Doing His Duty

Justice Oliver Wendell Holmes: Law and the Inner Self.
by G. Edward White.
Oxford. 628 pp. $37.50.

Oliver Wendell Holmes is customarily called America’s greatest jurist, but outside of the legal profession few today can be aware of his influence. With his piercing eyes and imposing handlebar mustache, he gazes out at us from photographs as the embodiment of an alien, 19th-century ethos: a kind of Rough Rider in robes. Yet when Holmes died in 1935, just shy of his ninety-fourth birthday, he had already helped to launch the biggest revolution in legal thinking since John Marshall made the Supreme Court into the definitive arbiter of the Constitution’s meaning. The effects of Holmes’s revolution, moreover, are still very much with us.

More forcefully than any other jurist of his time, Holmes argued that judges could no longer afford to bury themselves in ancient treatises, pretending that the law followed an autonomous logic conceived in an abstract realm beyond social existence; instead, the law must acknowledge its subordination to political institutions, which were themselves influenced by powerful social forces that judges could not ignore.

This claim was inspiring to “progressive” movements in legal thinking which were trying to make the law more responsive to the forces of social change, and which in turn helped to justify the transformation of the Supreme Court (to the horror of Holmes’s conservative judicial brethren) into an often-willing accomplice of social-welfare legislation.

Today, the whole issue of law as a social instrument has been opened anew for debate. In the wake of the continued burgeoning of the welfare state—eclipsing anything dreamed of by Depression-era progressives—and what many see as the pernicious social activism of the Warren and Burger Courts, there is a pervasive wariness among all but the die-hard Left about judges legislating from the bench. Since Holmes, intentionally or not, helped to seed the intellectual rationale for judicial activism, the time is ripe for a critical reassessment of his jurisprudence.

G. Edward White is a noted legal historian and the author of acclaimed studies of Earl Warren and John Marshall, and his latest work is the first book-length treatment in decades to attempt a comprehensive analysis of Holmes’s evolving legal thought. In it, White offers a judicious, if grudging, account of Holmes the man, and a diligent overview of his ideas. Unfortunately, however, the book is also marred by self-consciously clever academic criticisms of Holmes’s views and by an apparent hostility to Holmes’s character; it also ultimately fails to reckon with the issue of what remains viable in Holmes’s approach to law.

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White’s study is particularly useful in showing how the course taken by the Supreme Court in the last decades in fact diverges radically from Holmes’s intentions. For Holmes, far from being an advocate of judicial activism, actually believed that the role of courts was very limited.

According to Holmes, a judge’s function was simply to give effect to the will of those in power, who promulgated the law. He argued—contra the “natural-law” tradition which grounds legal obligation in higher moral authority, such as religious sanction or “transcendental reason”—that there was no “brooding omnipresence in the sky” (as he put it) from which judges could draw legal rules. As a necessary conclusion, Holmes felt that judges were bound to follow lawful authority even where they did not like the laws or thought them immoral.

This notion—that the source of legal obligation is political sovereignty—is known as legal “positivism,” and one of White’s major themes is the central role played by positivism in Holmes’s theories and judicial opinions.

For the young progressives of the 1920’s, like Felix Frankfurter, Holmes’s deference to legislatures seemed to offer encouragement to their own efforts at fostering social and economic “experiments” through state initiatives. Similarly, Holmes’s celebrated dissents in several freedom-of-speech cases (involving the convictions of assorted radicals for “seditious” pamphleteering) cemented his reputation as an apparent advocate of liberal causes. In truth, however, as White persuasively argues, the progressives misunderstood Holmes’s iconoclasm, mistaking his polemic against judicial arrogance for a sympathetic paean to social change. In fact, Holmes was uniformly skeptical about the value of the progressives’ social programs, and evinced a mandarin disdain for their redistributive intent.

