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Why Oliver Wendell Holmes's Reputation Has Declined:

For most of the last century, Holmes's greatest defenders and promoters have been left-wing "Progressives." But Holmes's views on a range of issues are now repugnant to the left. Beyond a general solicitude for (some types of) freedom of expression, Holmes had no regard for civil rights or civil liberties. See, e.g., his majority opinion in Buck v. Bell (upholding coercive sterilizaton, which he clearly thought was not only constitutional but a good idea), his dissent in Meyer v. Nebraska (arguing that states should be allowed to ban the teaching of foreign languages), his (unpublished) dissent in Buchanan v. Warley (arguing that banning blacks from buying houses in white neighborhoods is a reasonable regulation of property and should be upheld). A sign of the times is Alschuer's very critical biography, Law Without Values. An even more significant sign of the times is that if I'm remembering correctly, this book received a very positive front page review in the New York Times.

A few on the right, such as Judge Posner, continue to admire Holmes, but Holmes's skepticism, Social Darwinism, commitment to moral relativism, and general contempt for "values" and individual rights is hardly likely to win him any friends among either libertarians or moral traditionalists (see, e.g., this review in National Review). I'd even say that I hear far more criticism of Holmes emanating from every ideological corner than I hear praise.

Related Posts (on one page):

  1. Why Oliver Wendell Holmes's Reputation Has Declined:
  2. Holmes and Reputation:
Tyrone Slothrop (mail) (www):
Is Alschuler on the left? I wouldn't have thought so.
4.4.2006 6:29pm
Cornellian (mail):
I always thought Holmes was overrated, though I didn't think of that in liberal or conservative terms. I'm not even sure it's possible to overlay the current meanings of "liberal" and "conservative" over people and issues in the (reasonably) distant past, where political thought and the issues of the day were very different.
4.4.2006 6:33pm
BU2L (mail):
Who is going to make the first joke about 3 generations of imbeciles?
4.4.2006 6:39pm
JLR (mail) (www):
BU2L -- see the comment thread of Professor Kerr's post that prompted Professor Bernstein's reply.

It's important to note that it would seem that those who wish to preserve Roe v. Wade above all else should criticize Justice Holmes, for Meyer v. Nebraska is a key precedent that supports Griswold v. Connecticut and Roe v. Wade. (I discuss how Meyer is a key precedent for Griswold and Roe in the comment thread of Professor Kerr's post that prompted Professor Bernstein's reply.)
4.4.2006 6:43pm
Sean Wilson (mail):
... well, I would say that reflects more poorly on today's generation of scholars than it does Holmes. Why the left would disparage Holmes for having an antagnoism to a priori jurisprudence that was NOT constructed in favor of liberal pathology is indeed an indication of how facile some scholars on the left can be. Holmes' legacy is the rejection of law as a self-contained system of reasoning, which naturally led to the ascendency of positivism over natural law and allowed Holmes to champion liberal social policy (free speech) only where texualism permitted. The fact that law professors would now regard this important historical legacy as being "tarnished" merely because it does not produce enough liberal decisions really says a great deal about how criticism in law schools is degenerating into nothing but the presentistic fashion of an academic generation's political hegemony. Long live Holmes.
4.4.2006 7:03pm
DavidBernstein (mail):
There's nothing textualist about finding that the 14th Amendment's due process clause protects a right of freedom of speech against the states. In fact, Holmes admitted this, and basically said that since the rest of the court is protecting other rights I don't like under the due process clause, I'll try to protect the right I think is most important. So much for textualist principle.
4.4.2006 7:12pm
SR (mail):
"But Holmes's views on a range of issues are now repugnant to the left."


I think many, if not all, of Holmes' personal views have always been repugnant to the Left. He was by, all accounts, an extremely elitist and detached person. Despite his Lochner dissent, He never had any sympathy for workers and thought unions werew a terrible idea.

