Bench Memos

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Holmes, Thinker and Jurist


Over at The Corner, Jonah is curious about what folks in these precincts think of Oliver Wendell Holmes, Jr., whom he calls a “reform Darwinist.”  I don’t admire him as much as Thomas Sowell seems to, that’s for sure.  But Sowell has certainly produced a greatest-hits catalogue of Holmesianisms that show him at his best.

I think Holmes’s most pernicious influence lay in his indefatigable salesmanship for “legal realism,” which advanced the idea that judges are policymakers just like legislators and executives–they just use different techniques and institutional tools.  He was great at turning a phrase, a gift that got him mistaken for being someone deeply philosophical.  But for the most part Holmes’s real intellectual work predated his Supreme Court service, in works like The Common Law and “The Path of the Law.”  In works such as these he certainly had a lasting influence on how American lawyers think of the common law, and I’d say it was not a good influence.

On constitutional law as a Supreme Court justice, Holmes’s legacy is more of a mixed bag.  He was no originalist, but he was often a sound spokesman for judicial restraint.  Was this just his way of advancing the Progressive agenda?  I wouldn’t say so.  And if he was right, I wouldn’t care much about his motives.  He was right in Lochner, and in the 1918 commerce clause case on child labor, Hammer v. Dagenhart.  Stripped of its needlessly brutal language endorsing eugenics, even Buck v. Bell is defensible on its merits, and it was decided 8-1, after all, with the majority including some far more decent men than Holmes.  (I’m ready to be accused now of an enthusiasm for eugenics myself or at least of an awful heartlessness, so I will just note that that doesn’t follow.)  I actually have more of a problem with where Justice Louis Brandeis led him in the 1920s in the free-speech cases that came to the Court after Schenck v. U.S.  Holmes and Brandeis planted the premises that decades later bore fruit in exciting little pleasantries like Nazis marching in Skokie.

UPDATE: I could’ve waited and just said, “I’m with Ramesh.”


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