The country has lost a great public servant, who was also a great mentor and friend to many in law and politics.
The country has lost a great public servant, who was also a great mentor and friend to many in law and politics.
A merica lost one of its great public servants when Laurence H. Silberman, a judge of the U.S. Court of Appeals for the District of Columbia, passed away on Sunday night at the age of 86. I lost a great mentor and friend. The two were intertwined. Silberman brought loyalty and candor to his advice and friendships by the same means that he arrived at his strongly held conservative opinions: commitment to intellectual clarity as refined by a relentless Socratic method. As his young law clerk, from 1992 to 1993, I was subjected to this unending process of questions and answers more times than I can count (or liked).
Silberman will go down in history as one of the most influential American judges never to serve on the Supreme Court. Most law students will little remember the justices of the Rehnquist or Warren Courts, and will little know the difference between a Henry Friendly (who, like Learned Hand, was also a judge of far more ability and influence than most of the justices who served on the Court in his time) and a Henry Unfriend-Me.
But when those future students — and lawyers and judges — read the work of the Roberts Court, especially its blockbuster term just ended in June 2022, they will see Silberman’s profound intellectual influence at work. As a prominent lawyer in the Nixon administration, who rose to become solicitor of labor and then deputy attorney general in his 30s, he became one of those leading legal thinkers who — along with Antonin Scalia and Robert Bork, the three of them spending the wilderness years of the Carter presidency at the American Enterprise Institute — helped develop a common conservative position on abortion. Silberman, who was pro-choice, believed that Roe v. Wade had concocted a constitutional right out of thin air and that the abortion question should be returned to the states, where Americans could resolve it through the democratic political process. The idea, as developed by Silberman, Scalia, and Bork, that the Constitution could operate on neutral principles that did not take sides on most moral questions, such as abortion, eventually prevailed this year in Dobbs v. Jackson Women’s Health Organization.
Though he never published any opinion himself on Roe, Silberman was a critical voice in developing a position — in favor of judicial restraint — that all could share regardless of their view on the policy of abortion. It was this ideal — that judges held a limited competence and should exercise their power to strike down democratically enacted laws only with great reluctance — that drove much of his thinking. At times this led him to half-hearted support for originalism. “Judges and scholars who advocate original meaning are merely saying that the Constitution did not authorize judges to act as a continuing constitutional convention making new policy choices not made by the Framers,” he wrote in a 1990 law-journal article. At other times his commitment to judicial restraint led him to be one of the most forceful proponents of judicial deference to agency interpretation of vague statutes and the regulations made thereby, even if better readings of the law or superior regulations offered themselves. And sometimes it led him to uphold a law, such as President Obama’s Affordable Care Act, that conservatives universally despised but that he concluded fell within the broad federal commerce-clause powers over the economy that the courts had recognized since the New Deal.
Nevertheless, Silberman’s most noteworthy opinions came when he felt he had to depart from the judicial restraint he treasured. In another case that rose to become the law of the land, Silberman faced the question — more than a year before it reached the Supreme Court — whether the Second Amendment right “to keep and bear Arms” protected an individual right to own a handgun in Washington, D.C., which effectively banned all private firearm possession. He rejected the argument that the Second Amendment’s preface, “A well regulated Militia, being necessary to the security of a free State,” meant that the amendment guaranteed only the authority of the states to maintain a militia. Instead, Silberman concluded that the Bill of Rights implemented a preexisting natural right of self-defense. “The Amendment acknowledges ‘the right . . . to keep and bear Arms,’ a right that pre-existed the Constitution like ‘the freedom of speech,’” he wrote in Parker v. District of Columbia (2007). “Because the right to arms existed prior to the formation of the new government . . . the Second Amendment only guarantees that the right ‘shall not be infringed.’”
