There are many reasons to cut back on watching the national news. One of the issues these last months is the recent nomination to the supreme court. This controversy follows a great read from earlier this year on a famous supreme court judge who proved a point: a president can nominate a judge to the supreme court with specific goals in mind, and that judge, once on the court may in fact not perform as expected. Once more, a new judge with dissenting opinions can be the source of inspiration for reform in later Courts. What follows are some reflections on Oliver Wendell Holmes and some of the interesting “tilts” such a nomination and career bring to our collective history.
But first, look at the culture wars of the depression as it relates to the supreme court. Franklin Roosevelt (FDR) famously tried to “pack the court.” Why? FDR’s social/financial programs were in conflict with much of the governing class in the United States. In a time when communism and fascism were viable political systems on the world stage, FDR’s mandate and first attempts at leadership as president went against the grain of the “American way.” The supreme court had conservative judges and they stood in the way of Federal legislation. Citing their age, he pushed through attempts to legally, “pack the court.” This caused conflict that echoes to this day— even those who agreed with him on the new laws and regulations found it difficult to buy his approach. It conflicted with the very notion of an unbiased court and it appeared to be a brazen power grab. FDR lost political capital over this attempt—-which in the end, failed. The effort however did influence the existing Supreme Court judges. New Federal legislation that would have predictably been doomed, on review by the Supreme Court suddenly were viable. The unrestructured conservative court suddenly reversed itself and judged social security and the national labor relations act viable and legal despite their groundbreaking and non-traditional approach. The joke at the time was that the “switch in time saved nine……”
Politics will always play a role in supreme court membership; how can it not? A fascinating case and point: FDR was tarred with the “socialist” label. He influenced a lot of “leftist” laws including as noted, the social security system and the electrification of the rural heartland. Eleanor was the unabashed liberal regarding social issues, such as race relations. Regarding politics and reform, FDR’s power base required votes from Southern Democrats in Congress. When a supreme court judge position opened up, he rewarded a senator from Alabama, Hugo Black. Justice Black was approved by the senate, (confirmed by a vote of 63 to 16). There were legitimate concerns about the suitability of this appointment: Senator Black was a lawyer, and he had not any serious time in as a judge—his career was in politics. Within months of his appointment, it became known that when younger, he had been a member of the Klu Klux Klan and had voiced anti-Catholic sentiments. The impact on senators who voted to approve him from states whose voting publics did not think the KKK a credible or worthy organization was not small. FDR lost more political capital.
The irony of this lies in the fact that justice Black, from Alabama, became one of the liberal icons of the Warren Court. I am amazed by this fact as I consider that the people of Alabama were certainly no more liberal in that day than they are now. They voted for Senator Black. What was different then? Possibly, ten years of a world-wide depression found even conservative Alabamans willing to think out of the box for solutions to the country’s problems. He was very clear when running for office—he was an unapologetic reformer. It is possible in the space of just a few generations to see a dramatic swing in the outlook of people from a particular culture or background.
Some background and thoughts follow about Justice Oliver Wendell Holmes as pulled from the featured biography: Stephen Budianski’s Oliver Wendall Holmes, a Life in War, law, and Ideas.
Holmes was long-lived: he personally knew John Quincy Adams (6th President of the United States) and Alger Hiss (a government official taken down during the Cold War). Near the end of his life, he met the newly elected President Roosevelt. An interesting quote follows that reflects the dramatic effect war had had on the thinking of Justice Holmes—when FDR asked for advice and a critique of New Deal Policies, Holmes, aged 90 replied, "The time I was in retreat, the army was in retreat in disaster and the thing to do was stop the retreat , blow your trumpet, have them give the order to charge, and that is exactly what you are doing. That is an admirable thing to do and the only thing you could have done.”
Holmes was famous for terse simple rulings without legal verbiage; that is what caught my attention and led to my reading this biography: Buck vs Bell. The issue was Eugenics, popular world-wide at the time, and whether the State has the right to sterilize people against their will.
“We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes."
