pageok
pageok
pageok
Justice Holmes Rocks:
As this seems to be WDYTOJOWH week at the Volokh Conspiracy — "What Do You Think of Justice Oliver Wendell Holmes?" — I thought I would risk annoying Ilya and David B by saying that I'm a big fan of Holmes. He was a marvelous legal thinker for his day, a true intellectual, and a gifted writer.

  Granted, I don't agree with Holmes about everything. But then I've never agreed with anyone about everything, and I've never come close with those who had the misfortune of living a century ago. Plus, I'm not sure that the degree to which someone agrees with me is a reliable indicator of how great they are. Whether different people really should be fans of Holmes (liberals, conservatives, left-handed people, etc.) is a question I'll leave to others to debate. But looking at his work as a whole, I find a great deal to admire in it. One of the Great Justices, in my view.

  For readers interested in getting to know Holmes better, I particularly recommend The Essential Holmes, Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.. Excellent stuff.

  UPDATE: For a few quotes from The Essential Holmes that I posted at this blog way back in July 2003, see here.
Steve:
Furthermore, three generations of imbeciles really ARE enough.
8.20.2009 12:33pm
Guest14:
Everyone can agree that he had very prestigious facial hair.
8.20.2009 12:34pm
ShelbyC:
Steve:

Furthermore, three generations of imbeciles really ARE enough.


But who decides who the imbeciles are?
8.20.2009 12:50pm
LTR:
As always O.K. is the Conspirator in least hurry to be an iconoclast.
8.20.2009 12:53pm
Blargh:
Obama's death panels.
8.20.2009 12:54pm
Blargh:
that was a response to Shelby.
8.20.2009 12:54pm
OrinKerr:
As always O.K. is the Conspirator in least hurry to be an iconoclast.

Either that, or I am in a hurry to be an iconoclast to the iconoclasts. ;-)
8.20.2009 12:55pm
Reg Dunlop:
Wouldn't it be an imbecile panel?
8.20.2009 12:58pm
ShelbyC:

Wouldn't it be an imbecile panel?


Too ambiguous.
8.20.2009 1:02pm
einhverfr (mail) (www):
ShelbyC:

I would propose the rule that "if you have to ask, you are one." ;-)
8.20.2009 1:09pm
CrazyTrain (mail):
Thank you for saying this. I had no idea by the way that Holmes was supposedly some hero to judicial liberals -- I always thought that Warren, Brennan, Marshall, and Blackmun (sort of) were the big heros.

As someone who probably would be considered a liberal around here I must say that I always thought Holmes rocked, but not because he was a liberal, just because his opinions were always really, really well-written and interesting.

Anyways, in no particular order, here are the greatest federal judges (all Justices, with one exception) ever:

O.W. Holmes
John Marshall
Learned Hand
Robert Jackson
8.20.2009 1:10pm
CrazyTrain (mail):
Also, I was happy to hear that Ilya and David are such big fans of Justice McReynolds.
8.20.2009 1:10pm
CrazyTrain (mail):
And also put Cardozo in the list of awesome Judges, but his awesomeness was on the NY Court of Appeals -- his Supreme Court work was not particularly noteworthy. And I know I am stating very uncontroversial opinions here, but there is a reason that the Judges I am listing are well-regarded, because they were really, really good Judges.
8.20.2009 1:13pm
martinned (mail) (www):

I'm not sure that the degree to which someone agrees with me is a reliable indicator of how great they are.

Hear, hear!
8.20.2009 1:19pm
Smooth, Like a Rhapsody (mail):
On any list of the greatest Americans since the Civil War, OWH is near the top. He served with great honor as a soldier, was a first-rate scholar, a great judge, married to the same woman for 60 years, and was the very model of a man of both affairs and ideas.
8.20.2009 1:22pm
SuperSkeptic (mail):
I'm pro-Holmes, but I'm anti-Cardozo. He pulled Holmes-esque moves without a holmes-esque intellect or worldview.

And he didn't even graduate from a three-year ABA accredited law school...sheesh...

Holmes' legal realism and analysis of the common law was/is penetrating and insightful. I'm grateful for him, if not all of his opinions....
8.20.2009 1:29pm
bobh (mail):
I'm also pro-Holmes. I particularly liked his work in "The Hound of the Baskervilles."

Wait -- what? Oliver Wendell Holmes? That's very different.

Never mind.
8.20.2009 1:34pm
Kara:
Yes, Holmes apparently rocks, we are still talking about his legacy.
8.20.2009 1:46pm
Snaphappy:
Friendly, Wisdom, and Harlan come to mind.
8.20.2009 1:54pm
Tracy Johnson (www):
I picked up a copy of "The Common Law" by O.H. Holmes in an antique shop, 45th printing c.1923 in Boston by Little, Brown &Co. Copyright 1881, 1909, &1923. Is it of any useful value? In other words, should I save it for my boy who wants to go to law school after his last Navy hitch is up?
8.20.2009 1:57pm
apparently:
"Yes, Holmes apparently rocks, we are still talking about his legacy."