Holmes' reputation was always based, I thought, on his views of the law and jurisprudence, which made him revered by the legal realists and New Deal fans of judicial restraint in the realm of economic regulation. From what I can tell, liberals and "progressives" have not (completely) abandoned legal realism nor a deferential judicial attitude towards economic regulation. Other than one biography (which for all I know may just hilight the fact that, as most everyone agrees, his personal views were repugnant), I fail to see any evidence that his reputation has declined.
4.4.2006 7:15pm
Matt Barr (mail) (www):
As a Mencken fan, I recall this probably-obituary from 1932 (I say probably because Holmes' retirement and death both occurred that year and I don't know which prompted HLM to write):

The average American judge, as everyone knows, is a mere rabbinical automaton, with no more give and take in his mind than you will find in the mind of a terrier watching a rathole. He converts the law into a series of rubber-stamps, and brings them down upon the scalped skulls of the just and unjust alike. The alternative to him, as commonly conceived, is quite as bad -- an uplifter in a black robe, eagerly gulping every new brand of Peruna that comes out, and converting his pulpit into a sort of soap-box. [Me: there were "activist judges" even pre-New Deal!]

Mr. Justice Holmes was neither, and he was better than either. He was under no illusions about the law. He knew very well that its aim was not to bring in the millenium, but simply to keep the peace. But he believed that keeping the peace was an art that could be practised in various ways, and that if one of them was by using a club then another was by employing a feather.

Thus the Liberals who long for tickling with a great and tragic longing, were occasionally lifted to the heights of ecstasy by the learned judge's operations, and in fact soared so high that they were out of earshot of the next day's thwack of the club. I suspect that Dr. Holmes himself, when he heard of their enthusiasm, was quite as much amused as flattered.


Paragraph breaks added. Reminds you a little of Swingin' Justice Kennedy today. Another part of the probably-obituary reminds one of some of the criticism of Mr. Justice Scalia:

The weak spot in his reasoning, if I may presume to suggest such a thing, was his tacit assumption that the voice of the legislature was the voice of the people. There is, in fact, no reason for confusing the people and the legislature: the two, in these later years, are quite distinct. The legislature, like the executive, has ceased, save indirectly, to be even the creature of the people: it is the creature, in the main, of pressure groups, and most of them, it must be manifest, are of dubious wisdom and even more dubious honesty.

Laws are no longer made by a rational process of public discussion; they are made by a process of blackmail and intimidation, and they are executed in the same manner. The typical lawmaker of today is a man wholly devoid of principle -- a mere counter in a grotesque and knavish game. If the right pressure could be applied to him he would be cheerfully in favor of polygamy, astrology or cannibalism.


I wonder what Henry really thought.

Taken from an old blog post of mine; didn't have to retype!
4.4.2006 7:24pm
GMUSL 2L (mail):
SR -- wait, you mean unions AREN'T a terrible idea, especially with all their Congressionally-mandated protections and exemptions? I'd love to opinion polls of New Yorkers in general in November and January, just to see how they've changed.
4.4.2006 7:26pm
Goober (mail):
Yeesh. So lemme get this straight: The reason Lochner is more approved of now than in the past (to the chagrin of liberals) is that the stock of Holmes has fallen. But the reason that Holmes's stock has fallen is that his views are out of favor of liberals? You're imparting a curious power to "the left"---if the left could somehow magically control popular attitudes, why wouldn't they just direct the attitudes about Lochner itself?
4.4.2006 7:33pm
Hank:

As a Mencken fan, I recall this probably-obituary from 1932 (I say probably because Holmes' retirement and death both occurred that year and I don't know which prompted HLM to write):


Holmes retired in 1932 but died in 1935.
4.4.2006 7:35pm
Matt Barr (mail) (www):
Hank: That settles that, then! (Thanks)
4.4.2006 7:37pm
Hank:
And the quotation that Matt Barr provides is from a review of The Dissenting Opinions of Mr. Justice Holmes published in the American Mercury, May 1930, with additions from the American Mercury, May 1932. (I do not know whether the particular passage that Matt Barr quotes was in the 1930 or 1932 issue.) The review is reprinted in A Mencken Chrestomathy and in The Vintage Mencken.
4.4.2006 7:42pm
CEB:
For what it's worth, Buck v. Bell is still good law, and was cited in Roe v. Wade, among many other cases.
4.4.2006 7:43pm
josh:
Has any of the commentators here read Alchuler's book? He was by far my favorite prof in law school. Definitely a liberal.

