A Nightmare Justice

Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who showed virtually no interest in civil liberties, dissenting, for example, from the Court’s decision invalidating a law banning the teaching of foreign languages in private schools; who wrote one of the most intemperate opinions in Supreme Court history, affirming the sterilization of alleged imbeciles, with his only regret that his colleagues made him tone down his wording; who wrote, even after being censored by his colleagues, that instead of waiting to “execute degenerate offspring for crime, or to let them starve for their imbecility,” it’s best to prevent the “manifestly unfit from continuing their kind”; who mocked the notion that the Nineteenth Amendment signaled that the law should treat women equally with men: “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;” who was such a strong majoritarian that he argued that “a law should be called good if it reflects the will of the dominant forces of the community, even if it takes us all to hell.”

In fact, you don’t have to imagine such a Justice, as I’ve described Oliver Wendell Holmes, Jr.

One might think that given his highly illiberal views on a wide range of issues, Holmes would be utterly discredited by 2011. But Holmes is still frequently cited by name in the courts, including the Supreme Court. In other words, the Justices still act as if dicta from Holmes is worth more than dicta from the mean Justice, when by all rights it should be the opposite. Holmes is apparently still living off the residual good will engendered by his being on the right side of history in Lochner and other cases involving federal and state regulations, and by the fact that his acolytes (e.g.) created a powerful myth that Holmes was a prescient liberal, a counterfactual that seems to have some residual staying power.

Holmes’s reputation has clearly declined over the past couple of decades, but not so much that judges seem to feel even faint embarrassment in citing and indeed venerating him, nor enough that even elite legal scholars always recognize the decline.

Related thoughts here.

UPDATE: It’s odd, but several commentators for some reason think this post is an attack on modern American liberal jurists. In fact, I think Holmes’s stock these days is higher among conservative jurists than among liberals, and my post was inspired in part by (conservative) Judge J. Harvie Wilkinson’s holding up Holmes as a role model at the recent American Constitution Society national conference. I dealt with the irony of conservatives adopting Holmesian position once associated with the Progressive Left here.

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