Judging Holmes
Another skeptic takes on the grand old skeptic.

By Ramesh Ponnuru, NR senior editor
May 12-13, 2001

Law Without Values: The Life, Work, and Legacy of Justice Holmes, by Albert W. Alschuler (Chicago, 325 pp., $30).

liver Wendell Holmes Jr., the author informs us at the beginning of his book, "is the only justice of the Supreme

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Court to have been the subject of a bestselling historical novel, a hit Broadway play, and a motion picture. A mountain in Alaska bears his name, and when letters could be mailed for 15 cents, he peered from their corners on purple postage stamps."

Holmes seems to have known everyone in the course of his 94 years. His father was a poet and founder of The Atlantic Monthly; Emerson, Hawthorne, and Melville were part of Holmes Sr.'s circle. The younger Holmes's claim to have shouted "Get down, you damn fool!" at Abraham Lincoln during a Civil War battle may have been false, but he was certainly on the same battlefield. He knew both Jameses, and both Roosevelts. One of his last clerks on the Court — Holmes served from 1902 to 1932 — was Alger Hiss.

It is difficult to overstate Justice Holmes's place in the pantheon of American law. He is widely held to have brought American legal thought into the modern age by subjecting it to his skepticism. Left and Right unite in praising Holmes. Since the '20s, liberals have idolized him for his decisions protecting freedom of speech and permitting social-welfare legislation. Con temporary conservatives have tended to claim Holmes as an exemplar of "judicial restraint," since he was willing to uphold the constitutionality of social-welfare legislation he disliked. (He was fond of saying that "if my fellow citizens want to go to hell, I will help them. It's my job.")

Yet there has long been an undercurrent of skepticism about the grand old skeptic himself. Two authorized biographers of Holmes were unable to produce books because of the distaste they acquired for their subject. One of these, Grant Gilmore, summed up ten years of research thus in a lecture at Yale: "The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak."

Gilmore's view is shared by Albert W. Alschuler — with the added indictment that Holmes at best looked on that struggle with detachment, and at worst rooted for the powerful. Law Without Values frankly aims to knock Holmes off his pedestal.

Alschuler argues, as others have, that the horrors of the Civil War killed Holmes's idealism. Holmes was an ardent abolitionist when, at age 20, he volunteered for the war. Three months after he enlisted, he almost died of a serious chest wound at Ball's Bluff. He would be shot through the neck at Antietam, and wounded again at Chancellors ville. He suffered scurvy and dysentery, saw dead men piled up six deep in trenches, learned about army mismanagement. His commitment to abolitionism flagged. Later in life, he would often express disdain for all -isms, abolitionism very much included, and the sort of passionate commitment they inspire.

Holmes's correspondence offers no shortage of examples of this disdain. About a pacifist in World War I, he wrote, "What damned fools people are who believe things. . . . All 'isms seem to me silly — but this hyperaethereal respect for human life seems perhaps the silliest of all." In another letter, he wrote, "I see no reason for attributing to a man a significance different in kind from that which belongs to a baboon or a grain of sand."

He took a similarly jaundiced view of the concepts of rights, truth, and justice. "All my life I have sneered at the natural rights of man." Rights were merely "what a given crowd will fight for." Truth was "what I can't help believing. . . . I can't help preferring port to ditch — water, but I see no ground for supposing that the cosmos shares my weakness." And de gustibus non est disputandum. "[W]hen men differ in taste as to the kind of world they want the only thing to do is go to work killing."

Yet Holmes eventually came to appreciate aspects of the wartime experience that had snuffed out his ideals. The highest expression of that appreciation came in "The Soldier's Faith," an address Holmes gave at Harvard on Memorial Day in 1895: "I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use." Teddy Roosevelt, of course, loved the speech.