My recollection about his argument in the book, which he worked on for about 10 years (with significant comment from Judge Posner) and published at least a year or two ago, is that Holmes' Social Darwinism approach to decision making was framed in his horrific experiences as an officer in the Civil War.

Moreover, my understanding of the genesis of his First Amendment decisions came not from a strong value for free speech, but from his kinship with Brandeis (Holmes was a man of few friends).

I could barely make it through sean wilson's ... uh ... prolix post, but I think there are plenty of reasons to at least begin peeling back the sheen from Holmes' legacy.

I had the good fortune after Alchuler's book came out to hear a talk with him, Posner and Chicago's Cardianl Joseph Bernadin (a wicked-smart fellow in his own right). Alchuler and Bernadin, rightly I think, came down a little hard on Holmes, with Posner obviuously defending (what can you expect from someone who entirely rejects top-down reasoning, arguing that most decisions are "political" anyway?) But when the talk turned to the natural law, which Bernadin of course supported and Alchuler took no strong position, Posner made the best crack, "Whose natural law are we talking about here?
4.4.2006 8:03pm
josh:
think i misspelled alschuler's name throughout. its been awhile
4.4.2006 8:05pm
Andrew Hyman (mail) (www):
Various pundits will idolize and demonize Justice Holmes as it serves their own purposes to do so. I would hope that more clear-sighted scholars will see through the dishonesty.

"Buck v. Bell" is the current mantra of those who wish to marginalize Justice Holmes and his jurisprudence. But since when is the author of a Supreme Court opinion more responsible than all of those who willingly signed onto that opinion? There was only one dissent in that case, and it was not a dissent from the liberally lionized Justice Brandeis, nor from the rotund Chief Justice Taft, nor from the esteemed Justices Stone or Sutherland. They all concurred.

Make no mistake, what was done to Buck was a disgrace. All available evidence now indicates that she was not even mildly retarded. And the Virginians who did so much to ruin her life deserve the blame, including the legislators and judges of that great state. Justice Holmes, however, was not a Virginian, nor was he presented with an accurate set of facts from the courts of Virginia. Are Supreme Court Justices now expected to do independent fact-finding?

It would be interesting to discover how many of the people who now denounce Justice Holmes' opinion in Buck v. Bell also supported the Supreme Court's role in depriving another woman of her ability to procreate (Terri Schiavo). Let's just say that there is no small amount of hypocrisy in the revisionist history of Justice Oliver Wendell Holmes.

As far as Holmes' dissent in Meyer v. Nebraska is concerned (the text of his dissent is in the companion case of Bartels v. Iowa), that was one of the greatest dissents in the history of the Supreme Court. But we have revisionists nowadays who distort that dissent. The statutes in question did not flatly prohibit teaching of foreign languages. On the contrary, both the Nebraska law and the Iowa law stated that, "Languages other than the English language may be taught as languages only, after a pupil shall have attained and successfully passed the eighth grade." Holmes emphasized as much: "Youth is the time when familiarity with a language is established and if there are section in the State where a child would hear only Polish or French or German spoken at home I am not prepared to say that it is unreasonable to provide that in his early years he shall hear and speak only English at school."

It seems to me fitting that supporters of unlimited judicial power now lionize the author of the Court's Meyer and Bartels opinions, even though Justice McReynolds was a racist slimeball. But the great dissenter in that case is smeared as some kind of cretin. Holmes did not believe in law without values, as some now contend. Far from it. He believed that the values of the American people, as expressed in the democratic process, take precedence over the subjective personal values of five robed masters in Washington D.C.

