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Why Oliver Wendell Holmes is Grossly Overrated:

In my view, Oliver Wendell Holmes is one of the most overrated justices ever to sit on the Supreme Court, and H.L. Mencken's contemporary critique of Holmes, linked by co-blogger David Bernstein, is a good explanation of why. As Mencken put it, Holmes was no "advocate of the rights of man," but rather "an advocate of the rights of lawmakers." With rare exceptions, he ruled that legislators could do almost anything they wanted, even if it violated the plain text of the Constitution, or the original meaning. Mencken accurately points out that under Holmes' judicial philosophy, "there would be scarcely any brake at all upon lawmaking, and the Bill of Rights would have no more significance than the Code of Manu."

Progressive contemporaries and later liberals defended Holmes because he upheld economic regulations against challenges under the Fourteenth Amendment. But he also deferred to the legislature in upholding forcible sterilization in Buck v. Bell (the famous "three generations of imbeciles is enough" case), and also dissented in landmark civil rights cases such as the peonage cases (which helped prevent southern blacks from being dragooned back into a forced labor system). As Mencken points out, Holmes also upheld fairly egregious restrictions of First Amendment rights during World War I and at other times. His reputation as a free speech civil libertarian mostly rests on a few instances where he deviated from his general pattern.

Perhaps Holmes' ultradeferential jurisprudence could be defended if it were compelled by the text or original meaning of the Constitution. In reality, however, many of his decisions went directly against the text and purpose of the constitutional provision in question. For example, he voted to uphold racially restrictive zoning and peonage laws despite the fact that the Fourteenth Amendment was clearly intended to forbid government-mandated racial discrimination in property and contract rights, and voted to uphold peonage laws despite the plain text of the Thirteenth Amendment, which unequivocally forbids "involuntary servitude."

One could also defend Holmes on the ground that he was merely a product of his times. On many of these issues, however, he was actually in dissent, which suggests that he wasn't merely reflecting the consensus view of the day.

Finally, one could respect Holmes more if he upheld these abhorrent laws despite his personal distaste for them. In many of these cases, however, he either approved of the laws in question or was indifferent to them. His enthusiasm for mandatory sterilization in Buck v. Bell is well-known. But he was also indifferent to or mildly supportive of even very extreme segregation laws, and various harsh restrictions on freedom of speech and press. More generally, Holmes was a kind of Social Darwinist of the political process who believed that majority rule was a force of nature that must almost always be deferred to.

It is understandable that early 20th century Progressives admired Holmes. In addition to supporting expanded government control of the economy, many of them also supported eugenics, restrictions on civil liberties, and government-mandated segregation (seen as a way of promoting social order and preventing the white race from being swamped by "inferior" groups). Even those inclined to be sympathetic to African-American rights or freedom of speech tended to subordinate these causes to what they considered to be the more important objectives of increasing government economic regulation and strengthening the power of labor unions. It is far more difficult to justify the admiration for Holmes that persists today among many modern liberals, and some conservatives.

UPDATE: Although I don't have the space and time to document it in detail, I think that Holmes' reputation for cogent legal reasoning is also overblown. Setting aside the often flawed conclusions of his opinions, he also routinely failed to address important arguments on the other side. Many of his most famous opinions, including the much-praised Lochner dissent (which simply ignored the evidence suggesting that the Fourteenth Amendment was intended to protect economic liberties, and gave short shrift to relevant precedents going against him) suffer from this weakness. Holmes' opinions often seem better-reasoned than they really are because his great rhetorical skill masked their substantive weaknesses.

UPDATE #2: The original version of this post incorrectly stated that Holmes dissented in the important civil rights case of Buchanan v. Warley (a result of faulty memory on my part). I have now corrected the mistake.

Related Posts (on one page):

  1. Holmes's Overratedness:
  2. Why Oliver Wendell Holmes is Grossly Overrated:
  3. Mencken on Holmes:
corneille1640 (mail) (www):

One could also defend Holmes on the ground that he was merely a product of his times. On many of these issues, however, he was actually in dissent, which suggests that he wasn't merely reflecting the consensus view of the day.

