Legal History


Justice Oliver Wendell Holmes. Photo by Harris and Ewing, Library of Congress.

A review of the latest biography on Oliver Wendell Holmes suggests the late justice’s legacies of respect for democracy and his evolving defense of the First Amendment “are in a slow-motion head-on crash.”

The biography is Oliver Wendell Holmes: A Life in War, Law, and Ideas, by Stephen Budiansky. Writing for the New Republic, Yale law professor John Fabian Witt says the book presents the First Amendment and democratic legacies as great triumphs.

But First Amendment jurisprudence has been used to strike down democratically enacted campaign finance restrictions, Witt says. In one decision, the Citizens United ruling in 2010, the U.S. Supreme Court relied on the First Amendment when it overturned restrictions on election-related speech by corporations.

The First Amendment has also been used to undermine democratic regulation of the marketplace, including pharmaceutical advertising rules and mandatory public-sector union fees, Witt points out.

But clashing legacies aren’t the only issue for Holmes scholars. “For a generation,” Witt writes, “critics have attacked him for his callousness toward the poor and disadvantaged, and for taking little interest in the fate of African Americans in civil rights cases, so long as the formalities of the judicial process were properly respected.”

Holmes took a hit to his reputation when he wrote the opinion in Buck v. Bell, which upheld a Virginia law authorizing the sterilization of “feeble-minded” individuals. The woman who challenged the law had been placed in a state institution to hide a pregnancy from a rape. She gave birth to a girl; her mother was also in the facility. “Three generations of imbeciles are enough,” Holmes wrote.

Witt says Budiansky presents Holmes as a “human Holmes,” an “able but diminished man” who made his share of mistakes. “And in this sense, at least, he is a man for our era,” Witt writes. “The Holmes on offer in this engaging new biography matches the reduced expectations Americans have for the Supreme Court today.”

The New York Times review of the biography asserts that Budiansky was perhaps too kind to Holmes. He “self-consciously rejects critical studies of the justice over the past 40 years in favor of a worship that can verge on apologetics,” the review says.

Budiansky surmised, for example, that Holmes might have taken a different stance in Buck v. Bell if he had known of conflicts of interest by the woman challenging the law, Harvard Magazine points out in its review.

In any event, the comprehensive biography makes “a sympathetic-to-Holmes and convincing case that the justice should not be dismissed based on the worst opinion he wrote,” according to Harvard Magazine.

Hat tip to How Appealing.