Regarding Buchanan v. Warley, that decision declared that residential segregation ordinances were unconstitutional, and surely they were. But can the Supreme Court legitimately say what the law is when it does not have a legitimate case or controversy before it? Of course not, and that was the main point that Holmes was making: "I cannot but feel a doubt whether the suit should be entertained without some evidence that it is not a manufactured case." Justice Holmes drafted a dissent, but ultimately realized he was mistaken about whether the case had been manufactured, and he joined the Court's great unanimous opinion in that case. There's no shame in that.

Those who seek to revise the Constitution, so that it becomes a blank check for courts to substitute their personal judgment for that of the majority --- on virtually any matter that the courts deem "fundamental" --- will doubtlessly continue to smear Holmes and distort the intent of the framers. But that doesn't mean that the rest of us have to meekly submit to this kind of outrageous distortion.
4.4.2006 8:07pm
Hank:

Make no mistake, what was done to Buck was a disgrace. All available evidence now indicates that she was not even mildly retarded.

It would have been a disgrace anyway, as the right to procreate does not depend upon one's intelligence.


It would be interesting to discover how many of the people who now denounce Justice Holmes' opinion in Buck v. Bell also supported the Supreme Court's role in depriving another woman of her ability to procreate (Terri Schiavo).

I do not believe that people in Ms. Schiavo's condition have the ability to procreate. In any event, you'll recall that the court ordered that Ms. Schiavo's apparent wishes be complied with.
4.4.2006 8:13pm
Andrew Hyman (mail) (www):
Hank, a person's right to procreate may be a fundamental natural right, but it is not a constitutional right. The Supreme Court of Wisonsin explained as much not very long ago. Maybe it should be a constitutional right, and maybe there should be a constitutional amendment to make it one, but it's not there now. Congress and the Presdient can do many horrible things (e.g. drop an atom bomb on Toronto) that are not unconstitutional, even though they violate every moral principle.

As far as Terri Sciavo is concerned, the U.S. District Court in Florida declined to do any fact-finding as to her wishes. Perhaps the Florida courts were correct, and perhaps not. But I know one thing: if a brain-damaged person can only be sterilized and/or euthanized if there is evidence that she wished such a thing, then there will be lots of testimony to that effect whether its truthful testimony or not.
4.4.2006 8:22pm
Mike BUSL07 (mail) (www):
Andrew,

Drawing a procreation parallel between Terri Schiavo and Carrie Buck is specious. Clearly enough, Schiavo was unable to procreate long before her case came up the courts. Conceding, only for sake of argument, that the courts deprived her of her right to live, one thing no one deprived her of was her right or ability to procreate. The comparison to Buck just ins't there. We didn't have Ginsburg coming down with a, "10 years (or whatever it was) on a feeding tube is enough."
4.4.2006 8:35pm
Dilan Esper (mail) (www):
Holmes' reputation in some areas of constitutional law, and the personal esteem that people hold in him, may be declining somewhat, but I don't think he's going to leave the pantheon of "great justices" anytime soon. First, he was a hugely influential common law judge in Massachusetts, someone rivaled only by Cardozo and Hand in terms of influence on the common law. Second, he wrote some groundbreaking articles on jurisprudence and legal philosophy which are still widely read and admired today (and even by many who don't agree with his jurisprudential philosophy). Third, he could turn a memorable phrase-- this got him in trouble in Buck v. Bell ("three generations of imbeciles"), but lawyers still remember many of his best lines, such as his discussion of the "free trade of ideas" in his Abrams dissent, and yes, that bit about the Constitution not enacting Mr. Herbert Spenser's Social Statics is well remembered as well. Fourth, he's a giant in the history of the First Amendment, both for articulating the rationale for restricting speech (in Schenck) and later for pulling back and writing thundering dissents that ultimately persuaded the Court majority to give greater recognition to free speech than it had been giving to it.

