Brief Review of “The Great Dissent” by Thomas Healy (UPDATED)

I’ve just finished reading “The Great Dissent: How Oliver Wendell Holmes Changed His Mind–and Changed the History of Free Speech in America” by law professor Thomas Healy. The book has received sterling views, and happens to be directly related to something I’m writing about now, so I was looking forward to reading it.

On the plus side, the book is a lively read, and provides a good amount of interesting information about Holmes in general, and how he came to be (rather suddenly, after having not been at all) a champion of judicial protection of freedom of speech.

But having known a fair amount about the subject matter previously, I was disappointed for several reasons. First, I’ve been curious for some time as to the extent that Brandeis’s views on freedom of speech influenced Holmes. After all, Holmes’s adoption of pro-free speech views correlated with Brandeis’s appointment to the Supreme Court, and I’ve seen occasional hints that Brandeis substantially influenced Holmes. But while Brandeis makes a few cameos in the book, his influence on Holmes’s First Amendment jurisprudence goes unexplored. I was also surprised to find no mention of the “House of Truth,” which Brad Snyder has shown was a significant influence on Holmes.

Second, I would have liked to have seen some discussion about why Holmes’s turnabout on freedom of speech wasn’t accompanied by a turnabout on other civil liberties issues, where Holmes remained largely opposed to judicial protection of individual rights (see, e.g., his dissent in Bartels v. Iowa and his notorious opinion in Buck v. Bell).

Third, while those issues went unexplored, Healy went into great detail about some aspects of Holmes’s personal life that while certainly interesting (and sometimes scandalous) didn’t seem to me to have anything to do with Holmes’s jurisprudence. As long-time readers know, I’m a big believer in authors staying on point, and keeping history books on the brief side rather than adding extraneous detail.

Finally, I was (perhaps inordinately) troubled by a line toward the end of the book, in which Healy writes that once Felix Frankfurter joined the Supreme Court, “his belief in judicial restraint prevailed over his progressive instincts.” Maybe Healy just meant “liberal” or “progressive” in the 2013 sense, but I worried that Healy was not fully cognizant of the extent to which the legal Progressivism to which Frankfurter had devoted his career prior to his appointment to the Supreme Court (and was the intellectual millieu in which Holmes was a great hero) was strongly committed to judicial restraint, such that Frankfurter, for example, opposed the Supreme Court’s unanimous decision in Pierce v. Society of Sisters in 1925. Frankfurter, in other words, would have allowed states to ban all private schools, a position that even Holmes rejected (but Frankfurter never abandoned, even when New Deal liberals took over the Court and banished the threat of conservative activism on behalf of federalism or economic rights).

So, if you want a relatively fun and engaging read about Holmes and his turn toward free speech, do read the book. But don’t think there isn’t a lot more to say on the subject.

UPDATE: On reflection, Healy’s depiction of Holmes’s personal life does relate to his First Amendment opinions, but in a circuitous manner that Healy doesn’t really draw out. Holmes’s love affair with a somewhat indifferent British matron, and especially the pathetic, simpering love letters he wrote her, shows him to have been a very lonely (albeit married) old man starved for affection. He ultimately received (non-physical) affection, and adulation as well, not from his lover but from his young Progressive acolytes like Harold Laski, Felix Frankfurter, and others. But that adulation depended on Holmes’s staying in their ideological good graces, and once his “circle” had decided that freedom of speech needed judicial protection, it’s not surprising that Holmes indulged them by protecting it. Which is not to say that Holmes didn’t really change his mind, but if he had been a happy man not inclined to pay attention to young sycophants, he may never have had the occasion to rethink his position (unless, of course, Brandeis’s influence has been understated).

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