From a reader:
While I share your low opinion of Holmes as a jurist, I think that you’re incorrect in ascribing it to “the fact that progressives were running wild and he wanted to rationalize giving them a free hand.” I think it’s pretty widely accepted that Holmes was a capitalist and social darwinist of the first order and had little personal sympathy for progressive causes. So while I think his judicial philosophy was fundamentally misguided in many ways, I don’t think you can argue his dedication to it.
I should really be doing this next door at the LF Blog, but I brought it up here. I think this reader is almost entirely wrong. Holmes was not a capitalist and social Darwinist, at least not in the way this reader seems to mean.
First, the phrase “social Darwinist” is horribly misused these days to describe eugenicists, and Holmes was certainly a eugenicist. Social Darwinists — an invidious term invented by progressives — were the supposed followers and heirs of Herbert Spencer. But here’s the thing, Spencer was a radical, laissez-faire liberal. The progressives, who were almost uniformly statist-eugenicists of one stripe or another, were “Reform Darwinists.” They wanted to use Darwinian theory to shape the people, build a better race, weed out the feeble-minded and degenerate. They loathed poor Herbert Spencer because all of this was an affront to his libertarian sensibilities. “Social Darwinism” has come to mean all things evil and Hitlerite having to do with eugenics, when in fact the folks who were far closer to Hitlerite were progressives like Herbert Croly, Margaret Sanger, and Holmes himself. Here’s the opening paragraph to Thomas Leonard’s fantastic 2003 paper in the journal History of Political Economy on progressive economists and eugenics:
Oliver Wendell Holmes was made a Progressive lion upon his pithy dissent to the U.S. Supreme Court’s landmark decision to overturn a New York statute restricting (male) bakers’working hours. “The 14thAmendment,” said Holmes famously, “does not enact the Social Statics of Mr. Herbert Spencer.”1 Twenty-two years later, in another well-known case, Holmes wrote for the majority, which upheld the constitutionality of a Virginia law proposing involuntary sterilization of persons believed to be mentally retarded—the “feebleminded,” in the jargon of the day. “The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes,” Holmes wrote in Buck v. Bell (1927). “Three generations of imbeciles,” Holmes volunteered, “is enough.”
In a 1927 letter to Harold Laski, Holmes wrote of his ruling in Buck v. Bell: “I . . . delivered an opinion upholding the constitutionality of a state law for sterilizing imbeciles the other day—and felt that I was getting near the first principle of real reform.” He went on to tell Laski how amused he was when his colleagues took exception to his “rather brutal words . . . that made them mad.” In a 1915 Illinois Law Review article, Holmes wrote that his “starting point for an ideal for the law” would be the “co-ordinated human effort . . . to build a race.”
That is not social Darwinism. That is reform Darwinism, which is to say, mainstream progressivism. Holmes showed judicial restraint in the face of rampant progressive experimentation, which was precisely what the progressives wanted, except when they wanted statism from the bench, and Holmes gave them that too.