I realize this can be frustrating to people who think that Holmes got a lot of things wrong or didn't have any respect for values, but he's going to influential for a long, long time.
4.4.2006 8:43pm
Mike BUSL07 (mail) (www):
Speaking of Cardozo - if anyone has an undeservedly high reputation, it's him. Amorphous, flowery opinions, punctuated by an overriding desire for the "right" result, no matter what the cost to judicial integrity. Anyone read Wood v. Lucy lately? Ugh. (It was last year, I know, I still shudder).
4.4.2006 8:47pm
Andrew Hyman (mail) (www):
So, if Terri Schiavo could have procreated, then she shouldn't have been euthanized? What a strange technicality to rely upon. If you want to be technical, of course she could procreate, just like Dolly the Sheep could.

If the "wishes" of the victim are determinative, I have no doubt that Carrie Buck's "doctors" would have testified that --- had she been competent --- then she would have wished not to have "imbecilic" children. Isn't that obvious? She was railroaded into sterilization, and the people responsible would not have hesitated to sign affidavits galore that no non-retarded person would want to have imbecilic children.

As for the fact that no court said "10 years on a feeding tube is enough," the rhetoric of a judge is virtually irrelevant compared to what the judge actually does. If Roger Taney's opinion in Dred Scott had been full of compassionate and caring rhetoric about wanting to do what's best for the slaves, his ultimate holding would have been no less fualty.
4.4.2006 8:48pm
Mike BUSL07 (mail) (www):
Andrew, I don't know where to start responding to that largely indecipherable post. Techincality I want it to turn on? Umm, no. The obvious distinction is not ability to procreate, but (1) meaningful ability to express present personal wishes (present in Buck, absent in Schiavo); (2) court's desire to effect patient's wishes, to the extent they can be ascertained (absent in Buck, present in Schiavo).


[T]he rhetoric of a judge is virtually irrelevant compared to what the judge actually does. If Roger Taney's opinion in Dred Scott had been full of compassionate and caring rhetoric about wanting to do what's best for the slaves, his ultimate holding would have been no less fualty.



As long as you can divine the inner thoughts of judges, particularly when these thoughts contradict their opinions, you are going to win the argument every time. You should try that in front of a judge one day - "Your Honor, he wrote X, but according to my magic 8-ball he meant Y."
4.4.2006 9:01pm
Andrew Hyman (mail) (www):
Mike, my point about Justice Holmes' statement regarding "three generations of imbeciles" is that --- had he not written that specific sentence --- his opinion would have been virtually just as good, or just as bad, depending on your point of view. In my personal view, that particular sentence was an injudicious thing for him to have said, for example because it really didn't matter whether Holmes agreed with the Virginia law or not. He should have kept silent about whether or not he personally agreed with the statute. But surely his opinion's holding would have been just as correct or just as incorrect regardless of that sentence, which (mind you) can also be attributed to Justices Brandeis, Sutherland, Stone, and Chief Justice Taft. It was "the opinion of the Court." They should have insisted that he leave it out.

Regarding the link between Buck and Schiavo, I'll repeat myself at the risk of being indecipherable to you. If the "wishes" of the victim are determinative, I have no doubt that Carrie Buck's "doctors" would have testified that --- had she been diagnosed as a competent adult --- then she would have wished not to have "imbecilic" children. Isn't that obvious?
4.4.2006 9:11pm
Charles Chapman (mail) (www):
Josh,

Very interesting. Also significant is Holmes belief in the American philosophy of pragmaism. The influence of the Civil War on the thought of Holmes and other pragmitists is a theme of the book The Metaphysical Club.

As I recall, Holmes and other pragmatists were so horrified by the losses in the Civil War that they rejected the absolute values that "pure" (my term) liberals and conservatives admire (albeit sometimes different values) precisely becaue they accept no compromise, and in their lifetimes the Civil War was the result.
4.4.2006 9:18pm
Mike BUSL07 (mail) (www):
Andrew - I'm glad we agree on something. The "imbeciles" sentence was not germane to the holding of the case. Then again, we wouldn't be remembering the case as much as we do, if not for those words. (Incidentally, I believe that the State can't sterilize, but I also believe that we shouldn't have to pay to support everyone's kids, i.e., get pregnant at your own risk).

