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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 […]

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