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(1927-2002) Gerald Gunther, William Nelson Cromwell Professor of Law,
Emeritus, died of lung cancer in his campus home on July 28, 2002.
He was the leading constitutional law scholar in the United
States.
He was born in 1927 in a small German town, Usingen, where his
father was a butcher. He was six years old, and in the first grade,
when Hitler came to power. The first grade teacher was replaced by
a member of the Nazi party, who exiled the small number of Jewish
students to a corner away from "Aryan" students. (Gunther recalled
that he was told: "You Jew pig, you sit here. We don't want you to
pollute the others." ) Because the family had lived in Usingen for
three centuries, Gunther's father was reluctant to leave even as
conditions for German Jews became much worse. As a result, Gunther
was subject to antisemitic insults by the teacher and by fellow
students for the next five years. The family finally left for the
United States on the day that the local synagogue was burned, just
before the invasion of Czechoslovakia. Gunther arrived in New York
at the age of eleven, not speaking a word of English.
After his graduation from Stuyvesant High School, and a short
stint in the United States Navy at the end of World War II, he
received his undergraduate education at Brooklyn College, and
earned a master's degree in public law and government at Columbia.
He then enrolled in the Harvard Law School, where he was note
editor of the Harvard Law Review, graduating second in his class in
1953. He was appointed to a prestigious one year clerkship with
Judge Learned Hand of the United States Court of Appeals for the
Second Circuit, followed in 1954-1955 by a clerkship with Chief
Justice Earl Warren. In his brief time at a Wall Street law firm,
he worked with Henry Friendly -- later to become a highly regarded
judge on the same United States Court of Appeals. Gerry joined the
Columbia Faculty in 1956. In 1962, he came to Stanford, as part of
"the great Columbia raid." (In addition to Gunther, that brought
Howard Williams, Charles Meyers and Marc Franklin to Stanford from
Columbia, along with Joseph Sneed from the Cornell Law
School.)
Gerry Gunther's approach to constitutional law required the
Supreme Court to decide cases by using evenhanded "neutral
principles" of law. It also urged the Court, in deciding whether to
leave important constitutional questions to the political processes
of the other branches of government, to do so on the basis of
principle. That would require that the same standards be applied in
deciding whether to hear Richard Nixon's Watergate tapes case and
to intervene in Bush v. Gore . (In both cases, the Court decided to
decide, and Gerry criticized both decisions.)
Gerry authored several important law review articles in the
field of constitutional law. (One of these was found to the most
frequently cited modern law review article.) The major forum for
his
continuing influence, however, was the casebook he edited for
more than forty years. As President Emeritus Gerhard Casper said:
"It is quite rare for a casebook to make an independent
contribution, but his certainly has. It is a reflective, learned
casebook." In addition to being the best seller, "Gunther on
Constitutional Law" became the standard reference work. Dean
Kathleen Sullivan, who is now the editor of the casebook, described
it as "not just a work of constitutional law but a work of
jurisprudence. ... It was the work of the conductor who knew every
principal's part but had in front of him the whole
score."
As influential as was his casebook, Gerry considered the
biography of Judge Learned Hand to be his most important
contribution. He spent more than 20 years absorbing a mountain of
Hand's papers, and writing and rewriting. Many considered it to be
the best judicial biography ever written. Supreme Court Justice
David Souter saw it as "the book that stands out for me in Gerry's
written harvest." Although its subject was a judge who was passed
over at least twice for a position on the United States Supreme
Court, the biography was awarded the Erwin N. Griswold Triennial
Prize by the Supreme Court Historical Society, for "the best
original work pertaining to the Supreme Court in the preceding
three-year period" in 1995. In 1999, the Order of the Coif gave it
its Triennial Award for the best legal scholarship published in the
preceding three years.
Gerry was for all of his forty years at Stanford a popular
teacher of constitutional law. He taught both introductory and
advanced courses, and his powers as a raconteur of Supreme Court
and constitutional history drew students to his seminars and office
hours as well.
Finally, Gerry will be remembered at Stanford for his
passionate defense of freedom of speech on the campus. One could
have predicted that the German Jewish boy, who was harassed in his
school by a Nazi teacher and most of his classmates for all of his
elementary education would applaud Stanford's efforts to discipline
students who hurled racial epithets at their fellows. He could
testify from that searing experience that being called names is
painful; he told the Student Legislative Council, "I can assure you
that they hurt." Still, he found the various drafts of a "speech
code" to be "incompatible with the mission of a university. ... The
lessons I have drawn from my childhood in Nazi Germany and my
happier adult life in this country is the need to walk the
sometimes difficult path of denouncing the bigot's hateful ideas
with all my power, yet at the same time challenging any community's
attempt to suppress hateful ideas by force of law."
Gerry was remembered at a memorial service at Kresge
Auditorium on October 4, 2002, attended in person by Justice Souter
and by video by Justice Ruth Bader Ginsburg, who was Gerry's
student. Their remarks, and those of other speakers and alumni, are
reprinted in Volume 55 of the Stanford Law Review at pages
639 to 677.
Committee: William Cohen,
chair
Kathleen M. Sullivan  |
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Stanford Report, May 7, 2003