It's true that his dissents suggest, as you say, there was not necessarily a consensus on those issues. But the mere fact that he, as a justice, dissented does not mean he was not a product of his times.

Having said that, I have no real interest or desire to defend the man.
8.20.2009 10:59am
OrinKerr:
Ilya,

I'm curious: Who do you think was the best Justice on the Court at the time Holmes was on the Court -- especially during his early years on the Court? Perhaps you could name 2 or 3 Justices who were contemporaries of Holmes who you think are superior?
8.20.2009 11:01am
martinned (mail) (www):
Wouldn't it be better to attempt to distinguish between justices one agrees with and justices one thinks are good? Even though I disagree with just about every opinion Scalia has ever written, I still think he's a good justice.
8.20.2009 11:02am
DavidBernstein (mail):
Orin, you didn't ask me, but I'd say "almost all of them."
8.20.2009 11:05am
DavidBernstein (mail):
And a slight correction: Holmes didn't dissent in Buchanan, he joined the unanimous opinion. But he did draft a dissent in the case, which more likely reflected his true feelings, and probably wasn't delivered because he couldn't attract any more votes.
8.20.2009 11:07am
Bemused Observer (mail):
I'm curious - Somin and Bernstein genuinely seem to believe that it's nigh impossible to have a nuanced understanding/appreciation of jurists and other historical figures - it's all or nothing. In other words, it's simply not possible to appreciate some of Holmes's rulings and writings (The Common Law), while abhorring others. This absolutist view is "law office history" run amok, and would be laughed at within any reputable history department.
8.20.2009 11:14am
name:
In all my years as a modern liberal, I have somehow missed out on the hot bed of admiration for Justice Holmes. I guess I'm not hanging out in the right places.
8.20.2009 11:14am
Passing By:
I thought Oliver Wendell Holmes was a poet.
Yes, dear departed, cherished days,
Could Memory's hand restore
Your morning light, your evening rays,
From Time's gray urn once more,
Then might this restless heart be still,
This straining eye might close,
And Hope her fainting pinions fold,
While the fair phantoms rose.

But, like a child in ocean's arms,
We strive against the stream,
Each moment farther from the shore
Where life's young fountains gleam;
Each moment fainter wave the fields,
And wider rolls the sea;
The mist grows dark, -- the sun goes down, --
Day breaks, -- and where are we?

A bit "Hallmark" for the modern ear?
8.20.2009 11:16am
Gerard Magliocca (mail):
Ilya,

You're 100% correct. I blame Holmes' inflated on reputation on Frankfurter, which just adds to the list of unfortunate things he did.
8.20.2009 11:16am
DavidBernstein (mail):
In other words, it's simply not possible to appreciate some of Holmes's rulings and writings (The Common Law), while abhorring others. This absolutist view is "law office history" run amok, and would be laughed at within any reputable history department.
Both posts were specifically about Holmes's constitutional jurisprudence on the Supreme Court, which has indeed been the subject of liberal adulation (less so lately, much more so a few decades back), not about his pre-Court writings on the Common Law or other legal topics.
8.20.2009 11:19am
Steve:
If only there weren't a legal movement going around talking about how awesome it is when judges defer to legislative choices and how activist it is when they don't, maybe it would be easier for people to see that Holmes wasn't so great.

Personally, I'm from the same school of thought as Profs. Bernstein and Somin - the courts should be aggressive in striking down legislative enactments, but only when they violate the constitutional guarantees I consider most important. We disagree on which guarantees to prize, of course, but that's a detail.
8.20.2009 11:31am
DangerMouse:
I've never understood the admiration for Holmes. He would've been better suited as a Senator, so his demented bloviating would've had less damage to society. As it is, I wonder if he actually even read the Constitution at all.

It is understandable that early 20th century Progressives admired Holmes. In addition to supporting expanded government control of the economy, many of them also supported eugenics, restrictions on civil liberties, and government-mandated segregation (seen as a way of promoting social order and preventing the white race from being swamped by "inferior" groups).

