Bench Memos

NRO’s home for judicial news and analysis.

Obama & Holmes


In introducing Judge Sotomayor and discussing how he came to nominate her, President Obama acknowledged that the most important qualities for a justice are “rigorous intellect” and “a recognition of the limits of the judicial role,” which includes “approach[ing] decisions without any particular ideology or agenda, but rather a commitment to impartial justice.” All of which is great to hear—especially the last part, even if we know he really doesn’t mean it.  But then of course the president immediately explains why these qualities alone are “insufficient”:

For as Supreme Court Justice Oliver Wendell Holmes once said, “The life of the law has not been logic; it has been experience.”  Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers.  It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.  And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

This is a gross distortion of Holmes—who, incidentally, wrote this line before he was a judge, let alone a “Supreme Court Justice”—for at least two reasons and probably three. 

Holmes was speaking descriptively, not normatively—that is, he wasn’t saying that judges should favor experience over logic, just that they did.  Indeed, Holmes acknowledged that these non-logical factors were not all admirable, including as they did “the felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men ….”

Second, the line comes from the first paragraph in Holmes’s first lecture on The Common Law, and so he was writing about “the common law,” duh, and not constitutional or statutory law.  That is, he was writing mostly about cases in which judges really had no publicly enacted laws to apply.  So the phenomenon of judges ignoring legal texts in favor of their own policy preferences—the definition of “judicial activism”—was not something that Holmes was describing, let alone endorsing.

Finally, Holmes was writing about the incremental development of the law over centuries.  So, again, he was not talking about how an individual judge should be reading the constitutional or statutory text in a specific case today.


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