Holmes and Reputation:
A quick question for David, in light of his comment below -- David, why do you think that "Justice Holmes . . . has seen his reputation plummet"? That's certainly news to me.
Well, he rejected natural rights theory which seems prevalent among a certain group of academics, and he also developed O'Conner-esque constitutional tests that don't provide any clear guidance to legislators or lower courts. His views on race, poverty and mental illness were distasteful to say the least. My Con Law professor wasn't a fan, but I have no idea if he is representitive of Con Law academics as a whole.
4.4.2006 6:11pm
Did Holmes say "one generation of imbeciles is enough?"
4.4.2006 6:23pm
m-kel (mail):
That's from Buck v. Bell I believe, and the quote is "Three generations of imbeciles is enough."
4.4.2006 6:32pm
JLR (mail) (www):
Pditty, in Buck v. Bell Justice Holmes famously said "three generations of imbeciles are enough." (Buck v. Bell, 274 US 200 [1927]). In that case, Justice Holmes's wrote the opinion for the Court, and ruled that forced sterilization of mental patients did not violate the 14th Amendment.

Justice Holmes also dissented from the decision in Meyer v. Nebraska, 262 US 390 (1923) -- the Supreme Court held in Meyer (in the majority opinion written by Justice McReynolds) that Nebraska's law forbidding the teaching of certain foreign languages violated the 14th Amendment's due process clause. (The Nebraska law was, if I recall correctly, one of the anti-German laws passed during World War I -- the language that Meyer taught was German.) Meyer is a key precedent that supports Griswold v. Connecticut and Roe v. Wade.
4.4.2006 6:36pm
JLR (mail) (www):
Looks like Professor Bernstein has written much of the same material about Buck v. Bell and Meyer v. Nebraska in his above main blog post. Slow and steady doesn't win the race in the blogosphere.
4.4.2006 6:39pm
Stephen Carter (mail):
I would suspect that Holmes's reputation is more complicated. I cannot speak to whether liberals or conservatives should be first to disown him; that question is a bit rarefied for my taste. I will say a word about his jurisprudence.

Holmes was a brilliant writer and an innovative thinker, whose work on constitutional law as a Supreme Court justice, although often deeply flawed, and resoundingly criticized, has not been particularly important or of lasting influence. His Lowell Lectures on The Common Law, if no longer widely admired, are nevertheless a masterpiece of clarity, and an excellent foil when teaching first-year contracts. I find the lectures a useful example of the contract-as-insurance idea. It is worth recalling, moreover, that he delivered the lectures at a time when there was by no means unanimity on the value of English common law. (The lingering wounds of the War of 1812 and Britain's all-but-official support of the Confederacy continued to fester, even among some lawyers.)

Holmes's later essay on The Path of the Law remains a classic and quite conservative statement of the reasons he thought laws were necessary. (Not to enable human flourishing or promote the general welfare, but to keep the bad guys from doing too much damage.) Of course he wrote it long before his controversial career on the Supreme Court.

I would say of Holmes the Supreme Court Justice what the late Robert Cover famously said of Felix Frankfurter -- an average Justice with ordinary skills, heavily hyped because of the great expectations that preceded his appointment. (Professor Cover compared Holmes to Yankee centerfielder Bobby Murcer. If you do not know who Bobby Murcer was, well, perhaps that is the point.) And, as the Alschuler book makes clear, Holmes, although heroically wounded in the Civil War (was it at Ball's Bluff?) was not a particularly admirable individual, either.
4.4.2006 7:25pm
Goober (mail):
Whoops; Orin should have made clear he was asking why Prof. B thinks that Holmes's reputation has suffered, not why the suffering reputation itself. I'm skeptical of the argument myself.
4.4.2006 7:29pm
JLR (mail) (www):
I find the comparison between Justice Holmes and Bobby Murcer to be interesting.

For what it's worth, Bobby Murcer replaced Mickey Mantle, while Oliver Wendell Holmes replaced Horace Gray. With all due respect to Justice Gray, I don't think he measures up in Supreme Court history the way Mickey Mantle does in baseball history. (FYI: if my memory serves me correctly, Louis Brandeis served as Horace Gray's clerk when Gray was on the Massachusetts Supreme Court. )
4.4.2006 7:58pm
Hey, Bobby Murcer was my favorite player growing up!

I read the Common Law in law school, and thought it was a wonderfully clear and incisive analysis of the development of the common law to that time. It may be obsolete now, but still worthy of great admiration.
4.4.2006 8:53pm
Paul Pflumm (mail):
It was Chief Justice Holmes of the Supreme Judicial Court of the Commonwealth of Massachusetts who left a mark, not the old man who later took up residence in Washington.
4.4.2006 9:52pm