Very true. Libs back then are like libs right now. The most obvious parallel is their support of eugenics, from favoring assisted suicide and early death for grandma, to their support of abortion of Downs-syndrome babies.
8.20.2009 11:33am
NowMDJD (mail):

I thought Oliver Wendell Holmes was a poet.

Yes, dear departed, cherished days,
Could Memory's hand restore
Your morning light, your evening rays,

Wasn't this by the father of the judge, who was a physician, essayist, and poet with the same name?
8.20.2009 11:34am
SeaDrive:
Dangermouse: For the record, mendacity is not considered a desirable character trait.
8.20.2009 11:38am
Joseph Slater (mail):
As an historian who consorts with liberals, I too am puzzled by the claim that Holmes is uncritically lionized by "progressives." Perhaps, as DB says, there was more of that "decades back." But that's not unusual. I'm guessing it would be easy to find people whom conservatives or libertarians were praising "decades back," that modern conservatives and libertarians are now ambivalent about.

And while I suspect it's true that earlier progressives over-praised Holmes because of his legal opinions and dissents on worker-protective laws, I also suspect it's true that modern-day conservative libertarians see him as a special target for the same reason.
8.20.2009 11:40am
Ilya Somin:
Who do you think was the best Justice on the Court at the time Holmes was on the Court -- especially during his early years on the Court? Perhaps you could name 2 or 3 Justices who were contemporaries of Holmes who you think are superior?

The first question is a tough one. Harlan is a plausible candidate. However, I don't know enough about the records of several of them to reach any firm judgement. The second is easy. Just about all of them were better than Holmes in my view.
8.20.2009 11:42am
Florida Masochist (mail) (www):
OrinKerr writes-

<blockquote>I'm curious: Who do you think was the best Justice on the Court at the time Holmes was on the Court — especially during his early years on the Court?
</blockquote>How about John Marshall Harlan? He had a mixed record but he was also the lone dissenter in Plessy v Ferguson.
8.20.2009 11:48am
yankev (mail):

I thought Oliver Wendell Holmes was a poet.

Since this is a blog about law, I assume this was written tongue in cheek, and that you know that Justice Oliver Wendell Holmes, Jr. was the son of the autocrat of the breakfast table, poet Oliver Wendell Holmes, Sr.
8.20.2009 11:49am
Malvolio:
Is there a strong argument that Holmes wasn't outright evil?

I mean, we usually think of apologists and promoters of tyranny as evil, at least in a petty sense. Holmes is only unusual in promoting the tyranny of the majority, rather than of some individual tyrant, but I don't see why that should necessarily give him a pass.

Throw in his fondness for eugenics and debtors' prisons and such, he starts to seem like Oswald Mosley in a black robe.
8.20.2009 11:52am
Mack (mail):
As our law school dean put it back in the...well, long enough ago, commenting on a Holmes opinion in a contracts case: "That was when he was only wrong, before he became senile."
8.20.2009 11:52am
Per Son:
As a liberal who consorts with many liberals, I too had no idea that we loved Holmes so much (at least for many decades). My usual readings praise him for his decisions upholding worker protective legislation, but ripped him apart for racist opinions and ones like Buck v. Bell.

On a side note, the truth behind Buck v. Bell is interesting. Journalists caught up with her years later. She was not retarded, and the forced sterilization was more about who got her pregnant - the boss who raped her, she was a maid and he was a wealthy powerful guy.

Dangermouse,

You are correct. Liberals have one agenda - to kill grandma, by using bullets made out of forcibly aborted fetuses. Once grandma is dead, we use the guns to round up Townhall protesters and send them to FEMA camps.