I disagree with the latter part of your post. You again take on the pretense of being able to somehow intuit the words of long-dead doctors in a very complicated situation. If you are saying that fact-finding is an imperfect pursuit, well sure, it's never perfect. If you come up with a better idea, you can be a very rich and famous man. (Oh, and "civil law" is not a better idea).

Anyway, I apologize if I've been unduly harsh - Schiavo advocacy really sets me off for some reason. Now I'm back to work, so good night.
4.4.2006 9:19pm
Mike BUSL07 (mail) (www):
Charles, "Metaphysical Club" also lends support to the claim, mentioned either here or in one of the related threads, that Holmes was an unapologetic elitist. I don't have the book near me, but I believe there was a letter he wrote home from the War, where he said something along the lines of, 90% of people are on their knees and most of the rest can barely think for themselves. (Not very nice, but too true).
4.4.2006 9:22pm
Andrew Hyman (mail) (www):
Just for the record, in response to what Mike said, I am not intuiting the words of long-dead doctors. I know for a fact that they were arrogant, pompous, slimeballs. Carrie Buck's sterilization was based on a wrong "diagnosis," and her lawyer conspired with her "doctors" to ensure that the sterilization law would be upheld. She had been raped by a relative of her foster parents, and that's why she was institutionalized. What happened to her --- and the people who did it to her --- were disgraceful in every way. There is no doubt that they would have testified "it's what Carrie would want if she were competent," if that had been necessary for them to get the sterilization law upheld.

Incidentally, I don't recall having said or implied in this thread what the federal courts should or shouldn't have done in the Schiavo case.
4.4.2006 9:30pm
Hank:
Charles Chapman: What you say about the influence of the Civil War on Holmes is one of Alschuler's theses; Alschuler believes that it made Holmes a cynic who rejected values and believed that might makes right. The Civil War did not have this effect on the pragmatists, such as William James and Charles Peirce, and I don't recall that either Alschuler or Louis Menand in The Metaphysical Club claims that it did. In addition, though Holmes was a member of that club, the extent to which he was a pragmatist is debatable.
4.4.2006 10:42pm
Dave Hardy (mail) (www):
I once heard another fellow speaking about a law school course on personality and legal philosophy--he remarked that some of the case studies were stretches, but Holmes' seemed dead on. He went off to the civil war as a young idealist, preserve the union, end slavery, and all of that.

Took a bullet thru the lung at Ball's Crossing, if I recall, an operation which was sort of a mini-Gallopoli... cross the Potomac and stop on the low ground while giving the other side lots of time to occupy all the high ground and then blast you to pieces ... and wrote home that he was coughing up blood and thought he was dying. Went thru a lot else.

All of which would function to create, in a man of formitable intellect and style, a judge who (1) had disdain for abstraction or theory; (2) had relatively less regard for human life (and thus could write off imbeciles and sterilization with ease).
4.4.2006 11:34pm
Andrew Hyman (mail) (www):
Perhaps most influential in Holmes' personal attitude toward sterilization was the fact that he himself had no children, evidently due to an illness that his wife suffered soon after they were married. That illness of his wife operated in a way to sterilize Holmes himself. He viewed such a thing as simply one of those burdens that must be endured for the greater good, just like service in the military must be endured for the greater good.

Holmes wrote in Buck v. Bell that sterilization can allow severely retarded people to be deinstitutionalized, and to function in society, instead of having to be sequestered from the opposite sex in an institution. He thus saw sterilization as potentially being a humane alternative. His low regard for conceiving disabled children can hardly be compared to having a low regard for disabled adults. And I don't think he did have a low regard for human life. In an era of rampant racism and anti-semitism, he practiced neither. It seems to me that one can love and cherish a severely disable person, while still hoping that such a person will adopt children instead of passing along a disability.