Careful students of the law will notice that a 5–4 majority of the Supreme Court, Justice Scalia writing, adopted exactly this logic in finding that the Second Amendment had to be read as an individual right and striking down D.C.’s handgun law in Heller v. District of Columbia (2008). Following the same reasoning, the Court applied the Second Amendment to the states two years later in McDonald v. City of Chicago, and then made clear this summer, with Justice Thomas writing, that this right included the liberty to carry firearms outside the home (New York State Rifle & Pistol Association v. Bruen). Maybe the Court would have reached these three results even if Silberman had never proposed the idea that the Second Amendment rested on a natural individual right to possess and use weapons. But that intellectual innovation provided the reasoning on which conservative judges could uphold this constitutional right.
A third case where Silberman’s influence on constitutional law shines brightest is also the opinion of which he was most proud. In In re Sealed Case (as the case is known), Silberman found that Congress’s creation of an independent prosecutor violated the separation of powers. According to Silberman, the law ran afoul of the Constitution because it transferred part of the president’s authority to “Take Care that the laws are faithfully executed” to an official whom the president could not fire and thus could not control. In a tour de force of textual reading and historical research, informed by his long experience as a government official, Silberman concluded: “For no federal government function is it more vital to the protection of individual liberty that ultimately the buck stop with an accountable official—the President—than in the prosecution of criminal laws.” Although Silberman forever remained shocked that a 7–1 majority of the Supreme Court upheld the independent prosecutor anyway, he could take solace that the one dissenter was his great friend and fellow Nixon DOJ alum, Justice Scalia. (I think this was an outcome that Silberman would take every time.) He could also take satisfaction that the independent-prosecutor law’s flaws became so widely recognized once a Democratic president, Bill Clinton, suffered under it that both Republicans and Democrats agreed to allow the independent-prosecutor experiment to expire in 2000.
But most of all, he saw the force of his reasoning survive and even inspire the Roberts Court to embark on a series of decisions that have struck down independent agencies, culminating in Seila Law v. Consumer Financial Protection Bureau two years ago. In Seila Law, the Court ruled that it was unconstitutional for the director of the CFPB to be immune from presidential removal except for cause. The Court declared that past decisions upholding the New Deal independent agencies would remain limited to their facts. In other words, presidents and Congress can no longer experiment with the design of government, but instead had to obey the Framers’ rigorous three-part framework: Congress enacts the laws, the president enforces them, and the courts adjudicate disputes that arise under them. The Roberts Court’s ongoing battle with the New Deal state can trace its intellectual origins to Silberman’s justly famed dissent in the independent-prosecutor case.
But just as important as his written word was the force of Silberman’s personality and intellect. I doubt that anyone who ever met him forgot him. Silberman was of the generation that believed the Socratic method was the best way to the truth; and he left no one in any doubt about who was Socrates. Silberman believed that the truth would emerge from asking more and more precise questions, testing every assumption, and arguing — sometimes heatedly — as intellectual equals. He applied this approach to figure out every case, large or small; he sometimes argued for days with his clerks over even the most minor technical legal questions. But this thoroughness of Socratic reasoning — I was not the first to compare Silberman to a dog with a very large, juicy bone — lent his opinions their force and influence. When you read his work, or you heard his position on an issue of the day, you knew it had come about after hours of thinking and arguing over every angle that might occur to a man.
Official cases, however, were not the only bones. He brought his love of reasoning and argument to any issue that came his way. Silberman’s first instinct was always to go on the offensive with questions, but his second instinct was always to listen carefully to — and learn from — the response. He applied his method to any and all questions: whether a Supreme Court opinion had it right, or an advocate understood an administrative-law doctrine, or a 25-year-old clerk should get married as soon as possible. He remained young at heart because he found that the world always presented new issues from which he might tease out the truth. The Socratic method can seem unsparing and ruthless, but in the hands of someone with great wit and energy, it can be electrifying and lead to revelation. Many young men and women in Washington, D.C., were drawn to Silberman’s intellectual magnetism. He directly mentored literally a hundred or so into being better thinkers and leaders, and he was a friend to many more.
