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Holmes's Overratedness:

There is no doubt that Justice Holmes was a powerful rhetorician: "The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics"; "It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account"; "Three generations of imbeciles are enough"; and so forth.

But along with his penchant for the flip but memorable aphorism, Justice Holmes's opinions reflect what one historian calls his "disdain for facts" and his lack of interest in legal reasoning. Consider Buck v. Bell, the eugenics case.

Despite his reputation as a fierce skeptic, Holmes credulously accepted the junk science of early twentieth-century eugenics without question. Moreover, he evinced no concern for the actual or potential abuse of the sterilization power. Holmes failed to meaningfully inquire as to whether the procedural protections granted Carrie Buck amounted to more than a sham, and whether the evidence that she was both feebleminded and descended from other mental incompetents was legitimate (they were a sham, and it wasn't legitimate).

Meanwhile, Holmes articulated an idea severely at odds with the American constitutional and natural rights traditions---that because the state may draft individuals to defend the country during war, it may demand any lesser sacrifice from its citizens, including forgoing their ability to bear children.

Finally, he drew an analogy between compulsory vaccination, previously upheld by the Supreme Court, and compulsory sterilization. He wrote, "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This analogy utterly fails. In the smallpox case, failure to comply with the vaccination law at issue led to a fine, not to mandatory vaccination. And while mandatory vaccination and mandatory sterilization involve invasions of bodily integrity, the results are quite different--no smallpox in the one case and no children in the other. In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party.

Buck is just one example of what I consider Holmes's failings as a judge, putting aside what I consider the grotesque immorality of many of his beliefs.

von Neumann (mail):
I expect to find more wisdom in the works of Larry Holmes.
8.20.2009 2:39pm
Dirk D:
"In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party."

That is, except when it killed or maimed them.
8.20.2009 2:45pm
troll_dc2 (mail):
Could we have had the First Amendment as we know it without him?
8.20.2009 2:46pm
A Law Dawg:
Debate: as between Justice Holmes and John Holmes, who had the more seminal influence on the First Amendment?
8.20.2009 2:49pm
CDU (mail) (www):
In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party.


True, though in a society where vaccination is close to universal, it would actually be more beneficial not to be vaccinated. That way you avoid the (smmall) risks of vaccination, but because everyone else is vaccinated, your risk of getting the disease is also quite low. This kind of free rider problem is why vaccination is sometimes made mandatory in the first place.
8.20.2009 2:52pm
Dave N (mail):
A Law Dawg,

I love bad puns. Thanks.
8.20.2009 2:53pm
Henry679 (mail):
Was does Bernstein allow comments here but not in his recent post on the importance of discussions of Antisemitism? Apparently on that subject what is important is only what he has to say, I guess. That is a funny kind of "discussion".
8.20.2009 2:54pm
DavidBernstein (mail):
Henry, I've decided to open comments when I feel like opening comments. If you don't like it, you're free to take your readership elsewhere, but don't pollute the comments section with complaints.
8.20.2009 2:55pm
Steve:
Wow, are you sure you're not biting off more than you can chew by attempting to take down such a highly-regarded opinion?
8.20.2009 2:55pm
A Law Dawg:
Henry,

The word you are looking for is "conversation."
8.20.2009 2:56pm
Gordo:
I see that the hated Lochner decision has reared its head in Professor Bernstein's quotation of Justice Holmes' gibe at Herbert Spencer's Social Statics, used in Holmes' dissent.

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 2:57pm
DavidBernstein (mail):
Harlan's opinion is MUCH better than Holmes's. The Progressives, however, hated Harlan because he wrote Adair v. United States, a liberty of contract opinion which was more reviled in its time than was Lochner, and certainly had a much greater practical impact on the world than Lochner did. So Pound et al. ignored Harlan's opinion, and instead sanctified Holmes's.
8.20.2009 3:04pm
14th Amendment:
I've been thinking about the "if we have the draft then anything goes" argument recently and had no idea Holmes espoused a position. Professor Bernstein, have you written on this issue? Or can you recommend a good source for more information on how American constitutional and natural rights traditions would be at odds with Holmes's view?
8.20.2009 3:05pm
ignoramus:
Dumb question: what is it, exactly, that gives the federal gov't the power to draft citizens? No, seriously.
8.20.2009 3:10pm
Kelvin:
Justice Holmes rocks
8.20.2009 3:18pm
einhverfr (mail) (www):
Ignormaus:

Dumb question: what is it, exactly, that gives the federal gov't the power to draft citizens? No, seriously.


The power to call forth the militia in Article 1?

To DB as an aside:
On your comments policy, you might want to consider the purpose of your post as well. Posts which seem like defence lawyer sort of rhetoric might do better without the comments and posts with broader application (like why discussions of antisemitism matter) might do better to have coments enabled. Just food for thought.
8.20.2009 3:34pm
Dan Simon (mail) (www):
He wrote, "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This analogy utterly fails.