Oh yeah, the guns were all taken by the secret service after the great gun grab that is coming your way. mwa haha
8.20.2009 11:55am
peterepeat (mail):
I submit that Holmes is popular because he was among the earliest and most prominent justices to embrace the notion that the 14th amendment incorporated at least some of the bill of rights against the states. As this doctrine has greatly expanded the power of federal judges and delighted certain academics, OWH is embraced. He is also popular because of well-phrased and dismissive comments regarding the idea that the due process clause of the fourteenth amendment bestowed something called liberty of contract. Most important of all, despite his deference to legislatures, he embraced the pragmatism view that has liberated judges as well as legislative bodies from the need to pay attention to constitutional limitations on their powers. Finally, the sheer longevity of the man makes him an appealing figure--imagine a person sitting on the high court today who had fought in a war seventy years earlier. Stephens is now sixty years post WW II service.
8.20.2009 11:57am
jhn:
I don't think there is a difference between good legal reasoning and good rhetoric.
8.20.2009 11:58am
louisianalawyer:
Has any justice had Holmes's literary flair or imaginative command of the language? Name me three that are on a par with him in that respect. He was also ahead of his time in recognizing that legal realism was the future of law, and the "black letter man" was on his way out.

Even if you disagree with many of his rulings, you have to recognize the power of his intellect and judicial charisma, which led to a reputation that towered for many decades. He is important because of his influence and his powers of expression, not because he was always "right."
8.20.2009 12:01pm
peterepeat (mail):
one more thing:

in a way, despite his reputation for pragmatism, holmes respect for legislatures was entirely appropriate. if taken in their original sense, even the limits of the 14th amendment and the bill of rights impose very few limitations on the states. Holmes realized that the vast majority of laws do not conflict with these provisions and acted accordingly. the routine expectation of lawyers that they can submit every last law to the scrutiny of law profs--so that said measures can be weighed against such vague standards as reasonableness--may make cases like buck v. bell appear atrocious, but the fact remains that even the state action in that case does not violate any provisions of the const in their original sense.

holmes stood--by act if not philosophy--for the proposition that served this country well for 150 years: if you dont like what a govt is doing, change the law or the const to prohibit it--dont go litigate a half cocked theory dreamed up in some law prof's office between afternoon naps.
8.20.2009 12:03pm
bornyesterday (mail) (www):
I don't think there is a difference between good legal reasoning and good rhetoric.

nonsense. just because you can reason fairly well doesn't mean you can talk your way out of a paper bag, let alone present an involved argument in a coherent and convincing way. also, vice versa
8.20.2009 12:06pm
Jon Lubin (mail):
Before Holmes, there was no intonation in U.S. Reports that the First Amendment prohibited restrictions on speech. Any takedown of the Great Dissenter as "overrated" ought to address his contribution to the development of free speech in this country as we know it today.
8.20.2009 12:06pm
louisianalawyer:
An interesting point by peterepeat- there is a tension in constitutional law between democracy, and the undemocratic power of the judiciary. The legal academy tends to array in favor of government's power to curb democracy.
8.20.2009 12:09pm
OrinKerr:
David B,

I assume your true love is for Justice McReynolds? ;-)
8.20.2009 12:13pm
ShelbyC:
Finally! Three generations later, folks are starting to realize he was overrated :-).
8.20.2009 12:17pm
rick.felt:
I'm definitely not a Holmes fan, but he deserves kudos for pointing out that substantive due process is a bunch of garbage.
8.20.2009 12:21pm
Kelvin:
Such an engrossing idea: political attacks on long dead men.
8.20.2009 12:31pm
Rock Chocklett:
Regardless of whether he is roundly praised by modern or old-school progressives, is there any question that Holmes is one of the most-quoted and most-cited Justices in Supreme Court history? Think about how many opinions and law review articles cite Holmes by name for its authoritative value. That seems to be his more important legacy, rather than whether his jurisprudence or policy views remain popular generally. And this legacy is undeserved (if not destructive) if Ilya and David are correct.
8.20.2009 12:33pm
FWB (mail):
Doctrine of stream of commerce says it all. Crystal Balls!

