Supreme Court

What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?


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.

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  1. So why does this authoritarian eugenicist keep popping back into vogue?

    power worship is instinct

    1. No, it’s the moustache. Definitely the moustache.

      1. The dude abides.

  2. “What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?”

    A wicked moustache, acool name and a penchant for kneeling before authoritay?

    1. All of the above, but mainly the ‘stache.

  3. Now, that’s not always the case but there is substantial deference due to political branches

    This is why. Because he held and promoted an attitude that politicians love.

  4. Tulpa makes the same argument all the time, its part of the reason he opposed jury nullification.

    We should change the law instead.

  5. “It is not our job to protect the people from the consequences of their political choices.”

    Every time I hear this or see it in an article I can’t help but get angry. It’s not just your job, it’s quite nearly your ONLY FUCKING JOB.

    1. I thought the job of the courts to justify anything that the government does.

    2. Every time somebody bitches about this it makes me want to jump out a fucking window rather than confront the sheer willful stupidity humans are capable of.

      Judges aren’t allowed to overturn laws because they don’t agree with them, or because they think the laws will be harmful. They can only overturn actions by the government that were actually illegal. If Congress passes something incredibly stupid, and the president signs it, but neither of them did nothing unconstitutional in the process – the debate is purely political, in other words – the proper role of the courts in a challenge to that stupid, stupid law is to tell the challengers, “tough shit.” That’s all he’s saying there. Not only is that not complicated, it’s a libertarian fucking ideal! That’s how the courts should operate! Now if only the legislature and executive would hold up their end of the bargain and not pass insanely stupid laws.

      1. I really don’t like that word “unconstitutional”.

        It implies that the government can do anything that is not expressly forbidden, as opposed to only being allowed to do that which is authorized.

        The former is what has gotten the country into so much trouble, whereas the latter is the “libertarian ideal”.

      2. That would be fine if this and other similar statements of judicial deference to the legislature were being offered in this spirit; “We’ll strike down the unconstitutional stuff and let the other stuff go” does in fact describe exactly what the courts should do.

        But that’s not how Holmes meant the term or how others mean the term.

        Supporters of judicial deference make no bones about the fact that courts should do whatever they can to contort the law to find a way to find a challenged law to be constitutional. John Roberts rewriting the ACA to find it constitutional is an ideal for supporters of judicial deference. The Kelo court ruling that anything a legislature asserts is a public purpose is a public purpose in fact is an ideal for the supporters of judicial deference.

        I submit that the “libertarian” ideal would be judicial hostility – a judge should walk into the courtroom looking for a reason to strike the law down, and should be as critical as possible, and only those laws that withstand determined and brutal attempts to find them unconstitutional should be allowed to stand.

    3. I don’t interpret the comment the same way. I don’t think Roberts was anything “anything the legislature does is constitutional”. I think he was saying “i think this is a fucking incredibly stupid and terrible law, but it’s not unconstitutional”.

      1. Roberts pretty clearly views his job as finding a way – some way, any way – to find legislation constitutional.

        All his craft and creativity should be bent on the task of finding a way to jury rig a half-ass argument to find legislation constitutional. Somehow.

  6. The short answer is that Holmes’ stark vision of majority rule remains highly useful to both liberals and conservatives.

    So it all falls down to expediency and pragmatism. Who woulda thunk it?

    1. Mencken on Justice Holmes put it this way, “…he was actually no more than an advocate of the rights of law-makers. There, indeed, is the clue to his whole jurisprudence. He believed that the law-making bodies should be free to experiment almost ad libitum, that the courts should not call a halt upon them until they clearly passed the uttermost bounds of reason, that everything should be sacrificed to their autonomy, including, apparently, even the Bill of Rights.”

      Expediency and pragmatism writ large.

  7. Man Crushed by Steamroller On Orders of Chinese Officials

    The victim, He Zhi Hua, refused to accept a paltry payment from the government which has forcefully evicted Changsha Village locals in order to re-appropriate their land for commercial use.

    When Hua began a protest by lying down on the spot through which construction vehicles had to pass, the local Vice Mayor ordered workers for the state-owned company to murder Hua by driving over his body with a huge road-flattening truck.

    Shocking images show Hua’s pulverized brains and his mangled body in the aftermath of the state-sponsored execution.…..officials/

    1. I don’t like his ends, but I do like his means. I’ve long had the fantasy of running over protesters like that, but never thought of taking it to the cartoonish extreme of using a steamroller. Good show!

      Of course I wouldn’t want that done to a protester I agreed with, just the ones I disagree with. And then tan them and use them as a rug or something.

    2. Paul Krugman: *fap, fap, fap, fap, fap, fap, fap, fap, fap, fap*

      1. Tom Friedman: *catch, catch, catch, catch, catch, catch, catch, catch, catch*

    3. Jesus that is horrifying.

      1. Honestly, what has to happen to you, to your country, etc., that you actually have a guy steamrolled?

        1. The said guy eating alive your prize fish?

          Sorry, I could not resist.

  8. What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?

    Hmmm, a naked lust for power?

  9. According to a document that’s, like, a bazillion years old or something:

    The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several states, shall be bound by oath or affirmation, to support this Constitution….