David, I understand why this analogy utterly fails as an appeal to the good sense and decency of a modern American--and hence why a completely partisan, politicized, results-oriented scholar like you would reject it. But I don't understand why it fails in the context of pure, abstract legal reasoning, where the analogy seems quite convincing. Could you elaborate on your objection to it?
8.20.2009 3:41pm
CJColucci:
As far as I know, no one defends Buck v. Bell today. Well, actually, a few rather unsavory folk do, but they're not the sort of folks anyone on this blog likes to snark about, and they likely have very little use for anything else Holmes did.
So what has brought all this on? My grand-niece used to be terrified by my goatee. Did someone with a big white mustache startle you?
8.20.2009 3:44pm
DavidBernstein (mail):
Dan, like I said, (a) the compulsory vaccination case was really about a fine for not getting vaccinated, not truly compulsory vaccination; and (b) vaccination actually benefits the vaccinee, and doesn't do anything extreme to him like stop him from having children, at worst it creates a very small risk of illness, dwarfed by the protection you get from the vaccine.
8.20.2009 3:48pm
DavidBernstein (mail):
14th, my forthcoming book on Lochner devote a full chapter to the development of the relevant American constitutional tradition.
8.20.2009 3:49pm
MCM (mail):
And while mandatory vaccination and mandatory sterilization involve invasions of bodily integrity, the results are quite different--no smallpox in the one case and no children in the other. In other words, mandatory vaccination, unlike mandatory sterilization, actually benefited the coerced party.


I don't think there's as much of a difference as you claim there if you're willing to allow "benefit" as a countervailing factor (which I am not).

Children are expensive. In NC at least (whose sterilization program with which I am most familiar), most sterilized people were too poor to care for their children, which is part of why they were sterilized. The lack of additional children was a benefit to these people, for exactly the same reason people pay doctors to willingly sterilize them today.

Both smallpox vaccinations and sterilization prevent future health risks; childbearing is a dangerous process.

The real argument is that government coercion is bad. I don't think you get around this by weighing the benefits. If you're willing to do that, then you're putting the ball in Holmes' court.
8.20.2009 3:49pm
OrinKerr:
David,

Re Buck v. Bell, can you give us a sense of why it was 8-1? We all tend to think Holmes was out of step when he wrote that opinion, so it's interesting to wonder why all but one of Holmes's colleagues agreed with him.
8.20.2009 4:17pm
Kelvin:
The whole court agreed with Holmes (except for Butler, who refused to even pen a dissent). So, while they were wrong, it's not possible to argue that this was not mainstream legal reasoning, in its day.

Not only the other seven justices agreed, but so did the Supreme Court of Virginia, the Virginia Court of Appeals, the District Court, the State Hospital Board, and the two doctors.
8.20.2009 4:20pm
DavidBernstein (mail):
Orin, eugenics was very popular. I'm don't think it's fair to single out Holmes for approving of eugenics, or at least for thinking sterilization was constitutionally permissible. I do think it's fair to criticize his legal reasoning in the opinion, the blase attitude he had toward the facts of the case, his credulity about the potential abuses of the statute, and just how much he relished having his inferiors sterlized. He wrote to Lasky that he actually had to tone down the opinion after objections from his colleagues, so you can imagine how heartless the original version must have been, since the final version is not exactly a model of compassion.
8.20.2009 4:26pm
DavidBernstein (mail):
(Note that concurrences were unusual in those days, so the fact it was 8-1 doesn't mean Holmes's colleagues endorsed all the reasoning, tone, etc).
8.20.2009 4:27pm
Michael F. Martin (mail) (www):
Holmes would have made a very poor trial court judge. But he wasn't a trial court judge. If attention to factual detail were a virtue for appellate court judges, then I think we'd here fewer complaints of its violation. The work for appellate courts, especially the Supreme Court, is to articulate what makes particular rules warranted, not what facts warrant given particular rules.
8.20.2009 4:28pm
tvk:
As much as Buck v. Bell was a crime against humanity, for once I would like to see a critique of Holmes that doesn't rely on it. Even the fans of Holmes find it indefensible. But the excessive focus on Buck makes it seem like this is Holmes' one mistake.
8.20.2009 4:36pm
cynical jerk:

the final version is not exactly a model of compassion

I thought compassion was disfavored as a supreme court justice attribute?

Also, this might be somewhere in the thread already, what is the case that overruled Holmes? My cynical side says sterilization could be a good thing in certain very limited situations. Is there more than compassion to justify banning sterilization?
8.20.2009 4:39pm
14th Amendment:
Okay Professor, thanks, I'm looking forward to your book. In the meantime, is there an article off the top of your head that discusses the "if draft, then everything" argument? Or how the draft fits into the American constitutional tradition?