I know whereof I write. At 23, when I applied to serve as Silberman’s law clerk, my interview started from the first minute as a give-and-take over the many facets of affirmative action. We talked about the law of it, its social effects, its morality, its economics. While I had mildly supported race-based measures to compensate for the segregation and slavery of the past, I told him that my views had started to change after reading Supreme Court opinions and the commentary of economist Thomas Sowell. To my surprise, he confessed that he had originally supported affirmative action to the point of drafting its first version for the Nixon Labor Department, but had also come to change his mind because of the policy’s consequences. He wasn’t declaring the right answer, but instead was inviting further debate — which ensued for another 45 minutes. I began working for him after I graduated from Yale Law School two years later. He would refer to me as his “affirmative-action hire” because I had gone to Yale rather than Harvard Law School (his alma mater).
Clerking for him for a year was an education in the law that soon surpassed my three years at Yale Law (this may have had more to do with Yale). He taught that lawyers answer questions by starting with the facts of a dispute, and that they develop principles from the ground up by applying our reason to everyday cases. He rejected the idea that lawyers and judges should impose grand principles top-down as would philosopher-kings. And once you thought you had figured out a problem, he returned again with more questions.
One issue that troubled the courts of the early 1990s was whether a law that made it a crime to “use” a firearm in the course of a drug violation included conduct other than firing the gun. I remember arguing that a drug seller who only displayed the gun would violate the statute, which I thought punished those who “use” the gun to threaten violence. Silberman: What if the drug seller leaves the gun unloaded? What if the drug buyer knows it’s unloaded? What if the gun is in the seller’s back pocket where the buyer can’t see it? What if the gun is in a bag next to the drug seller? What if the bag is sitting equidistant between the buyer and seller? What if the gun is on top of the bag, but the bag is up in a tree? What if the gun is hidden nearby in a bush, or under a lawn mower (I confess to this day uncertainty about why the bush and lawn mower were different), so that only the drug seller but not the buyer knows it’s there? Thus did the fun proceed in the Silberman chambers.
Silberman’s love for unceasing give-and-take extended to a different field where he played another important role unknown to many in the law. After leaving the Nixon/Ford Justice Department — a wise move — Silberman went to serve in Yugoslavia as ambassador. Thus began his life-long fascination with foreign affairs. He served as the lead foreign-policy adviser for Ronald Reagan’s 1980 campaign, became one of Reagan’s special envoys to the Middle East (along with Donald Rumsfeld), and, in one of his most important public services, co-chaired, with ex-senator Chuck Robb, the commission that investigated whether the Bush administration had deliberately manipulated the intelligence that led to the Iraq War of 2003. His commission report dispelled the myth that Bush “lied and people died,” and inspired a sweeping structural reform of the intelligence community (the jury may still be out whether the latter effort has failed). In all of these endeavors, Silberman brought his Socratic mind to bear.
Silberman didn’t believe that law truly existed in great-power politics. Instead, he loved to examine the capabilities and intent of other nations from all possible angles. To his last days, he was worried about whether a rising China was threatening American interests or China was already a declining power and maybe even more dangerous (à la Wilhelmine Germany in 1914). Throughout his life, he subjected the foreign-policy challenges of our day to an unceasing stream of questions and answers until he was satisfied. He was using his lawyer mind to contribute to the broad national discussion that hopefully would improve our foreign policy and protect our national interests. He was one of the many Americans, some sung and many unsung, who worked for decades in and out of government to achieve victory against the Soviet Union and its totalitarian allies.
It was one of Silberman’s great regrets to have been too young to serve in World War II, but he helped make sure that the United States did not lose the strange peace that followed. In that, he never lost faith that dispassionate reason and argument would not only resolve legal problems or foreign-policy questions, but help the American institutions and the nation in which he believed so deeply to succeed. At the end of his six-decade career, stretching from his 1961 graduation from law school to a recent speech that provocatively defended freedom of thought, Silberman could rest confident that he had done his part in continuing and protecting the great American experiment in self-government.