Digital

Exclusive online content

Dissenting from Holmes

By: Martin J. Salvucci
November 4, 2019

ften quoted yet rarely understood, Supreme Court Justice Oliver Wendell Holmes, Jr. (1841-1935) might reasonably be accused of achieving fame in large part for achieving fame. Although few would dispute his unmatched ability for the felicitous turn of phrase, the Yankee from Olympus has, in recent years, fared poorly in the legal profession’s marketplace of ideas. Long reviled by broad segments of the judicial right for his unapologetic relativism, Holmes has likewise attracted censure from the progressive left for his refusal to confront the majoritarian excesses of the political process. Stephen Budiansky—the latest in a long line of biographers and, we learn, admirers—sets out to dissent from these and seemingly all other criticisms in Oliver Wendell Holmes: A Life in War, Law, and Ideas.

This task does not lack for ambition. And to the extent Budiansky breaks new ground—always a threshold concern in the case of such well-papered legacies—he does so by crafting an engaging portrait of a headstrong young man. A military historian whose previous books include Perilous Fight: America's Intrepid War with Britain on the High Seas (2011) and The Bloody Shirt: Terror After the Civil War (2007), Budiansky begins by offering a textured account of Antebellum Boston near the height of its influence. The intellectual capitol of America was then fecund in the way that only imminent crisis can inspire. Living there had a profound impact on young Wendell Holmes—in particular it encouraged his abolitionist convictions, which eventually impelled his departure from Harvard Yard at the outbreak of the Civil War in 1861. Budiansky lavishes attention upon Holmes’s volunteer service to the Union Army as a thrice-wounded officer in the so-called “Harvard Regiment.”

In part this outsized attention is meant to reflect the war’s outsized role in Holmes’s intellectual formation: Budiansky takes almost as given Louis Menand’s now-famous observation that the Civil War caused young Wendell Holmes to “lose his belief in beliefs.” But the war also looms large because of a self-conscious methodological choice on Budiansky’s part. He grounds much of his account—and not just of Holmes’s youth—in careful study of Holmes’s private correspondence. At its outset, the book benefits tremendously from the author’s evident facility with matters of military history. And Budiansky supplements his elegant account of three bloody years in America with a number of contemporaneous observations in Holmes’s own voice. Notwithstanding the latter’s Yankee reticence, this often makes for powerful reading.

Budiansky also delivers an intriguing study of Holmes’s decade-plus career in private practice—particularly his devotion to careful dissection of the nature and history of common law, which presaged the widely-quoted-but-little-read Common Law (1881). Budiansky takes great pains to note Holmes’s skepticism of academic life, but the tension between this observation and Holmes’s well-documented, wide-ranging erudition sits frustratingly just beyond serious examination. One theory might suggest that Holmes—the prototypical pragmatist—found worthless the pursuit of ideas for their own sake. But this doesn’t seem quite right—as Budiansky acknowledges, albeit with insufficient elaboration.

One is left to wonder whether the solicitude that marks Budiansky’s study of Holmes’s early life robs an already-lengthy account of subsequent opportunities for careful analysis. Given Holmes’s five decades on the bench, some picking and choosing is, of course, to be expected. But Budiansky seems to lose steam with the passage of years, such that readers are left mostly to guess at the significance of several tantalizing revelations, including an otherwise fascinating discussion of Holmes’s brief career “riding circuit” as a trial judge in Massachusetts.

Holmes, we are told repeatedly—and perhaps too frequently to be truly convinced—embodies an edifying combination of skepticism and considered restraint. This makes for a fine story, though it suffers from several obvious defects. For one thing, Budiansky evinces little interest in refereeing complex legal disputes. He seems all too ready to let Holmes’s winsome wit distract from more substantive concerns. Whatever the merits, for instance, of arguments rooted in so-called “substantive due process”—the notion that, for certain purposes, state regulation of economic activity could deprive citizens of liberty or property without due process of law—Holmes’s ipse dixit, no matter how clever or cutting, cannot alone refute an idea that came to dominate American jurisprudence for the better part of fifty years. At his worst, Budiansky’s Holmes comes to resemble a prototype version of Christopher Hitchens, breezily belittling his opponents into hapless posterity.

This version of Holmes also overlooks profound inconsistencies, of the sort the label “pragmatic” cannot simply erase. In large part, we imagine, because he must, Budiansky does confront the most glaring contradiction of Holmes’s jurisprudential legacy—namely his effort to reframe the First Amendment from simple prohibition against prior restraint to affirmative protection of political speech against legal consequences. This project was, of course, deeply inconsistent with received common-law understandings of “the freedom of speech.” It was also something of a surprise from Holmes, who had consistently embraced the common-law approach.

Holmes’s emergence as the most eloquent champion of modern free-speech jurisprudence is already the stuff of historical legend. And Budiansky once again weaves an elegant tale of epistolary persuasion. Persuaded by a ghostly retinue that included Louis Brandeis, Learned Hand, and Harold Laski, the man without belief in beliefs came to believe quite strongly in the value of the free exchange of ideas. For a jurist who self-consciously trumpeted his own minimalist conviction—the principle that (unelected) judges should not disturb the results of the political process—this was a radical proposition. Holmes’s now-famous dissent in Abrams v United States (1919), for example, suggested that the court should intervene to stop elected officials from punishing incitements to resistance during wartime.

