Constitutional Law
Aug. 3, 2002
Constitutional Scholar Gerald Gunther
SACRAMENTO - Gerald Gunther, a Stanford law professor and constitutional law scholar who wrote a textbook used by thousands of law students during the past 40 years, died Tuesday night at his home on the Stanford campus. He was 75.
The cause was lung cancer, said his son, Andrew Gunther.
Gunther joined the Stanford Law School faculty in 1962. In 1965, he published the first version of "Constitutional Law," a thick volume of case studies that became the most widely used text on the subject in the nation's law schools.
The latest version of the casebook was co-written with Stanford Law School Dean Kathleen Sullivan, who called Gunther "a beloved teacher to four decades of law students" and "a scholar of impeccable intellectual integrity."
The late Supreme Court Justice Lewis F. Powell Jr. wrote in 1994 that the casebook was "the leading publication in the field, from which a generation of American lawyers have learned constitutional law."
Gunther was also the author of "Learned Hand: The Man and the Judge," a 1994 biography of his mentor, Judge Learned Hand, of the 2nd U.S. Circuit Court of Appeals in New York.
Gunther clerked for Hand in 1953 and 1954. He spent 20 years researching and writing the 800-page biography, which a reviewer for the New York Times called "the fullest, most sensitive, most penetrating of judicial biographies."
Gunther himself was a mentor to some of the nation's leading judges and lawyers, including U.S. Supreme Court Justice Ruth Bader Ginsburg, whom he helped find her first job as a clerk.
Gunther, who was on the Columbia Law School faculty from 1956 to 1962, was one of Ginsburg's professors.
When Ginsburg graduated from Columbia in 1959, she had two strikes against her, she said: "I was a woman and I had a 4-year-old child."
Gunther "got me my clerkship by pressuring every judge in the Southern District [of New York]," Ginsburg said. Gunther had to promise them that "if I didn't work out, he would find a male lawyer to replace me." She was hired by Judge Edmund L. Palmieri of New York.
As a legal scholar, Gunther was a staunch defender of free speech and an opponent of hate speech codes on college campuses.
Gunther's family emigrated from Germany to New York in 1938, when Gunther was 11, after their town's synagogue was destroyed by fire. The family settled in Brooklyn, and Gunther graduated from Brooklyn College and Harvard Law School.
His son, Daniel, a San Francisco lawyer with the California Appellate Project, said his father's devotion to civil rights was a product of his youthful experiences in Germany.
"He was passionate about civil liberties because he had experienced firsthand their absence," Gunther said.
Stanford law professor William Cohen, a close friend and frequent intellectual sparring partner of Gunther's, said his colleague's views on the proper role of judges also were shaped by his upbringing.
"He believed there had to be an external check on ad hoc human decisions," said Cohen, who wrote a constitutional law casebook that competed with Gunther's.
Gunther always insisted that court decisions be firmly grounded in the law and facts of each case, Cohen said.
"His views were that a truly principled decision had to have something to do with how the case was decided," he said. "In my mind that was always subject to question, based on the political realities of a case."
Cohen said Gunther was often critical of the decisions produced by the Supreme Court during the era of Chief Justice Earl Warren. That was true even though Gunther had clerked for Warren in 1954-55 and helped draft the landmark school desegregation ruling Brown v. Board of Education, 347 U.S. 483 (1954).
In fact, Gunther's views on constitutional decision making were in such contrast to his own that he did not look forward to meeting Gunther when he joined the Stanford faculty in 1970, Cohen said.
"On the basis of what Gerry had written, I was sure we'd never get along," Cohen said. "I was clerk for [U.S. Supreme Court Justice] William O. Douglas. Gerry was a clerk for Learned Hand.
"Douglas considered Hand a conservative, a model of an unprincipled activist judge," Cohen said.
But Cohen said he and Gunther grew close over the years.
"He was a loving, kind, gentle person," Cohen said. "We became very good friends. Our disagreements over the years tended to collapse a little. That was partly because the issues changed, and partly because we grew closer together in our views.
"We met in the middle."
In addition to his sons Andrew and Daniel, Gunther is survived by his wife of 53 years, Barbara; a brother, Herbert Gutenstein, of the Bronx, N.Y.; and two grandchildren.
A community memorial service will be held in September.
Wire service reports contributed to this story.
Hudson Sangree
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