White attributes Holmes’s jaundiced view of social reform to an underlying pessimism about human nature. This may well be right. Unfortunately, however, in affixing labels on Holmes’s positions, White too often resorts to a potted history of ideas. Take, for example, Holmes’s dissent in a labor case he heard during his tenure on Massachusetts’s highest court. Although he felt inclined to let unions pursue their cause unhindered by judicial obstacles, Holmes was unimpressed by union aims:

While I think the strike a lawful instrument in the universal struggle of life, I think it pure phantasy to suppose that there is a body of capital of which labor as a whole secures a larger share by that means. . . . Organization and strikes may get a larger share for the members of the organization, but if they do, they get it at the expense of the less organized and less powerful portion of the laboring mass. They do not create something out of nothing. . . .

Though lacking in Keynesian nuance, Holmes’s claim that gains for labor unions can come at the expense of other workers is not far-fetched. Yet White in his gloss on this passage condescendingly treats Holmes’s reasoning as if it were the ruminations of a crackpot reactionary: “In this paragraph one gets a glimpse of the distinctive combination of social Darwinism and Malthusianism that characterized Holmes as a political economist. . . .”

The reference to Malthus is especially curious, since (as White shows later) Holmes could not have read Malthus until a number of years after this dissenting opinion. But the main point is that, White’s stigmatizing and anachronistic label notwithstanding, in his labor opinions as elsewhere Holmes was being true to his positivist vision and manifesting his great integrity as a judge. Though he considered the cause of labor ultimately futile, and misguided as a path to human improvement, he would not stand in the way of this powerful social current.

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White’s carping style, intended to debunk retrospective idealizations of Holmes as a liberal, pervades his descriptions of Holmes’s judicial career. To take another example: more often than not, Holmes allowed his positivist views of legislative deference to defeat compelling civil-rights claims of Southern blacks; but White unfairly attacks Holmes even when he favored such claims. Rarely does White make any searching comparisons of Holmes’s assumptions with those of his fellow judges and other contemporaries—except where, by today’s lights, he can be compared unfavorably. In describing Holmes’s intellectual motives in various episodes, White may offer several possible interpretations, but he always prefers the least charitable.

The bias extends beyond Holmes’s thinking to encompass his style and even, in the end, his person. Summing up Holmes’s career as a judge, White concedes his intellectual daring, his epigrammatic wit, his unalloyed pleasure in judging, and his astonishing stamina—Holmes worked rapidly and tirelessly until he was forced off the Court at the age of ninety, when he had become too frail to manage the daily routine. Yet White manages to turn even these virtues into vices. Thus, Holmes’s intellectual daring becomes arrogant solipsism, signaling contempt for a collegial profession; his wit is turned into a perverse self-indulgence; his delight in dispatching cases, a cold rush to judgment; his indefatigable sense of duty, a masquerade of self-deception as Holmes (in White’s reading) tried by means of the daily grind to hide an essential void within.

As a person, White concludes, Holmes was essentially a loner:

It is one of the ironies of Holmes’s career that although he cared so much for recognition, and although so many persons, over the years, have made an investment in his ideas or his work or his life, he gave so little of himself to the persons around him, even those whom he loved.

This is a chilling misprision of a life rich in friendships which occasioned some of the very materials—drawn from a fascinating, voluminous correspondence—on which White has been able to construct his misleading portrait.

White finds Holmes’s austerity not only unappealing but even, it seems, incomprehensible. Tellingly, he remains unmoved by Holmes’s altogether well-earned image as a Civil War hero. It is not that he blames Holmes—dragged through the mud and blood of three brutal campaigns, shot three times, and finally disillusioned—for “mustering out” of the service before war’s end. Rather, he cannot quite forgive him for at once rendering in his later writings a harrowing picture of battle and then going on to extol the beauty of great causes and the sense of pride at doing one’s duty.

For White, these are all empty terms, somehow belied by Holmes’s actual experience. But here once again he misses Holmes’s essential integrity, and, in this case, the analogy between Holmes’s positivist vision of the role of the judge and the soldier’s sense of duty. Though neither religious nor spiritual in a conventional sense, Holmes nonetheless held on to a faith in the propriety of his mission—despite personal doubts, pessimism, and even disillusionment. In this way, he was a 19th-century figure after all, a Victorian gentleman the likes of whom we will probably never see again.