Budiansky uncritically accepts the standard rationale for this seeming contradiction: That the political process—always of utmost concern to Holmes—simply could not function properly in the absence of some marketplace for ideas. But all truths, save for this one, must be relative. This makes for disappointing history. Not least because this account fails to grapple with the durability and relative success of received common-law understandings, which permitted far more onerous restrictions—and far more draconian punishments—on the unlawful exercise of “the freedom of speech.” Perhaps Budiansky cannot answer this question because there is no ready answer. But readers would be forgiven for wondering if he just didn’t look too hard.

Indeed, Budiansky’s treatment of the less edifying features of Holmes’s public legacy—particularly his gleeful endorsement of compulsory sterilization in the infamous Buck v. Bell (1927), to say nothing of his uncommon enthusiasm for the practice of eugenics—offers a case study in apology. Of Buck, Budiansky wonders aloud whether Holmes would have charted some different course, had he known Carrie Buck was twice victimized—in the first instance by the rape that resulted in her “illegitimate” pregnancy, and the second by rank collusion among the parties who sought to sterilize her. Budiansky also suggests that Chief Justice William Howard Taft “egged on” Holmes, overlooking the latter’s own sense of tremendous achievement in reviewing his handiwork.

This version of Holmes—the one who would have never disappointed us, had only the world gotten out of his way—cheapens a complex judicial legacy. Save for the repeated assertion that Holmes would brook no concession to modern-day originalists and textualists—to say nothing, we assume, of the Federalist Society—Budiansky avoids much explicit opining on the contemporary relevance of his subject. The safest inference, of course, is some reminder of the enduring virtues of judicial minimalism. But one may wonder fairly whether Holmes offers the best exponent for this point. And, of course, it simply assumes—again, perhaps because Holmes was that much cleverer than his antagonists—the virtues of minimalism, as practiced by the Yankee from Olympus.

On the first point, Holmes’s much-celebrated legacy of First Amendment jurisprudence offers ample reason for caution. In the hundred years since Holmes’s dissent in Abrams, the Supreme Court has—almost always for policy reasons—radically expanded the scope of the First Amendment’s protections for “free speech.” Some of these decisions (e.g., New York Times v. Sullivan, which in 1964 limited the ability of public figures to sue newspapers for libel) rank among the most celebrated in the history of the Supreme Court. Others (e.g., 1989’s Texas v. Johnson, which found prohibitions against flag-burning unconstitutional) remain controversial, despite their undeniable status as canon.

The Roberts Court has, if anything, accelerated this trend, frequently with the willing support of at least eight justices. A relative handful of these decisions (e.g., Citizens United v. FEC of 2010, which struck down prohibitions on corporate political expenditures) raise the prospect of pitched partisan conflict. But many more (e.g., Snyder v. Phelps, which concluded in 2011 that speech on a matter of public concern could never form the basis for the common-law tort of emotional distress) have witnessed an almost-unanimous Supreme Court blithely set aside decades (and sometimes centuries) worth of statutory and common-law authorities. This is hardly the stuff of a modest judiciary. And this phenomenon is no longer limited to the “free speech” provisions of the First Amendment.

Of course, Holmes cannot shoulder the blame entirely for the judicial branch’s radical arrogation of power and influence. But the incorporation of federal constitutional rights against the states—a project for which the First Amendment, as recast by Holmes, soon formed the tip of the spear—should be considered patient zero. In part thanks to Holmes, we have inherited a world where common-law (or statutory) rights have been constitutionalized, courtesy of the federal courts. And, ironically, the political branches have little say in pushing back against the definition or horizons of these rights. It is difficult to imagine this state of play not troubling Holmes. And so, too, should it trouble his shrinking circle of devotees.

To be clear, the development of modern statutory law—particularly the sprawling and unwieldy United States Code—likely calls into question the relevance of common-law judging in the first instance. Although Holmes—if we are to take Budiansky at his word—might hold contemporary textualists in deep contempt, the interstitial spaces in which the common law thrived are few and far between. For all its manifest flaws, Congress has purposefully written many of these statutes broadly, in part to limit what amounts to policy-making from the bench. At least at the federal level, therefore, it is likely that we shall never see another “great” common-law jurist.

Whether Oliver Wendell Holmes, Jr., really was “great” in that respect remains an open, and—I think—appropriately contested question. The success of his jurisprudential project—at least as it is commonly understood—remains debatable, even on most charitable reading. Perhaps, then, Holmes could be said to offer something of a window into the best and the worst of America during an uncommonly eventful moment in its history. He cultivated the rarest combination of winsome prose and profound erudition; to say nothing of pluck and personality in abundance. But these gifts—and gifts they were, to be sure—provided ample cover for lazy, inconsistent, or flatly incoherent thinking. And the marketplace of ideas is—much like its progenitor—ruthless.