Alschuler gives various labels to the philosophy with which Holmes emerged from the war: "existentialism," "noble nihilism," "Darwinism." It is a philosophy that venerates power, struggle, and assertions of will. Holmes has sometimes been described as a "utilitarian," but this is incorrect. He believed that different people inevitably had clashing interests and tastes, and that these differences could not be argued out or aggregated into some common good. The only thing to do is to go to work killing.

It will not do to dismiss Holmes's more troubling remarks, as some of his admirers do, as attempts to shock his correspondents. When a man makes so many such remarks over a period of decades, and when (as we will see) these remarks are consistent with his life's work, it is reasonable to assume he means what he says. Admirers can, it is true, point to other Holmes remarks that suggest that he retained a romantic streak. But on examination, what he is romanticizing usually turns out to be war, will, and death.

To see how Holmes's dark vision affected his legal thought, one need look no further than his seminal article, "The Path of the Law," published in the Harvard Law Review in 1897. In this article he laid out his definition of the law, his "prediction theory": "The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." He also wrote, "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict." The use in law of moral terminology — words such as "duty" and "right" — was an obstacle to "the clearness of our thought." Holmes applied these points to the law of contracts: "The duty to keep a contract at common law means a prediction that you must pay damages if you do not keep it, — and nothing else."

Holmes conceded that the law reflects the prevalent moral sentiments of the time it was made, but wanted to evacuate any moral content from the analysis of law. This view might be criticized for its amorality, and Alschuler does so. But he also argues that it fails as a matter of description. A prediction theory of the law makes unintelligible the notion that a court can get the law wrong. How, for example, can one use that theory to make sense of the dissents Holmes wrote on the Supreme Court? Indeed, the theory offers almost no guidance to any judge. You can't decide a case by predicting how you will decide it. A theory of the law that cannot see the law from a judge's point of view cannot truly describe the law.

Some of Holmes's letters suggest that he also believed that the test of a good law was that it reflected "the dominant force" or "equilibrium of power" in a community. They suggest, as well, that this view was the foundation of Holmes's judicial restraint. In 1914, he wrote to Felix Frankfurter: "I quite agree that a law should be called good if it reflects the will of the dominant forces of the community even if it will take us to hell."

This view is vulnerable to some of the same objections as the prediction theory of the law. What, to begin with, is the dominant power in a community? Most social Darwinists at the time tended to regard the "robber barons" as dominant and to oppose legislation that would weaken them. Holmes appears to have shared this view, but also to have believed that when "the crowd" (as he styled it) manages to enact egalitarian legislation it has shown that it is in fact the dominant power. But this is no solution at all. As Alschuler points out, a judge who strikes down that legislation changes the "equilibrium of power." Like Holmes's prediction theory, the judicial Darwinism he hinted at tended to collapse into the tautology that winners win — which does not do much to guide judges.

While Alschuler denies any intention to question Holmes's greatness, he certainly seems to cut down his every claim to it. Liberals consider Holmes a hero of free speech because he devised the "clear and present danger" test, under which speech can be restricted only if it presents such a danger. Alschuler points out that Holmes did not mean the test to be as protective of speech as the liberals do, and in fact invented it in the course of opinions allowing the jailing of pacifist agitators during World War I.

Alschuler also demolishes the claim that Holmes freed American legal thought from the myth that common law was a logical system that judges needed to deduce. "The life of the law has not been logic: It has been experience," Holmes wrote in The Common Law (1881). Alschuler argues that this de ductivism was long dead by the time Holmes wrote, if indeed it ever lived. None of those who reviewed Holmes's book objected to his empiricism. Holmes probably himself acquired it from other writers, whom he did not cite.

So does Alschuler succeed in taking Holmes down? No. Partly this is because his book is so weird. I will confine myself to one example. In a footnote, Alschuler writes — the ellipses are his — "As Brian Simpson has remarked poetically, '[T]he name "formal ism"...seems to me . . . in general use, to be little more than a . . . term of abuse.'...The rhyme is admittedly the product of my ellipses; Simpson and I should be listed as co-poets." Like I said, weird.

