During her confirmation hearings last week, Elena Kagan made the case for judicial restraint by citing Progressive Era Supreme Court Justice Oliver Wendell Holmes, one of the Court’s most outspoken champions of judicial deference to the will of the majority. As Kagan told the Senate Judiciary Committee:
I would go back I think to Oliver Wendell Holmes on this. He was this judge who lived in the early 20th Century— hated a lot of the legislation that was being enacted during those years but insisted that if the people wanted it, it was their right to go hang themselves. Now, that‘s not always the case but there is substantial deference due to political branches.
It was a curious choice of judicial heroes. After all, Holmes is perhaps most famous—or infamous—for writing the majority opinion in Buck v. Bell (1927), where he deferred to the Virginia lawmakers that had passed a statute permitting the forced sterilization of the “feebleminded and socially inadequate.” Judicial restraint didn’t work out so well in that one.
Jeffrey Rosen, a liberal law professor and legal affairs editor at The New Republic, also noticed Kagan’s unfortunate admiration for Justice Holmes. So he took to The New York Times to suggest a better judicial hero: Justice Louis Brandeis. “Like Holmes,” Rosen writes, “Brandeis was committed to upholding laws passed by state legislatures and Congress in most cases. But instead of sneering at the progressive laws, Brandeis eloquently defended their economic and moral justice.”
The problem with Brandeis’ approach is nicely captured by the phrase in most cases. When it came to Progressive Era restrictions on economic liberty, Brandeis advocated judicial restraint, thus leaving the states free to violate the economic rights of their citizens. Yet when those same state governments regulated free speech, Brandeis sprang into action and urged the courts to strike down the offending laws.
Unfortunately, this selective form of judicial engagement represents the approach of most liberals and conservatives today, with each side typically asking the courts to protect its preferred rights while leaving other rights at the mercy of legislative majorities. With Holmes and Brandeis as her models, Kagan should fit right in on the Court.