Today in Supreme Court History: December 8, 1902

12/8/1902: Justice Oliver Wendell Holmes takes the oath.

Justice Oliver Wendell Holmes

Comments

[Dan Schiavetta]

Chew Heong v. United States, 112 U.S. 536 (decided December 8, 1884): Chinese Exclusion Act (requiring certificate for reentry) did not apply to those who left the country before the Act went into effect

Shapiro v. McManus, 577 U.S. 39 (decided December 8, 2015): Constitutional challenges to Congressional reapportionments must be referred to three-judge panel (appeal from which is one of the only remaining direct, non-discretionary appeal routes to the Supreme Court, and I think the only one directly from the trial level) (trial court had treated referral as discretionary)

Mohawk Industries v. Carpenter, 558 U.S. 100 (decided December 8, 2009): order denying claim of attorney-client privilege is not immediately appealable (I suppose the only thing to do if disclosure would put your client in some kind of outside jeopardy is to flout the order and get cited for contempt, but that order’s not appealable either)

[David Nieporent]

Contempt is appealable collaterally if it's criminal contempt.

Also, one can seek a writ of mandamus.

[Stephen Lathrop]

Blackman, Oliver Wendell Holmes was not even a lawyer, let alone a Justice of the Supreme Court. Please try at least to get the names right.

[apedad]

Huh???

https://en.wikipedia.org/wiki/Oliver_Wendell_Holmes_Jr.

There's a difference between the Jr and the Sr (not a lawyer or a justice).

[Dan Schiavetta]

True, Josh should have said "Jr."

The father was a pretty interesting guy, a precursor to Freud in his view of the unconscious. It was a "given" that his child would be a high achiever and sometimes the son resented it -- for example, when he was injured during the Civil War and his father visited him, Jr. blew him off. I wonder what the father (and his coterie of high achieving Brahmins) thought when young Oliver chose law as his life's work?

[apedad]

Brahmins!

And this is good old Boston,
The home of the bean and the cod,
Where the Lowells speak only to Cabots,
And the Cabots speak only to God.

[Syd Henderson]

Putting "Justice" before the name is enough to distinguish them. But we do need to distinguish between our John Marshall Harlans (on the Supreme Court) and Johann Strausses (in music).

[Stephen Lathrop]

Henderson — It is not enough to distinguish them, because for decades while they both lived neither had that title. Moreover, in his days at Harvard, Holmes Jr. precociously distinguished himself in the study of philosophy, alongside the founders of the school of American Pragmatism, with whom he associated while they did their seminal work. Such general intellectual endeavor tends to associate memory of that period of the life of Holmes, Jr. with the distinguished life of Holmes, Sr., more than it associates Holmes, Jr. with his later career.

[Bob from Ohio]

Jr. and Sr. are not part of a name.

The justice's dad was also dead when he became a justice. So, he was no longer a junior.

[Mr. Bumble]

Got nothing else to bitch about today Mr. Know It All?
There is no hard, fast rule on dropping Jr after the death of Sr. (in this case Sr. died in 1894) but:
In our LawProse Lesson of May 2013, we cited six authorities published from 1937 to 2003 insisting that the “Jr.” be dropped upon the father’s death.

[Mr. Bumble]

Link to the source:
https://lawprose.org/lawprose-lesson-224-rethinking-the-dropping-of-jr/

[Stephen Lathrop]

Mr. Bumble — Thanks for giving me something more general to bitch about. As usual, a lawyerly take on a broad issue should not be dispositive—no matter the arrogant inclination of the lawyers in question to suppose they should run everything. There are hard and fast rules in history and journalism to spell the names right, and keep them unambiguous. I would have thought lawyers would be sticklers for that too, but of course you know better.

[Mr. Bumble]

…except that this was not “a lawyerly take on a broad issue should not be dispositive—no matter the arrogant inclination of the lawyers in question to suppose they should run everything.” It was derived from style guides on proper usage such as Garner’s Modern English Usage and as you should be aware there are little “hard and fast rules” when it come to language, especially in English.

[Syd Henderson]

I'd rather keep the "Jr." since both father and son are pretty famous.

[Stephen Lathrop]

Exactly. Absent specificity in name, someone only lightly familiar with the history is invited to conflate them. I recall doing that myself in high school.

[Mr. Bumble]

Congratulations to Syd for having been promoted by Stephen to the Emily Post position here at the VC.

[F.D. Wolf]

In 1901, industrialists and financiers E. H. Harriman, James J. Hill, J.P. Morgan, and their associates formed the Northern Securities Company, a holding corporation that purchased a majority of the stock in both the Great Northern and Northen Pacific Railway Companies, two competing railroads that ran roughly parallel lines from the Great Lakes to Puget Sound on the West Coast. President Roosevelt believed this an illegal monopoly and brought one of the earliest and largest cases under the Sherman Antitrust Act of 1890. Northern Securities Co. v. United States, 193 U.S. 197 (1904).

In a 5-4 decision, the Court held that the Northern Securities Company constituted an illegal combination. Justice Holmes dissented. Though he had won the case, President Roosevelt was incensed by the perceived betrayal of his appointee's siding with the railroads. Roosevelt fumed, ""I could carve out of a banana a judge with more backbone than that!"

Holmes' opinion included his famous declaration that, "Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment." Id. at 400 (Holmes, J., dissenting).

[Dan Schiavetta]

Holmes was quotable.

"The life of the law is not logic but experience."

"It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV. It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."

"The law is always approaching, and never reaching, consistency. It is forever adopting new principles from life at one end, and it always retains old ones from history at the other, which have not yet been absorbed or sloughed off. It will become entirely consistent only when it ceases to grow." (sounds Darwinian)

"A word is the skin of a living thought."

That's just off the top of my head. Lots more I'm sure (including the infamous "three generations of imbeciles is enough").

[F.D. Wolf]

He was that. I note at this point, he had been on the bench about 16 months, yet is comfortable enough to essentially call his colleagues idiots.

[Dan Schiavetta]

He had already been on the highest court in Massachusetts for 20 years, the last 4 as Chief Judge, had written a still-acclaimed (though in my view boring) book in 1881, “The Common Law”, knew lots of judges, and probably knew for a fact that he was smarter than his S.Ct. colleagues. He was probably pretty supercilious. I think exaggerated facial hair is (or was) a sign of egotism, not only with judges but with orchestra conductors and well-known authors.

The largest ego I’ve ever been in front of was Charles Brieant in the Southern District. He had a Holmesian mustache and a life-size portrait of himself on the side wall. I enjoyed irritating him by pretending not to know how to pronounce his name (“It’s ‘Bryant’, not ‘Bree-ant’!").

[The Margrave of Azilia]

Giving moral relativism a bad name:

“If, in the long run, the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community, the only meaning of free speech is that they should be given their chance and have their way.”

https://supreme.justia.com/cases/federal/us/268/652/