And to "ignoramus": the draft was widely criticized as unconstitutional when it was first imposed. See JAMES FORD RHODES, HISTORY OF THE CIVIL WAR, 1861--1865, at 288 (1917). I think that's on google books.
8.20.2009 4:50pm
Kelvin:
I don't think he was ever overruled. Skinner, outlawed punitive sterilization for crime (mainly because white coller crimes were not included) but the last compulsary sterilization was in 1981! Yikes.
8.20.2009 4:51pm
14th Amendment:
Not that I harbor any views about the constitutionality of the draft! I actually haven't considered that question. I just think the institution of the draft is a neat historical moment.
8.20.2009 4:53pm
LTR:
Is Posner a modern-day Holmes in a sense that he tries to make his own sometimes bizarre worldview law of the land but gets a pass because he does it in a really cool way?
8.20.2009 5:09pm
DavidBernstein (mail):
14th, I don't know of any works on the "if the gov't can draft you" theme, but I've been meaning to blog for a while about John W. Burgess's argument that the draft is unconstitutional. Burgess was a well-known conservative legal scholars in the early 20th century. Stay tuned.
8.20.2009 5:11pm
SamW:

He wrote to Lasky that he actually had to tone down the opinion after objections from his colleagues



concurrences were unusual in those days, so the fact it was 8-1 doesn't mean Holmes's colleagues endorsed all the reasoning, tone, etc


Those two contentions are contradictory: they signed on to opinions they agreed with or made the author change them.
8.20.2009 5:52pm
Hieronymous:
TVK, you are quite right. The growing contemporary movement to discredit Justice Holmes relies to an excessive degree on Buck v. Bell, which is an indefensible opinion when viewed through modern eyes. However, a more compelling critique of Holmes would address opinions beyond the low-hanging fruit of his most infamous decision.

Yes, Professor Bernstein, Justice Holmes could be imperious and callous in issuing his judgments, selectively using facts that fit his realist conception of the law. With the passage of time, this has left us with powerful, concise opinions. What is the longest Homes opinion ever written anyway? Of course, if judges today were to draft opinions of comparable brevity and clarity, they would very likely perform a grave disservice to the parties involved. Holmes's judicial writings were invaluable to the development of the law, and incredibly flippant as regarded the lives of persons affected. Yet, today only the former is of any significance ... the latter reduced to moonmist. Holmes was a man of his times. We owe him our respect, but should not attempt to imitate him.

Interestingly enough, Cardozo often did the same thing, as Judge Posner points out in his slim volume (as opposed to Kaufman's massive tome) of Benjamin Nathan's career. The heralded Palsgraf decision, Posner points out, omitted some highly relevant facts. Posner also reveals that while he idolizes Holmes, he is far more ambivalent toward Cardozo.

Personally, I feel Holmes's greatest rhetorical triumph was extrajudicial. His 1884 Memorial Day address still moves me to tears:

http://people.virginia.edu/~mmd5f/memorial.htm
8.20.2009 6:53pm
DavidBernstein (mail):
Those two contentions are contradictory: they signed on to opinions they agreed with or made the author change them.
No, there's a difference between an opinion being barely acceptable, and agreeing with every word of it. All we know for sure is that Holmes modified the opinion to make it at least barely acceptable.
8.20.2009 7:05pm
SamW:
What we know is that they Joined his opinion.

As you say, they found it acceptable.
8.20.2009 7:17pm
ShelbyC:

Ignormaus:


Dumb question: what is it, exactly, that gives the federal gov't the power to draft citizens? No, seriously.



The power to call forth the militia in Article 1?


I'm not sure what gives it the power to draft folks and send them to foreign countries though.
8.20.2009 7:19pm
G9220 (mail):
"the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."

Which principle is, IMO, protection of your neighbor, from the effects of non-vaccination or non-sterilization (the 4th generation...)

what is it, exactly, that gives the federal gov't the power to draft citizens?


To raise and support armies, Art 1, Section 8
8.20.2009 7:48pm
BABH:
Learned Hand, on being dropped off at work by Justice Holmes:
"Do justice, Justice!"
Holmes' reply:
"That's not my job."
8.20.2009 8:17pm
Andrew Hyman (mail) (www):
Holmes was a great justice despite being a powerful rhetorician, and not because of it. Being a power ful rhetorician is generally something to be held against a justice, IMO, because it suggests the justice is relying on something other than a simple, plain-spoken reliance on the law.

As for the case of Buck v. Bell, there is now no question that a horrible injustice was done, mainly because the woman inquestion was misdiagnosed as an imbecile. The primary blame for that gross miscarriage of justice lies with the medical authorities and courts of the state, and not with the federal courts.

