Laurence H. Silberman ‘61, an influential jurist who had a long career as an appeals court judge, a diplomat, and a government official died on October 2.
Silberman was appointed to the U.S. Court of Appeals for the D.C. Circuit in 1985 by President Ronald Reagan. He sat for decades on the court — widely considered the second-most important judicial body in the country after the Supreme Court — and heard cases into 2022. On June 11, 2008, George W. Bush awarded Silberman the Presidential Medal of Freedom. During his many years on the court, Silberman shaped Second Amendment jurisprudence and advocated for the philosophy of “judicial restraint.”
Silberman earned a bachelor’s degree in history at Dartmouth in 1957 and, after service in the U.S. Army, a law degree at Harvard Law School in 1961. “I wanted to be a lawyer from the time I was 6 years old. There never was any question in my mind as to what I would do.” he said in a 2017 interview with former Solicitor General Paul Clement ‘92, a former clerk, for an oral history. At Harvard Law School, Silberman said “I was taught and imbued with notions of judicial restraint, which I’d like to think [have] never left me.”
Before joining the bench, Silberman had a career in government service as a lawyer in the Nixon and Ford administrations and as President Gerald Ford’s ambassador to Yugoslavia.
Silberman worked in the Labor Department in the early 1970s, helping draft the Occupational Safety and Health Act, a workplace-safety law, and the Employee Retirement Income Security Act, or ERISA, which establishes standards for pension plans in private industry. Silberman once threatened to resign from the department after the Nixon administration attempted to block the nomination of an African American labor scholar.
Silberman became deputy attorney general in 1974, during the final months of Richard Nixon’s presidency. During his Senate confirmation hearings, he pledged to respect the independence of the special prosecutor investigating the Watergate scandal. While in the Justice Department, he conducted a review of former FBI Director J. Edgar Hoover’s secret files. He called that assignment “the single worst experience” of his career in government in a piece he wrote in the Wall Street Journal. “I intend to take to my grave nasty bits of information on various political figures — some still active.
“As bad as the dirt collection business was, perhaps even worse was the evidence that he had allowed — even offered — the bureau to be used by presidents for nakedly political purposes,” Silberman wrote. “I have always thought that the most heinous act in which a democratic government can engage is to use its law enforcement machinery for political ends.”
In his years on the court, Judge Silberman issued many important decisions, and arguably among the most influential was Parker v. District of Columbia in 2007, finding that a District of Columbia ordinance regulating gun ownership was in violation of Second Amendment protections of the right to bear arms. The case moved on to the Supreme Court, which voted 5-4 to strike down the D.C. law. The majority opinion of Justice Antonin Scalia ’60 in Heller v. District of Columbia reflected Silberman’s views that Second Amendment protections apply not only to militia members, but also to individuals.
“Judge Silberman had a powerful legal mind, enormous energy, and a passion for freedom,” Supreme Court Chief Justice John G. Roberts Jr. ’79 said in a statement after Silberman’s death. “Our country benefited greatly from that combination. And there was never a dull moment when he was in the room.”
Towards the beginning of his time on the bench, Silberman wrote a majority opinion in 1988 that would have invalidated the law that created an independent counsel to investigate government officials, including the president, accused of certain federal crimes. He saw the law as a violation of the separation of powers. The Supreme Court subsequently voted to uphold the independent counsel law, with Scalia writing in dissent. The law was allowed to expire in 1999.
Silberman also voted to uphold the 2010 Affordable Care Act — one of the signature policy achievements of President Barack Obama ’91. The judge noted that he disliked the law but argued that it was supported by the “commerce clause” of the Constitution allowing Congress to regulate trade and business between and among the states.
One of Silberman’s most controversial opinions, according to the Washington Post, was a dissent in a 2021 libel case, in which he argued that the unanimous 1964 Supreme Court decision in New York Times v. Sullivan, a case that protects journalists from libel suits from public figures, should be reevaluated.
From 1981 to 1985, Silberman served as a member of the General Advisory Committee on Arms Control and Disarmament and the Department of Defense Policy Board. He was appointed by the chief justice to a term (1996 to 2003) as a member of the Foreign Intelligence Surveillance Court’s Review Panel. President George W. Bush named him co-chairman of a presidential commission that issued a critical report on the intelligence failures leading to the U.S. invasion of Iraq in 2003.
Over the years, he taught at Georgetown University Law Center, NYU Law School, and Harvard Law School. When Silberman returned to Harvard Law School in the fall of 2017 for the HLS in the Arts festival, he participated with other members of the Parody and the Drama Society from over the years in reception and performance. He had played a judge his 3L year in the Harvard Law musical show that was a precursor to the Parody.
In October of last year, Silberman received the first annual Justice Clarence Thomas First Principles Award for his judicial service from the Gray Center at Antonin Scalia Law School at George Mason University. The Wall Street Journal editorial board on that occasion called him “one of the all-time giants of the federal bench” and wrote that “he may be the most influential judge never to have sat on the Supreme Court.”