Judge Laurence H. Silberman, 1935-2022 He was more consequential than most Supreme Court Justices.
The most famous judges in American history are those who make it to the Supreme Court, but that doesn’t mean they are the most consequential. One of the latter is Judge Laurence Silberman, who died Sunday, a few days short of his 87th birthday.
Judge Silberman had one of the great careers in the law and public service. Appointed by Ronald Reagan, he spent some 36 years on the D.C. Circuit Court of Appeals, hearing cases even after taking senior status and up to the time of his sudden illness.
His most consequential opinions include Parker v. D.C. (2007), which found that the Second Amendment was an individual right to bear arms and not merely for a militia. Silberman’s opinion examined the history of gun practices in common law and the American founding, which served as the basis for Justice Antonin Scalia’s opinion in the landmark ruling in D.C. v. Heller (2008).
He was also ahead of his time in 1988 (In re Sealed Case), when he held that the independent counsel statute violated the Constitution’s Appointments Clause. The Supreme Court ruled the other way in the dreadful Morrison v. Olson decision. But Judge Silberman’s view was echoed in Scalia’s famous Morrison dissent that would surely prevail with today’s Justices if the counsel statute hadn’t lapsed after Ken Starr’s investigation of Bill Clinton.
Judge Silberman believed in judicial restraint, a philosophy he had absorbed at Harvard Law School in the 1950s when many Democrats and Republicans subscribed it. He lamented in recent years that every Democratic judge has abandoned that view in favor of activist judging, while some libertarian GOP judges have done the same.
An example of restraint that went against his policy preferences was the ObamaCare case in 2011. His appellate opinion found against the constitutional challenge to the law under the Commerce Clause, citing the Supreme Court precedent of Wickard v. Filburn (1942). He disliked ObamaCare as policy but felt obliged to follow precedent as a lower-court judge.
Silberman also wielded significant influence as a public official and legal mentor. His roles included Labor Department solicitor and deputy attorney general in the 1970s, ambassador to Yugoslavia, member of the Foreign Intelligence Surveillance Court’s review panel, and co-chair of the Robb-Silberman commission on intelligence leading to the Iraq war.
With former Senator Chuck Robb, the Robb-Silberman commission made a historic contribution by identifying major intelligence failures but putting to rest the partisan claims that intelligence had been deliberately skewed to support the 2003 invasion. The judge considered it his most important act of public service.
Congress asked him to testify as deputy AG on the confidential files of the late FBI director J. Edgar Hoover, which he was obliged to read. He wrote in our pages in 2005 that reading the files was the “single worst experience of my long governmental service.” He vowed to take the secrets he learned about political figures to his grave, and so he did.
Silberman’s influence is also felt far and wide in the vast network of clerks and associates who populate the federal judiciary and government. His former clerks include Justice Amy Coney Barrett, the leading appellate litigator Paul Clement, and countless others. His behind-the-scenes counsel will be missed, not least by some of the current Supreme Court Justices, but his legacy as a model judge and public servant will live on.
Appeared in the October 3, 2022, print edition.
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