Frankly, I am sick and tired of Justice Homes being blasted for this decision. No one ever mentions that Justiuce Brandeis concurred.

So what if some of the language used by Holmes was arrogant and insensitive? If a Supreme Court Justice always reaches a correct holding, but always accompanied by outlandish and offensive dicta, I would prefer that Supreem Court Justice to any of the incumbent Justices we have today.
8.20.2009 8:19pm
DavidBernstein (mail):
My forthcoming book notes that not only did Brandeis concur, in 1928 he cited Buck v. Bell favorably as an example of the Supreme Court keeping up with the times. And among other prominent Progressive legal folks, the opinion met with Professor Fowler Harper's approval; he listed the case as an example of welcome "progressive trends" in law.
8.20.2009 8:31pm
ReaderY:
Buck v. Bell was a rational basis case. In a rational basis case, it's not the judge's business to decide side of the debate is right, only to determine whether a debate exists.

It's worth noting that Sir Ronald Fisher's scientific argument for the value of diversity for the well-being of a species (his First Law) didn't burst on the scene until a decade later. In the meanwhile, the eugenicists' viewpoint wasn't junk science, it was what was accepted at the time.

The idea that judges are capable of pointing out flaws in the arguments of people accepted as leading scientists based on reasoning that wouldn't become accepted until reflects a rather optimistic set of expections of what judges can do.
8.20.2009 9:03pm
ReaderY:
Indeed, Professor Bernstein, Buck v. Bell is an excellent example of the fact that everyone considers their ideas progressive. Half a century early, "progress" meant bringing Christianity, civilization, and light to the "endarkened" races.

So to, today's claims to represent "progress" may be tomorrow's barbarisms, and judges should not be quick to jump on bandwagons.
8.20.2009 9:09pm
Asher Steinberg (mail):
He wrote, "the principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes." This analogy utterly fails.

David, I understand why this analogy utterly fails as an appeal to the good sense and decency of a modern American--and hence why a completely partisan, politicized, results-oriented scholar like you would reject it. But I don't understand why it fails in the context of pure, abstract legal reasoning, where the analogy seems quite convincing. Could you elaborate on your objection to it?


I think a better answer than the one Bernstein gave you is that there's a pretty huge liberty interest implicated in compulsory sterilization and a pretty small one at stake in compulsory vaccination laws. On the one hand you've got "I'd like to be able to have children"; on the other you have "I'd rather not get shots." Of course, it's possible that the same principle could sustain both, but it's much easier to imagine a relatively narrow principle that sustains the one and not the other.
8.20.2009 11:58pm
Dan Simon (mail) (www):
(a) the compulsory vaccination case was really about a fine for not getting vaccinated, not truly compulsory vaccination;

Now you've got me curious...did the vaccination case really establish a precedent to the effect that imposing a fine for refusing a government demand doesn't make that demand "truly compulsory"?

If so, then I'll concede that you've spotted a serious flaw in Holmes' legal reasoning. Otherwise...

(b) vaccination actually benefits the vaccinee, and doesn't do anything extreme to him like stop him from having children, at worst it creates a very small risk of illness, dwarfed by the protection you get from the vaccine.

I understand that you, David Bernstein, believe that vaccination actually benefits the vaccinee, and that sterilization of a mentally disabled woman, far from benefiting her, constitutes "do[ing] something extreme to" her. I'll even concede that I, Dan Simon, agree with you on both points.

But do you deny that Justice Holmes, at least seven (and possibly eight) of his colleagues, the legislatures of his era, and quite possibly the majority of the voting public, all disagreed, and considered the sterilization to be a benefit to the woman in question, rather than a cruelty? And assuming that you don't deny this, what legal doctrine or process do you advocate that would have revealed to all of these parties the error, not in their legal reasoning, but in their moral and pragmatic judgment about the costs and benefits of sterilization to the mentally impaired?

That's the problem with your brand of ideological, result-oriented legal philosophy--it relies on judges "getting it right", not just about the law, but about all sorts of moral and practical issues that are far more hotly contested in the real world than in your own black-and-white mind. Holmes, ever the realist, had a solution to this problem: the elected branches of government get to make the laws, whether they "get it right" or not. To imagine, as you appear to, that simply handing over power to a panel of judges and telling them to "get it right" will result in them actually "getting it right" by your definition--let alone by anyone else's--is, well, pretty naive.
8.21.2009 12:49am
Skipp:
What about the quote from Rabbi Harry Mayer at a Mother's Day sermon at a temple in Kansas City in 1926 when he stated, "May we do nothing to permit our blood to be adulterated by the infusion of blood of a lower grade."
8.21.2009 9:20am

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