The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
How does Judge Posner reconcile his great fondness and respect for Justice Holmes's famous dissent in Lochner v. New York with his criticism in Slate of Chief Justice Roberts's dissent in Obergefell (the gay marriage case)?
Posner has written that Holmes's dissent is the greatest Supreme Court opinion in the last 100 years. Lest we think that this praise is just for Holmes's rhetoric, and that he substantively disagrees with Holmes's critique of the majority, Posner has added that "Holmes's one-page dissent says everything that needs to be said to unmask any pretense that the majority was engaged in something that might be called legal analysis."
Roberts, meanwhile, cites Holmes's dissent in support of his opinion in Obergefell, and surely a Holmesian should agree with Roberts. Holmes's short opinion is full of flip aphorisms (and indeed, is almost entirely composed of flip aphorisms) that support Roberts's position.
"This case is decided upon an economic [social] theory which a large part of the country does not entertain"? Check.
The "right of a majority to embody their opinions in law"? Check.
"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics" (i.e., does not adopt Spencer's libertarian philosophy)? Check.
The Constitution "is made for people of fundamentally differing views"? Check.
"I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us." Check!
Is Justice Roberts's opinion nevertheless condemnation-worthy, as Posner suggests in Slate, because it's "heartless"?
Maybe, but Holmes used the same analysis he pioneered in his Lochner dissent to enthusiastically uphold mandatory sterilization of alleged mental defectives ("three generations of imbeciles are enough") and to challenge the openly racist Justice James McReynolds for the title of "Justice least sympathetic to the rights of African-Americans in the early twentieth century."
Moreover, to challenge Roberts' Obergefell opinion Posner invokes John Stuart Mill's libertarian theory from On Liberty. Mill's theory isn't significantly different from Spencer's libertarian "law of equal freedom," propounded in Social Statics, which drew Holmes's wrath.
So I can see loving Holmes's dissent in Lochner and Roberts's dissent in Obergefell, or hating both of them, but I can't see how one can reconcile adoration of Holmes's dissent in Lochner with excoriation of Roberts's dissent in Obergefell, unless Posner is willing to concede that whatever Holmes's rhetorical power, the substance of his opinion was bunk.
I'd be happy to post a response from Judge Posner, should he choose to send one.