Alschuler is also too quick to pounce on Holmes. His treatment of Buck v. Bell (1927), one of Holmes's most notorious decisions on the Supreme Court, is a case in point. The Court upheld an involuntary-sterilization law, with Holmes — a eugenicist — writing, "Three generations of imbeciles are enough." In a subsequent letter he wrote that "establishing the constitutionality of a law permitting the sterilization of imbeciles . . . gave me pleasure." Let's stipulate that the laws in question were wicked, and that Holmes should not have endorsed them in his decision. Still, are we sure that Holmes's decision was wrong? It's not obvious that legislators lack the constitutional authority to enact such laws, however misguided they may be.

Alschuler's conclusion, however, is surely wrong. He writes, "Support for forced sterilization marked the outer limits of the eugenics movement in America — apart, that is, from the re marks of Justice Holmes and a very few others." This in a paragraph noting that thirty states had approved such legislation.

In the last chapter of Law Without Values, Alschuler blames the spread of Holmesian skepticism about morals for everything from "selfish consumerism" to "child abuse." At one point, he writes, "One cannot blame teen pregnancies on Oliver Wendell Holmes." When an author finds himself having to write such a sentence, it is probably a good idea for him to back up. Even readers who are generally sympathetic to Alschuler's basic idea will find his elaboration of it too scattershot and tossed-off to be persuasive. As they will find this digressive, impish, interesting book. Alschuler mentions Emerson's review of one of Holmes's undergraduate essays: "When you strike at a king, you must kill him." Alschuler does not kill the king.

Which is not to say that the king is not worth going after. Holmes's moral skepticism may not have caused our teen-pregnancy rates, but it did begin the process of detaching the argument for judicial restraint from objective morality. Holmes believed in judicial restraint and in moral skepticism, and he often suggested a connection between the two. He would not "impose his morality" from the bench, to use today's formulation, be cause he did not have much to impose.

It is a style of argument that latter-day advocates of judicial restraint have unfortunately kept alive. Robert Bork, William Rehnquist, and Antonin Scalia have all from time to time argued (or been taken to argue) that judges should not let their moral views about a law affect their decisions about it, because who's to say if their moral views are right? Judges should practice restraint in order to avoid comprehensive theories of justice. This sort of rhetoric has, in turn, inspired a series of fusillades against them by the great conservative scholar Harry Jaffa, who accuses them of moral relativism.

Yet the argument for judicial restraint does not have to be grounded in cognitive humility about morals. Indeed, it cannot be so grounded. Bork, Rehn quist, and Scalia are not skeptics. They believe that it is objectively wrong for a judge to assume powers not granted him by the Constitution. If, on the other hand, there are no moral limits that have objective validityif, as Holmes argued, law is just whatever judges do — then why shouldn't judges do whatever they wish and can? From the 1930s on, liberal "judicial realists" took Holmes's premises to essentially this conclusion.

To escape this trap, conservative jurists would have to recover a mature understanding of natural law. Their fear is that a judge guided by natural law would try to force the laws to reflect moral truth — striking down laws that violate their understanding of natural law. But this is much too crude.

A natural-law judge should reason along the following lines: All of us have valid moral obligations. Among these is the obligation, almost all the time, to follow the positive law, that is, the law enacted by legitimate lawmaking authorities. Judges have this obligation as well. The extent to which judges can look beyond the positive law to address questions of substantive justice is itself a matter of positive law. If the positive law divides institutional authority in a way that imposes constraints on a judge's power to do that, he has to respect those constraints. A natural-law judge in such a system — in our system, for example — has to practice restraint. In so doing, he serves an objective moral good, the rule of law.

We do not reason along these lines because natural law never recovered from the withering scorn ceaselessly directed at it by skeptics such as Holmes. Even if we squabble along the way, we are all on Holmes's path. And that path leads nowhere.