History

Justice Oliver Wendell Kagan

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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.

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  1. Apparently, three generations of imbeciles really was enough. Now look what we’ve got.

  2. But instead of sneering at the progressive laws, Brandeis eloquently defended their economic and moral justice.

    Great. Another Hero of the Supreme Court to hate.

  3. The list of dead Justices right-thinking people are allowed to claim as ghostly guides is very short: Brandeis, Holmes, Black, Douglas, Marshall, Blackmun, Brennan?that’s about it. Buncha dicks.

    Bushrod Washington was the man, man. His name was Bushrod. Only Thomas seems to cite him. Dude needs a fan club.

  4. So who would others around hre hold up as a model justice?

    (And you can’t choose anyone currently serving)

      1. Interesting choice

        From Wikipedia:

        Beyond Lochner, Peckham is perhaps best known for his expansive interpretation of the Sherman antitrust law, which he saw as protecting sturdy small businessmen against unfair corporate competition. His opinions on civil rights for African Americans are remarkable only for the abandonment of his usual antistatism in voting to uphold Jim Crow laws – the most notable being Plessy v. Ferguson (1896), in which he silently joined the majority. On the other hand, he and Justice David Brewer were far more likely than any of their colleagues to vote in favor of Chinese litigants in the many immigration cases that came before the Court.

    1. Sandra Day O’Connor was pretty decent in Raich and Kelo among others.

      1. …though her infamous “appearance of corruption” opinion in McConnell v FEC was completely and utterly execrable.

      2. As is her “affirmative action really is discriminatory, but I think we should keep it for another 25 years” swing vote.

      3. She also wrote the “mystery passage” in Planned Parenthood v. Casey.

  5. 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.”

    My hero! Just think of the healthcare savings!

  6. Economic liberties (aside from basic property rights) have to be snuck into the BoR via the 9th amendment, while free speech is right there in black and white in the 1st. So Brandeis’ approach is not as selective as you posit.

  7. Judicial restraint didn’t work out so well in that one.

    There’s a good reason to criticize Holmes’ ruling on the case, but this is not it – the Supreme Court is not tasked with striking down laws that “don’t work out so well”.

  8. I have no objection to the feeble-minded, per se; I just wish we could keep their grape-jelly-smeared paw prints off the levers of political power.

  9. The last Oliver Wendell Holmes thread was fun.

  10. Buck v. Bell remains good law.

  11. Buck v Bell?

    I though Holmes was most famous for Federal Baseball Club v. National League.

  12. where he deferred to the Virginia lawmakers that had passed a statute permitting the forced sterilization of the “feebleminded and socially inadequate.”

    So I take it Kagan wasn’t born in Virginia?

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