Holmes concluded his argument by declaring that, "Three generations of imbeciles are enough.”
Holmes was an Establishment guy: With emerging political thinking in mind, he was as “establishment” as one could be for the first half of the twentieth century in the United States. He was from a well-to-do family in Boston, a traditional cultural bastion going back to the origins of the country. He was white. He went to Harvard. In his later life, he took advantage of the Supreme Court schedule to participate in social “seasons” in England. He was in the top 10% of the US population, income-wise. Holmes was well read; he kept track of his readings throughout his lifetime and is said to have read over 20,000 works. Given our current popular impressions, he had one other Establishment credential: he was a veteran of the Civil War. To one of his time, his were of “The Greatest Generation…….”
The Civil War affected this man in many interesting ways. He started out an abolitionist or at least in sympathy with them. He volunteered with many others from Harvard: some 578 volunteers from Harvard enlisted and most were in the 20th Massachusetts. The casualty rate over the course of the Civil War was 36% dead or wounded. 10/13 Harvard enlistee officers were killed or wounded. Only 4 regiments had higher casualty numbers in the whole United States Army. Harvard! Maybe they were America’s greatest generation……
Holmes was wounded three times in the course of the war (he was shot in the chest early in the war and later in the neck at Antietam). Friends died and it all affected him.
The biography cites his comments as they relate to the war experience as evidenced by thinking later in his career. For example:
“It is irresponsible to run the universe on paper—-the test of an ideal or rather of an idealist is the power to hold it and get one’s inner inspiration from it under difficulties. When one is comfortable and well off, it is easy to talk high talk—nothing in life comes without a price and it is good to know what the bill is going to be.”
Also: “The war was so cataclysmic, it was a reproach to the very idea that there was even such a thing as a common interest of society, much less one that would be embraced by all as self-evident good—Not only did it make him lose belief, but lose belief in having beliefs.”
This quote is from the author, and not from Holmes himself but it is fascinating in 2020 to consider a judge on the supreme court making an impression for generations to come with a foundation of, “lost belief in the common interest of society.”
The experience in the military with the technology unleashed, and the prevailing current of intellectual advancements in many fields found him comforted and guided by science and statistics. He was not a man of traditional Faith. This would help explain his position (embracing the majority opinion of the Supreme Court) in the position on Eugenics and the forced sterilization of “imbeciles.” Nazi Germany’s example would taint eugenics and overt racial prejudice for several generations in the United States making them unacceptable points of view when in Holmes’ time, they were commonplace if not mainstream.
The law is NOT objective; nor is it a secular Old Testament: He was an establishment archetype and yet, he thought about the world with some measures of objectivity. Examples:
“Every cause was at its heart a kind of despotism—an attempt to force your views on another.”
In writing The Common Law, a book on this legal tradition and still referred to in Law Schools, he notes, “Common Law is not a brooding presence in the sky”—he disagreed that judges, thru platonic-like deduction, discerned the meaning of the founder’s intent.
In his time, “German” intellectuals stressed a form of rationalism which in my mind mirrored that of the ancient Greeks. All things could make sense and be explained with rational thought. “ He never mistook his own views for eternal truth…he believed that certainty is illusion. This made him reluctant to insist that one rule rather than another has the sanction of the universe.”
He starts what became known as the “legal realism” movement—the law is not free of political influence or social reality—the idea that law was “discovered” and not “made” led to his use of “common sense” or pragmatism when considering a law; it was Holmes who asserted that your freedom of speech ends when you induce panic and injury by yelling, “fire” in a crowded theatre — It is important to discourage people acting recklessly—also, it is important to not make it impossible to run a business and assign blame every time someone is hurt—he relied on statistics and experience in the real world to balance this competition of differing ends.
Using his pithy language: “Pretty much all law consists of forbidden men from doing what they want to do and contracts are no different.” He was bothered by court decisions that masqueraded politics for objective legal analysis. He would have been a dissented with Anthony Scalia. In fact, he would have agreed that “Textualists” or “strict constructionists” are fetishists—reading into the Constitution their political views the shine of an absolute truth.
