Jesse Walker’s recent post about pundits quoting Justice Oliver Wendell Holmes in defense of their own calls to censor the anti-Islam film Innocence of Muslims brought to mind a question I’ve long pondered about the famous Supreme Court justice: Namely, what explains the old villain’s enduring appeal among America’s legal and political elites?
For instance, in her 2010 Supreme Court confirmation hearings, Elena Kagan cited Holmes as a guiding light for how Supreme Court justices should behave on the bench, telling 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.
Two years later, in his majority opinion upholding the Patient Protection and Affordable Care Act, a.k.a. Obamacare, Chief Justice John Roberts made nearly the same argument, citing Holmes in an opinion that declared, “It is not our job to protect the people from the consequences of their political choices.”
Judicial deference to the will of the majority was the hallmark of Holmes’ long career, during which he voted in favor of upholding laws ranging from bans on foreign-language instruction for children to wartime restrictions on free speech to legislation permitting the forced sterilization of the “unfit.” H.L. Mencken once described Holmes’ judicial philosophy as “giving the legislature full head-room,” and he wasn’t off the mark. As Holmes himself admitted in a 1919 letter, he came “devilish near to believing that might makes right.”
So why does this authoritarian eugenicist keep popping back into vogue? The short answer is that Holmes’ stark vision of majority rule remains highly useful to both liberals and conservatives. On the left, Holmes stands for the proposition that the courts should uphold the vast majority of economic regulations. On the right, he stands for keeping judges from striking down restrictions on abortion. In both cases, he’s a go-to legal authority for giving lawmakers free rein.