Last fall, after Judge Am Amy Coney Barrett promised to “apply the law as it is written” and leave policy decisions to the other branches of government, Stephen Budiansky wrote a letter that was published in the New York Times. “If that’s all judges need to do, we’d have no need for judges.”
Budiansky, author of a 2019 biography of Oliver Wendall Holmes, who served on the US Supreme Court from 1903 until 1932, continued that as Holmes once observed, “the law, the Constitution above all, is not a set of ‘mathematical formulas.’ Most questions of law, particularly at the appellate level, come down to claims of competing rights that judges are called upon to balance with sensitivity, rigorous analysis and an appreciation for their actual consequences to society at large.”
Once lionized as one of America’s great jurists and later criticized for several notorious decisions, Holmes, is pictured on today’s #stampoftheday, a 15-cent stamp issued on March 8, 1968, 127 years after he was born (on March 8, 1841).
That stamp, however, honors a complicated man whose reputation has waxed and waned. “Once upon a time, Oliver Wendell Holmes Jr. was the great modern American jurist, noted John Fabian Witt noted in his New Republic Review of Budiansky’s book. “…Veneration of Justice Holmes has, however, declined steeply.”
In his Washington Post review of the book, Jeffrey Rosen, President and CEO of the National Constitution Center, noted that Holmes’ “reputation…has fluctuated along with the political and constitutional battles of every generation since he was appointed to the Supreme Court in 1902. At the beginning of the 20th century, Holmes was lionized as the greatest legal thinker of his time by progressives who celebrated his dissenting opinions arguing for the protection of free speech and the upholding of economic regulations. After World War II, he was criticized by Catholic legal scholars and civil-libertarian liberals who were alarmed to discover his enthusiasm for eugenics, which he displayed in upholding mandatory-sterilization laws,” a decision in which he infamously wrote, “three generations of imbeciles are enough.”
Rosen added, “Christian theologians and conservative political activists denounced Holmes’s moral relativism in insisting that law could be separated from God’s will. More recently, Holmes has been out of fashion among both conservative originalists and progressive living-constitutionalists, who dislike his rejection of the idea that the Constitution contains absolute principles that can be invoked to protect minorities against mob rule.”
Despite his flaws, Holmes offered many important and still-timely insights. To begin with, his experiences in the Civil War made him skeptical of moral systems. “To have doubted one’s own first principles,” Holmes once stated, “is a mark of a civilized man.”
This skepticism led him take issue with those who saw the constitution as a fixed document. Rather, he once wrote, a constitution “is a frame of government for men of opposite opinions and for the future, and therefore [we should] not hastily import into it our own views, or unexpressed limitations derived merely from the practices of the past.”
Holmes’ strong views meant that while he had no patience for those (like Barrett) who argue for a close reading of what its writers believed when it was written, it also made him skeptical of claims for rights not articulated in the document. Moreover, as Rosen notes, “Holmes’s radical devotion to judicial restraint led him to vote to uphold not only progressive economic legislation but also some of the most illiberal laws of his day.”
But Holmes’ view also ultimately led him to express expansive and seminal views of the First Amendment. “The best test of truth is the power of the thought to get itself accepted in the competition of the market,” he wrote in one of his most famous opinions. :…That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge.”
Much later, he echoed and expanded on this idea, noting, “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought-not free thought for those who agree with us, but freedom for the thought that we hate.”
More broadly, Holmes offers an important lesson about both the courts and humility. “Judges judge,” Budiansky wrote in his New York Times letter, “which is why their personal philosophies matter – and inescapably determine policy, whether they admit it or not. As Holmes astutely observed, judges who deny they are settling policy questions in their decisions are more likely to import their personal prejudices into the law than those who forthrightly acknowledge this obvious fact, and openly explain their reasoning.”
And, as Rosen noted, “Today, when progressives, conservatives and libertarians are all turning to the courts to overturn the judgments of legislatures, and when Twitter mobs on the right and the left attack each other with the moralistic certainty that Holmes deplored, Holmes’s intellectual humility, and his willingness to question even his own deeply held premises…are humbling and inspiring. And at a time when…America is more polarized than at any time since the Civil War, the ‘skeptical humility,’ as Budiansky puts it, that Holmes took from the war seems more elusive, and more urgently needed, than ever.”
Be well, stay safe, be skeptically humble, fight for justice, and work for peace.