Holmes violated his “contract” with his social class and the prevailing economic doctrines of the day: he dissented with his conservative mainstream Supreme Court brethren.
For example, he sometimes sided with labor in disputes against business. “Why wouldn’t the law support their being on equal footing in a negotiation?” he would ask. He believed that judges by and large came from the upper “successful” classes and accordingly, had prejudice about their concepts of the social order. They masqueraded this prejudice with legal jargon and thinking. He dissented and many of his dissents would form the basis of new law and new expectations as the court’s prejudices (and political affiliation) shifted (See Warren Court!).
His personal views about the order of things included the lack of morality in his model of justice. Specifically, law is not about morality—he asks us when making laws—to test what an evil man can do with the law in question. Shockingly for the time and place he did believe that law does not deal with moral culpability—-the evolution of law left making a judgement of evil intent and morality an external community standard of behavior. “A man can have a bad heart so long as he lives within the rules……the rules supported by the law to people arguing apply equally to those who are righteous and those who are evil…”
The Nation changes over time; the courts and interpretations of the law have to shift with it.
Holmes is credited for the concept of the Living Constitution. His research and belief in the Common Law tied his thinking of the Constitution as law with the thought that the framers believed in a living Nation that would grow and change and as such was a framework, and not a, straight jacket.His early judgements found him appreciating that laws when made are often applied in very different circumstances which have little to do with the founding principles and that there is no getting away from this fact; only judges can interpret and guide policy until the legislature remakes the law to suit the current world.
Holmes did not really buy the constitution as a protection for individual rights but rather, a framework for denying excesses while the country evolved—the Constitution has less to do with what it says you can do vs what you cannot do…..His disagreements with conservatives on the court over labor law and freedom of expression reflected this thinking re allowing for fair application of law to allow the creation and evolution of ideas that come to make a nation grow: hence, the 8 hour work week and ability to express virtually any political belief verbally or in the press ——things that were not normal and often subject to jail time in 1920.
The conservative supreme court rarely intervened when appeals over state verdicts presented themselves. He dissented—the court denied an appeal to prevent a hanging in Georgia—the jury had been intimidated by a mob into giving a “guilty” verdict. Holmes: “lynching by a duly constituted jury is still lynching……”. His dissents would form the basis for a more liberal court to intervene in such cases.
The Constitution and his judgements invoking it remain sidelined by an over arching belief about our existence. He sometimes intervened and sometime did not as he considered the court’s use of “police powers” was not truly a part of the Constitution, but rather a reflection of judges use of legal language to enforce their personal bias. While not an overt racist in his use of language, he did believe that laws affecting minorities reflected the dominance of certain segments of society and that that was the natural order of things—-and it was vain for courts to try and overturn that. Given that and his sense of the amorality of law, he sided with mysogynists, eugenicists, and supported separate but equal judgements. He was no liberal despite his “going against the flow” of his upper class peers on labor relations and the ‘living constitution.’
Of interest, he was asked to consider a stay in the execution of Saco and Vanzetti, famous anarchists tried for murder: Holmes: ‘…A thousand-fold injustices occurred commonly in the South against the blacks with no comment by the ‘radical’ who called for the cause of Saco and Vanzetti….”
Teddy Roosevelt (TR) Nominated Holmes to the Supreme Court. Did he get what he wanted?
The big issues of the time from TR’s point of view was the validation of American Imperialism (acquiring new lands from the Spanish-American War), and “Trust-busting.” Holmes delivered on annexation, but was often in conflict on the points of law around the Sherman Anti-Trust Act. He famously supported freedom of speech and dissented against the sedition laws coming to the Supreme Court that were invoked during and after World War I. Holmes made the ruling we have all grown up with about illegal search and seizure: “fruit of the poisonous tree.” And of course, we end where I began, Buck vs Bell, his majority opinion supporting eugenics. TR would have been proud of that one!
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