Judicial Empathy and Justice Oliver Wendell Holmes

Damon W. Root | June 3, 2009

Over at Liberty & Power, historian Paul Moreno, author of the superb Black Americans and Organized Labor, has a long and fascinating post looking at the problems with several previous empathy-driven Supreme Court nominations. As Moreno notes, President Theodore Roosevelt told his friend and ally Sen. Henry Cabot Lodge that it was "eminently desirable that our Supreme Court should show in unmistakable fashion their entire sympathy with all proper effort to secure the most favorable possible consideration for the men who most need that consideration." To that end, Roosevelt appointed progressive hero Oliver Wendell Holmes to the Court in 1902. Here's Moreno on how that worked out:

Roosevelt particularly liked Holmes' opinions in labor cases, for he expressed more sympathy for labor unions than most judges of his day. But TR was mostly interested in Holmes' views on the emerging American empire. Shortly after the Spanish-American War, President Theodore Roosevelt was concerned that the Supreme Court might insist that all constitutional guarantees extended to our newly-acquired empire-in popular parlance, that "the Constitution follows the flag." In 1902, TR sought and obtained a pledge from Holmes that he would not apply this standard. Holmes then lied to the press about his secret meeting with the President. He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiian....

For most of his career, Holmes really didn't believe that there were any constitutional limits at all to government power. He advocated the complete separation of law and morality, writing, "I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether," he wrote, "and other words adopted which should convey legal ideas uncolored by anything outside the law." He continued, "Manifestly... nothing but confusion of thought can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law." Essentially, he thought that the majority had the power to impose its will on the minority, for good or ill. In 1873 he wrote that "It is no sufficient condemnation of legislation that it favors one class at the expense of another, for much or all legislation does that.... Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else." Holmes himself confessed in 1919 that he had come "devilish near to believing that ‘might makes right.'"

Much more here.

Comments

|6.3.09 @ 5:43PM|#

Holmes has a point.

Most people's constitutional arguments go like this: I think policy X is good policy. Therefore X is constitutional. Policy Y is bad policy, and is therefore unconstitutional.

This is bullshit. There are many, many terrible yet wholly constitutional policies. There are many arguably good policies that are flatly unconstitutional. Most of the damage the supreme court has done has been in trying to jam unconstitutional "good" policies into constitutionality.

If people thought of constitutionality without imputing moral value to it, at least constitutional law would be logically coherent, which is something.

|6.3.09 @ 5:49PM|#

There are many arguably good policies that are flatly unconstitutional.

Name one.

-jcr

LibertyMark|6.3.09 @ 5:50PM|#

I have always taught my kids that the law and morality are not always related.

Just because something is illegal does not make it immoral, just as something being legal does not make it moral.

There really is only the economic aspect of it: something being illegal makes the cost/risk of that thing higher.

And, yes, evaluating the constitutionality of a law from a purely logical point of view (no reference at all to morality) would have saved our Republic.

The Magic Latina|6.3.09 @ 5:57PM|#

"There are many arguably good policies that are flatly unconstitutional"

Affirmative Action.

LibertyMark|6.3.09 @ 6:01PM|#

Name one

I won't speak for Toxic, but the scenario I was thinking about goes like this:

[In front of the Supreme Court]
Lawyer: "Your honor, this law is essential! If we allow this law to stand, thousands of babies will be saved from certain death!"

The never-existing ideal justice: "Ok. Is the federal government empowered to do this law by the explicit and original intent of the Constitution?"

Lawyer: "No"

Justice: "The law is overturned. No more talk about babies, please."

|6.3.09 @ 6:34PM|#

Three generations of imbeciles are enough.

|6.3.09 @ 6:35PM|#

Holmes is a hero to many progressives and legal positivists. All that a libertarian needs to know about this overrated scoundrel.

¢|6.3.09 @ 6:37PM|#

Name one.

The floors of every government building should, at unpredictable intervals, open into fathomless pits of fat people's used "intimate razors."

Alan Vanneman|6.3.09 @ 6:39PM|#

"devilish near to believing that 'might makes right.'"

John Galt, move over!

|6.3.09 @ 6:47PM|#

Holmes is very slippery. He didn't spend a lot of time explaining himself. It's easier with Holmes than with most historical figures to make him look like whatever persuasion one wants by picking quotations from his work.

He was like Posner that way. He had his own weird assortment of views that didn't correspond with those of any established group.

|6.3.09 @ 6:51PM|#

Ever read and study his dissent in Lochner?

He wrote, "But a constitution is not intended to embody a particular economic theory, whether of paternalism......or of laissez faire."

He also wrote, "this case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further."

His dissent can be summarized as follows:

Two wolves and a sheep..

|6.3.09 @ 6:53PM|#

JP-

Friends of liberty could never claim him as one of their own.

Pendulum|6.3.09 @ 7:26PM|#

>There are many, many terrible yet wholly constitutional policies.

Yes, such as, if you're applying the plain text of the constitution or original meaning:
-Segregation
-Bans on interracial marriage
-State bans of unpopular speech (ever notice that it says "Congress" shall make no law?)
-State permission to create whatever oppressive criminal laws they'd like to (don't tell me you by that artificial, Supreme Court created, fancy-schmancy liberal 'incorporation' garbage).

Surely the Supreme Court has done some good by "jamming unconstitutional 'good' policies into the constitution"? I'm curious to hear your response.

MNG|6.3.09 @ 7:59PM|#

LM
Holmes would likely have agreed with you on economic theory. He just thought he, as a judge, cannot impose that theory on you and everyone else when the Constitution is silent on it.

"He dutifully voted with the majority in the so-called Insular Cases, which held, for example that the right to a jury trial did not extend to Filipinos or Hawaiian"

Uhh, I think those rulings were kind of unanimous...It's kind of strange to hate on Holmes for voting the way that everyone did.

Robert|6.3.09 @ 10:36PM|#

I have always taught my kids that the law and morality are not always related.

Don't they learn that from game rules? There's no morality in a full house's beating a flush.

robc|6.3.09 @ 11:25PM|#

It's kind of strange to hate on Holmes for voting the way that everyone did.

MNG - That makes no fucking sense. Why cant unanimous decisions be horribly fucking wrong?

I will hate on him for not writing a lone dissent.

Mad Max|6.3.09 @ 11:44PM|#

LibertyMark,

Arguments before the Supreme Court nowadays are more likely to go like this:

[In front of the Supreme Court]

Lawyer: "Your honor, this state law is essential! If we allow this law to stand, thousands of babies will be saved from certain death!"

Up-to-date, caring compassionate Justice: "Ok. Are the federal courts empowered to invalidate this law by the explicit and original intent of the Constitution?"

Lawyer: "No. The Constitution leaves it up to the states how they want to protect babies."

Caring, Compassionate Justice: "A state law the protects babies? And there's nothing in the original understanding of the Constitution to prohibit it? It's obviously unconstitional. Dumb babies - let them die!"

JB|6.4.09 @ 1:06AM|#

Judges are lawyers and nearly every lawyer is a blithering idiot.

Thus it is no surprise that judges are absolute morons.

|6.4.09 @ 9:44AM|#

Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else.

|6.4.09 @ 9:45AM|#

Legislation is necessarily a means by which a body, having the power, puts burdens which are disagreeable to them on the shoulders of somebody else..

Fucking HTML.

He's right about that. He's wrong that this means it has no moral dimension. I would have thought that the logical conclusion would be, not that legislation therefor be given deference, but rather that legislation should therefor be given skeptical scrutiny.

|6.4.09 @ 9:48AM|#

Yet another reason to hate Teddy Roosevelt's guts.