    The Constitution. Not the whims of the howling mob. Which part of that needs to be “construed”?

  10. “It is not our job to protect the people from the consequences of their political choices.”

    But it IS your job to preserve, protect and defend the Constitution.

    Fucking bozo.

  11. It is not our job to protect the people from the consequences of their political choices.

    This is a complete abdication of judicial review as it relates to the constitutionality of statutes. After all, unconstitutional statutes are produced by elected officials, so overturning them is “protecting the people from the consequences of their political choices”, no?

  12. Maybe because most Americans believe in “democracy”–that is to say, “rule of the people”–as opposed to “gerontocracy”–“rule of a handful of geezers in robes who make people laugh at their bad jokes on pain of getting their butts kicked out of court”. I know libertarians have a hard time with elections, because they can’t win them.

    1. I couldn’t care less if most Americans believe in what you call “democracy.” We aren’t a democracy, thank Cthulu.

    2. If the people wanted to, say, repeal the 13th amendment, and had the votes to do it, that would merely mean that it was time for the people to die.

      It wouldn’t mean that repealing the 13th Amendment was somehow a good idea.

      But even that does too much to dignify the majoritarians, since they almost never even bother to amend the Constitution when they don’t like it. They just ignore it, and get Quisling justices to come up with crack-brained post hoc justifications for what they have done.

    3. Shorter Alan: “Dred Scott was decided correctly.”

      1. Shorter Alan: “Dred Scott was decided correctly derp.”

      2. Since what made the Dred Scott decision so unpopular was that it declared an act of Congress to be unconstitutional, the first SCt decision to do so since Marbury vs. Madison (which was the first), your comment is not on point.

        1. And Alan slithers back because he has a convenient excuse to respond while dodging the point. “Slavery is cool, if enough people want it” – Alan Vanneman.

    4. Most proponents of unbounded democracy simultaneously believe that a massive portion, perhaps the majority, of the population are so unfit to run their own lives responsibly that they require a strong and intrusive government; and that those same incompetent idiots should be entrusted with choosing that government.

      1. Close to Bastiat there. On purpose? or is it a great minds thing?

  13. “What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?”

    Let’s just say I’m truly impressed by this man and leave it at that.

  14. Wasn’t someone recently pointing out how the “shout fire in a crowded theater” remark was in reference to his ruling that the government could ban anti-war activists from handing out anti-draft flyers during WWI?

    There is no way in hell that ruling would survive today. Yet people still take the “shouting fire” analogy as a reason why freedom of speech should be limited.

  15. What Explains the Enduring Appeal of Justice Oliver Wendell Holmes?

    Umm, the epic ‘stache, duh.

  16. OK, but why is he also held in such high esteem by people who are neither “liberals” nor “conservatives”? He seems to be one of those “great legal minds” that lawyers tout all the time.

  17. Holmes was the penultimate progressive apologist from the bench. His opinion can be rendered down to a single maxim: Your rights are subject to the needs/whims of the collective.

  18. I think of Holmes sort of like Christians think of Jesus.

    Okay, that came out wrong.

    But when some sects have theorized about who was saved or damned, they figured that people in undiscovered-by-Europeans lands, who had never had the opportunity to hear the Gospel, shouldn’t be damned–it wouldn’t be fair, because they had never had a chance to know God’s word.

    So at what point can I consider someone who makes positive reference to Holmes damned? Most people don’t know the case that the “fire” bullshit is actually from; most people don’t know he advocated for forced sterilization (and in such revolting terms). But this stuff is all available to any American with internet access or a public library. Can I just damn anyone who hasn’t done the research to find out that their guy, their great legal mind, was actually one of the world’s biggest douches?

    1. This is a common issue for me. Most people just don’t fucking know anything. I mean, they don’t know history, don’t know economics, don’t know any philosophy. Oh, and this isn’t just reality TV addicts. My polisci professor freshman year had a doctorate from Georgetown in international relations, but did not know what the Monroe Doctrine was. I mean, just wrap your head around that. She has PhD from one of the top 20 schools in the country. She teaches at a West Coast university (she was only at my school for a year). I mean it would be one thing if she couldn’t solve a calculus problem or design a physics experiment, but her PhD is in international relations. How do you not know that?

      Like this guy on my Facebook who sees himself as a Steve Jobs type. Basically like shriek, but not as stupid. Well, just as stupid, but not as profane. Posts this one day:

      “Startups create jobs, publicly traded corporations don’t. Fact.”

      Got that? Toyota has never opened up a factory, according to this genius. The giant city in China Apple built to make iGadgets doesn’t exist in his mind.

      The amount of people living today who actually know what I would consider to be the basic knowledge base a person needs to make a rational decision is very small.

      1. I guess you’re right, considering that extract from Howard Stern that was posted in another blog. It looks like a great deal of supposed knowledge of past y current events is actually rumor, so it would behoove us to figure out which rumors are most susceptible to propag’n.

  19. “So why does this authoritarian eugenicist keep popping back into vogue? ”

    Because the only thing we learned from WW2 was that racism and religious bigotry were bad?

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