Tiocfaidh ar la!
8.20.2009 12:44pm
JK:
I'd just like to add to the others saying that based on my experience the amount of adoration liberals have for Holmes is being greatly exaggerated. The guy had a very interesting life story and often went against the grain in a time when that was sorely needed, but whenever I've heard liberal legal academics talk about Holmes there's always a lot of caveats like the ones you've mentioned, and rarely unqualified praise. And I was a "section 3er" at Georgetown, so I know something about liberal legal academics!
8.20.2009 12:45pm
Michael F. Martin (mail) (www):
He came out with some ugly decisions like *Buck v. Bell*. But I do not think he can be measured by his worst decisions. His writing shines through in clarity and precision even after 100 years. *The Path of the Law* is a foundational document. The profession would have moved in different directions had Justice Holmes not done his work. To paraphrase Steve Jobs, Holmes "put a dent in the universe." Whether you agreed or disagreed with Holmes's decisions, his writing and arguments demanded response. This post demonstrates that fact.
8.20.2009 1:02pm
Michael F. Martin (mail) (www):
In response to your update, I would say that in many cases, the framing of a problem is at least as important to the solution as the reasoning and evidence used to solve the problem. It's true that Holmes's rhetoric did much of his work. But that's true because he often (but not always) had a better fundamental understanding of issues than did his colleagues and contemporaries.
8.20.2009 1:07pm
Kara:
Martin's assessment is correct. In a hundred years, people will still be debating Holmes' merits -- or riding him for thier own political hobby horses -- after the present combatants are long forgotten.
8.20.2009 1:43pm
Gordo:
I see that the hated Lochner decision has reared its head in Professor Somin's attack. Clearly, Holmes dissent in this case is considered quite odious by the Lochner revisionists.

But, even if we accept that Holmes' dissent is based upon almost unlimited deference to the legislature, how does that explain Justice Harlan's dissent?

Harlan did not worship at the altar of the legislature, yet he (and two other justices, who joined his dissent rather than Holmes') recognized Lochner as a bad decision that nakedly substituted the court's legislative judgment for that of the legislature.
8.20.2009 2:54pm
CJColucci:
It seems that every few decades someone starts making a bunch of noise about Holmes, which usually amounts to pointing out things that should be obvious to anyone who reads his opinions -- and actually has been for decades -- asserting that they are inconsistent with a reputation he hasn't had among tolerably well-informed people for decades, and harumphing about whatever opinions the harumpher doesn't like, though the opinions the harumphers don't like and the reasons for their dislike vary in some vague relationship to trends in women's hemlines.
Why again? Why now?
8.20.2009 3:31pm
Christopher Cooke (mail):
Holmes was a genius with language, and penned a few dissents that stood for First Amendment rights of free expression. Yes, he joined some bad decisions (the Buck case) but so have many justices whose work was otherwise admirable (Jackson in Korematsu, e.g.; the majority in Bush v Gore, which is as unprincipled a decision as any in recent memory).

The other justices whose writing style I have admired are Scalia and Rehnquist (for contemporary or relatively contemporary examples) and, earlier, Jackson, Frankfurter, Marshall, and Cardozo.
8.20.2009 3:35pm
NowMDJD (mail):

The first question is a tough one. Harlan is a plausible candidate. However, I don't know enough about the records of several of them to reach any firm judgement. The second is easy. Just about all of them were better than Holmes in my view.

When in law school, I always loved to read a Horace Gray decision. He didn't seem to write many, but his scholarship and logic were a pleasure.
8.20.2009 3:48pm
Steve:
Yes, he joined some bad decisions (the Buck case) but so have many justices whose work was otherwise admirable (Jackson in Korematsu, e.g.; the majority in Bush v Gore, which is as unprincipled a decision as any in recent memory).

Jackson wrote a classic dissent in Korematsu. "If any fundamental assumption underlies our system, it is that guilt is personal and not inheritable...."
8.20.2009 4:06pm
Christopher Cooke (mail):
Steve: My apologies, I was thinking of Frankfurter's cooncurring opinion in Korematsu
8.21.2009 1:28am
Ilya Somin who?:
ILYA SOMIN writes: "In my view, Oliver Wendell Holmes is one of the most overrated justices ever to sit on the Supreme Court[.]" Thank God it's just your view; whoever you are.

In my view, Ilya Somin made that piece for self levitation. And yes, in my view, she is dumb.
8.21.2009 6:50am
David M. Nieporent (www):
In my view, Ilya Somin made that piece for self levitation. And yes, in my view, she is dumb.
And rather mannish.
8.21.2009 3:18pm

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