, 1986). "From Learned Hand To Henry Friendly". The New York Times.
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  117. ^ Akhil Amar (June 29, 2021). "Amarica's Constitution: Know the Nine You Will". PodBean (Podcast). Publisher. Event occurs at 31:30. Retrieved December 14, 2021.
  118. ^ Harvard Law Review 1986, p. 1721–1722.
  119. ^ "Paul C. Weiler, Henry J. Friendly Professor of Law, Emeritus". Harvard Law School. Retrieved March 8, 2010.
  120. ^ "William J. Stuntz". Harvard Law School. Archived from the original on September 13, 2008. Retrieved March 8, 2010.
  121. ^ "Carol S. Steiker". Harvard Law School.
  122. ^ Metro Datelines (November 27, 1986). "Honors for 4 Judges And Ex-Prosecutor". The New York Times. Retrieved March 8, 2010.
  123. ^ "Henry J. Friendly Medal". The American Law Institute. Archived from the original on April 20, 2015. Retrieved July 24, 2014.
  124. ^ "Law school's namesake, Justice O'Connor, receives Friendly Medal". ASU News. October 21, 2011. Retrieved May 29, 2023.
  125. ^ Dorsen 2012, p. 75, 242, 250.
  126. ^ a b c d Norman, Michael (March 12, 1986). "Henry J. Friendly, Federal Judge In Court Of Appeals, Is Dead At 82". The New York Times.
  127. ^ Grunwald, Michael; Goldstein, Amy (July 24, 2005). "Few have felt beat of Roberts's political heart". NBC News. Retrieved May 30, 2023.
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  129. ^ Dorsen 2012, p. 36–37, 44.
  130. ^ Dorsen 2012, p. 56.
  131. ^ Dorsen 2012, p. 44, 57.
  132. ^ Dorsen 2012, p. 53–55.
  133. ^ Goodman 1984, p. 10.
  134. ^ Dorsen 2012, p. 57.
  135. ^ Dorsen 2012, p. 53–54.
  136. ^ Dorsen 2012, p. 52–54, 342.
  137. ^ a b "M.J. Friendly Estate Valued At $530,028". Star-Gazette. February 16, 1940. p. 3. Retrieved June 11, 2023.
  138. ^ "M. H. Friendly Succumbs Here: Winter Resident of City 19 Years". St. Petersburg Times. December 29, 1938. p. 2. Retrieved May 31, 2023.
  139. ^ Dorsen 2012, p. 44.
  140. ^ Dorsen 2012, p. 1.
  141. ^ Elkin, Larry (March 11, 1986). "Veteran Appeals Court Judge Found Dead With Suicide Note". AP NEWS. Archived from the original on May 29, 2023. Retrieved May 29, 2023.
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  147. ^ a b c d Dorsen 2012, p. 365.
  148. ^ a b c d e Dorsen 2012, p. 366.

Bibliography

Journals

Legal offices Preceded byHarold Medina Judge of the United States Court of Appeals for the Second Circuit 1959–1974 Succeeded byEllsworth Van Graafeiland Preceded byJ. Edward Lumbard Chief Judge of the United States Court of Appeals for the Second Circuit 1971–1973 Succeeded byIrving Kaufman