People still talk about Hitler too.
8.20.2009 2:10pm
OrinKerr:
CraazyTrain writes:
Anyways, in no particular order, here are the greatest federal judges (all Justices, with one exception) ever:

O.W. Holmes
John Marshall
Learned Hand
Robert Jackson
I'm totally with you on Jackson and Hand: They are probably my two favorites. And I would add Henry Friendly -- perhaps the model of a judge, at least for me. In terms of other Justices, Harlan II is one of the greats, although I think Jackson edges him out, even if mostly because he is a more memorable writer. I think John Marshall has to be on a greats list, although I find it hard to get a strong sense of these things when you go back so far in time.
8.20.2009 2:19pm
alkali (mail):
"Yes, Holmes apparently rocks, we are still talking about his legacy."

People still talk about Hitler too.


And yet Mike Godwin is all but forgotten.
8.20.2009 2:20pm
louisianalawyer:
I was astounded to learn that Jackson had never attended law school.
8.20.2009 2:23pm
Bama 1L:
What has Mike Godwin to do with law?
8.20.2009 2:26pm
AJK:

I was astounded to learn that Jackson had never attended law school.


Actually, he did. It would be correct to say that he did not have a formal legal education as we would think of it today.

I think Joseph McKenna is more surprising — he didn't go to law school until after he had been nominated to the Supreme Court.
8.20.2009 2:30pm
Greg Dodge:
Holmes is so quotable, and here is one of my favorites:


Man's mind, once stretched by a new idea, never regains its original dimensions.
8.20.2009 3:36pm
ShelbyC:
@einhverfr, wait, I think you just called me an imbecile. It's all good, though. My Dad's not.
8.20.2009 4:38pm
anon623520:
I find the attempts to marginalize Holmes rather silly. I've heard these arguments before and I'm sorry: Holmes created the metaphor of the marketplace of ideas (or at least the precursor of the metaphor). That alone makes him one of the most influential people in both the realm of freedom of expression and copyright law. I'd like to be able to present the world with an "overrated" idea like that . . .
8.20.2009 4:52pm
Malvolio:
I'm not sure that the degree to which someone agrees with me is a reliable indicator of how great they are.
Furthermore, three generations of imbeciles really ARE enough.
It might be enough in some purely abstract sense, but the instant case shows why encoding that rationality into law makes no sense.

There was no "three generations". Carrie Buck's mother was, well, a tramp and a fool, but Carrie wasn't and her daughter wasn't. She had been raped, impregnated against her will, committed to a psychiatric facility against her will and for no good reason -- and in Holmes's mind, those events justified her surgical mutilation. That would be embarrassing in Saudi Arabia. Here, I think it means we could, at a minimum, cross Holmes off the list of good Justices and eugenics off the list of good ideas.
8.20.2009 5:11pm
apparently:
"And yet Mike Godwin is all but forgotten."

No one is accusing Holmes of being Hitler, so your invocation of Godwin is mistaken. It does however show that being "talked about" does not entail that something "rocks."

Logic. I use it so you don't have to.
8.20.2009 5:14pm
Steve:
Well, you can have your own opinion, but that doesn't mean you get to dispute the Supreme Court's view of the facts. You probably think a tomato is a fruit, too.
8.20.2009 5:15pm
David M. Nieporent (www):
No one is accusing Holmes of being Hitler, so your invocation of Godwin is mistaken. It does however show that being "talked about" does not entail that something "rocks."
Godwin's law doesn't refer to accusations that someone is Hitler; just that Hitler will be raised in the discussion.
8.20.2009 5:21pm
SamW:
Cross him off with the rest of the Court, that agreed with him.

We should also cross Virginia off as a good State.
8.20.2009 5:27pm
CJColucci:
We should also cross Virginia off as a good State.

Mencken, who started all this, would agree. See his "The Sahara of the Bozart."
8.20.2009 5:32pm
Old Useless:
Oliver Wendell Holmes, Jr.

You've read his writing...

You've seen his photograph...

But have you ever heard a recording of his voice?

If you've got 86.3 seconds to spare you can hear it here:

http://www.hpol.org/record.php?id=152
8.20.2009 6:00pm
Leo Marvin (mail):
CrazyTrain:

I had no idea by the way that Holmes was supposedly some hero to judicial liberals -- I always thought that Warren, Brennan, Marshall, and Blackmun (sort of) were the big heros.

... Douglas
8.20.2009 7:54pm
SamW:
Yes, quite, CJ. The entire South should have been sterilized. ;)


It is, indeed, amazing to contemplate so vast a
vacuity. One thinks of the interstellar spaces, of the colossal reaches of the now mythical ether. Nearly the whole of Europe could be lost in that stupendous region of worn-out farms, shoddy cities and paralyzed cerebrums: one could throw in France, Germany and Italy, and still have room for the British Isles. And yet, for all its size and all its wealth and all the "progress" it babbles of, it is almost as sterile, artistically, intellectu-
ally, culturally, as the Sahara Desert. There are single acres in Europe that house more first-rate men than all the states south of the Potomac; there are probably single square miles in America. If the whole of the late Confederacy were to be engulfed by
a tidal wave tomorrow, the effect upon the civilized minority of men in the world would be but little greater than that of a flood on the Yang-tse-kiang. It would be impossible in all history to match so complete a drying-up of a civilization.
8.20.2009 8:51pm
MQuinn:

I had no idea by the way that Holmes was supposedly some hero to judicial liberals . . . .

