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Owh Not So Great



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Jonah has a great article posted today on all things Gonzales, in which he argues that friendship shouldn’t be a qualification. I had one picky point, however. To show that being personable shouldn’t be a qualification, Jonah says: “Oliver Wendell Holmes was a real jerk. But he was a great justice.” Well, he was a jerk. But whether he was a great justice is open to debate. He certainly has a fine reputation as a jurist, which is I’m sure why he jumped to Jonah’s mind. His philosophy was pragmatic, and as such he is regarded by many as the godfather of a movement within the law that now typifies judges like Stephen Breyer—judges who look to their own interpretations of social policy rather than the law to decide cases. OWH was a rabid moral relativist, a fan of eugenics (remember his infamous “three generations of idiots is enough,” which accords with his personal writings on the topic), and he is recognized now by scholars as leading a campaign against the natural law, which students of his often clothed as attacks on legal formalism. His legal reputation is founded mostly on his ability to offer a pithy statement of the law—even if, as was too often the case, there was very little law supporting the pith. Again, I know that Jonah used him as an example because, after Marshall, OWH is probably the best known Justice in the history of the court, and therefore I don’t begrudge him for mentioning Holmes. But OWH wasn’t that great for the law.



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