Anyway, not having read the book "Law Without Values," I probably shouldn't stick my neck out much farther defending Holmes. But certainly Buck v. Bell is a very very thin basis for supposing that Justice Holmes had any less regard for human life than did the concurring Justices. And his opinion in Meyer is no basis at all.
4.5.2006 1:05am
Sara (mail):
I've always felt that the characterization of Holmes as a great progressive should be tempered by the acknowledgement that he was a man (and a jurist) formed by the 19th Century. Calling him a progressive seems like an anachronistic miscategorization, especially after the upheaval of WWI made his worldview if not irrelevant, then certainly outdated.
4.5.2006 1:06am
Bezuhov (mail):
In defense of Andrew, there's a clear parallel in the two cases in that they involve the deference of higher courts to the findings-of-fact of the lower. It is not inconceivable, should the science and/or mores change, that the Schaivo decision will one day be looked upon in a similar light to Buck v. Bell today, or as a legislative power grab. Or both.
4.5.2006 2:44am
Bezuhov (mail):
"All of which would function to create, in a man of formitable intellect and style, a judge who (1) had disdain for abstraction or theory; (2) had relatively less regard for human life (and thus could write off imbeciles and sterilization with ease)."

This would make sense if (1) the union had not thereby been maintained (2) slavery had not thereby ended. The two great "abstract" principles contested won the day.

A more plausible theory would be (1) he aged and (2) pragmatism correlates with age.
4.5.2006 2:48am
Bezuhov (mail):
Sara, see:

http://en.wikipedia.org/wiki/Progressive_Era
4.5.2006 2:50am
josh:
I have to agree with sara's assessment (and state ignorance about bezuhov's wikipedia response), but also note that it cuts both ways. Despite Andrew Hyman's defensiveness (seriously, debating an attempt to analogize Buck v Bell with the Schaivo mess is just silly -- i'm not sure there's any value in debating someone who frames the issue in schaivo as "depriving another woman of her ability to procreate"), the point Alschuler makes is not entirely "anti-Holmes." He's just pointing out that the man's formative years need to be assessed and recognized as having an effect on his decisions. Natural law did not hold much sway.

I think Holmes will forever be lionized, and appropriately so. My point about Sara's comment cutting both ways (and Alschuler's thesis, I think) is that the man was a product of his times and experiences for better and worse.
4.5.2006 12:04pm
CJColucci (mail):
Reputation as what? And declined among whom? I doubt that anyone who had even a passing acquaintance with his life and work has had any reason in recent years to revise his or her views, whatever they were. The idea that he was some kind of "progressive" was always a crock, resting on his willingness to let the legislature pass laws he, personally, thought ill-advised, and his attachment to free speech. (Would Justice Scalia be as deferential to democratic processes if Congress began passing more laws he didn't like?) He has never appealed to traditionalist conservatives (his odious harmony of views on some subjects dear to them notwithstanding) because he never accepted that there was anything "out there" to ground one's opinions on policy. He has never appealed to libertarians (free speech aside) because he never doubted the power of government to govern. All of this is old news to anyone who has any business having an opinion. His admirers (who often disagree with many of his decisions, not to mention his policy views) admire a smart, learned, tough-minded, clear-sighted judge who was susceptible to rational arguments based on realities. In the judge business, that's about as good as it gets unless your main criterion is whether the judge will rule your way, or your client's way. Who now thinks differently?
4.5.2006 12:22pm
Andrew Hyman (mail) (www):
"I'm not sure there's any value in debating someone who frames the issue in schaivo [sic] as 'depriving another woman of her ability to procreate.'"

I'm not sure there's any value in debating someone who misrepresents what I say. There were many issues in Schiavo's case, and it would be foolish to say that "the issue" was any one particular thing. It would also be foolish to deny that there were some similarities between what happened to Schiavo and what happened to Buck. Both were alleged to have mental problems. The fate of both was determined by the courts of their respective states. In Schiavo's case, those advocating for her death argued what "she would have wanted," and the same argument could have been made that Carrie Buck "would not have wanted" imbecilic children if she could have made a competent decision. It's also obvious that what happened to Schiavo would have happened regardless of whether she was still in a condition to procreate naturally, or with artificial assistance, or not at all. Of course, there are differences in the two cases as well: Schiavo was not starved to death in order to prevent her from having children, and Carrie Buck was not killed at all.
4.5.2006 4:14pm