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.

About the Author
Robert Alt is the president and chief executive officer of The Buckeye Institute, where he also serves on the Board of Directors.
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