As someone who probably would be considered a liberal around here I must say that I always thought Holmes rocked, but not because he was a liberal . . . .

I have often heard similar sentiments regarding Holmes being a liberal. I disagree with such sentiments.

Holmes deferred to the legislative majority, almost always. When such deference reached liberal results, then so be it. When it reached conservative results, then so be it. But there was no liberal (or conservative) bent to his jurisprudence -- only deference.
8.20.2009 11:34pm
apparently:
Then Godwin is overrated.

The same point could just as well be made with any controversial example: Taney is still being talked about, "Taney rocks." Dred Scott is still being talked about, "Dred Scott rocks." George Bush is still being talked about, "George Bush rocks."

The logical point is not met by invoking Godwin.
8.21.2009 2:49am
SamW:
Obviously, you mean the pedantic and trivial point.

But go ahead, make it again
8.21.2009 10:16am
ShelbyC:

No one is accusing Holmes of being Hitler...


Not too far off though. Forced sterilization is a crime against humanity, and the folks at the top who allow such crimes to happen are primarily responsible.
8.21.2009 11:40am
loki13 (mail):
OK,

I haven't been commenting often, but I just wanted to write a quick thank you for returning. Not only for your posts, but also for your needed sanity and reasonableness in the comments threads of the other conspirators. That you elicited from both both DB and Ilya that they believed that (ahem) *all* of Holmes' contemporaries were better Justices (or, as Ilya put it, "Just about all of them were better than Holmes in my view.") made me laugh long and hard.

There is a big difference between saying the following:
1. Someone is overrated.
2. Someone is good, but I just dislike them for ideological reasons.
3. Someone is just a bad player.

For example, let me give the following baseball examples:
1. ARod is overrated. Has been his whole career. Just about all of the MLB players were better than him during the 00s.
2. Derek Jeter is okay, but I hate the Yankees. Therefore, almost every MLB player who was a contemporary of Jeter was a better player.
3. Albert Pujols is just awful.

Notice how the three statements differ. They are often fallacies made by "fans". The first fails because the fan, trying to overcompensate for the perceived "overratedness" of the person, discounts their actual value. The second fails because they are confusing their ideological preference (rooting for a team) with what makes someone a good ballplayer. The third fails because it's batshit crazy, and objectively untrue.

It's hard to say that Ilya and DB are making the third category of error- how to you objectively measure the quality of a justice- but if you could (cites by the court, law review cites, impact on modern jurisprudence (incorporation, 1st Am, deference, legal realism etc.)) Holmes would certainly not be in the bottom half, let alone *the worst* justice.

So I'd say they're blinded by 1&2. DB, in particular, enjoys tilting at the windmills he has created, particularly the one labeled "20s Progressivism" and "The New Deal". There is no received wisdom he does not want to demolish, even if he has to create the wisdom to demolish it. So we get the following logic:
a. Liberals today (who are really 20s progressives, as DB keeps reminding us) love and lionize OWH, making him the greatest justice ever.
b. Not only was he not the greatest justice, he was the worst justice of the time, because he believed in progressive things like eugenics, and did Buck v. Bell, which made him worse than the other 7 justices that signed on to the opinion.
c. Profit!

Anyway, thank you for restoring a little sanity. I certainly do not begrudge either Prof. Bernstein or Prof. Somin their normative views that they do not like OWH, but claiming that he was the worst justice of the time is not only thin gruel, but, well, batshit crazy.
8.21.2009 2:09pm
apparently:
"Obviously, you mean the pedantic and trivial point."

And yet the obviously trivial logical point was missed by those invoking Godwin's cliche. But go ahead, continue spurning logic out of spite.
8.21.2009 7:46pm

Post as: [Register] [Log In]

Account:
Password:
Remember info?

If you have a comment about spelling, typos, or format errors, please e-mail the poster directly rather than posting a comment.

Comment Policy: We reserve the right to edit or delete comments, and in extreme cases to ban commenters, at our discretion. Comments must be relevant and civil (and, especially, free of name-calling). We think of comment threads like dinner parties at our homes. If you make the party unpleasant for us or for others, we'd rather you went elsewhere. We're happy to see a wide range of viewpoints, but we want all of them to be expressed as politely as possible.

We realize that such a comment policy can never be evenly enforced, because we can't possibly monitor every comment equally well. Hundreds of comments are posted every day here, and we don't read them all. Those we read, we read with different degrees of attention, and in different moods. We try to be fair, but we make no promises.

And remember, it's a big Internet. If you think we were mistaken in removing your post (or, in extreme cases, in removing you) -- or if you prefer a more free-for-all approach -- there are surely plenty of ways you can still get your views out.