My brother ‘75 J.D. sent me an essay+ by Lincoln Caplan ‘72 J.D. ‘76 from the Harvard Alumnus magazine. (You know those slick magazines whose sole purpose is to celebrate the tribal connections of alumni in hopes they’ll give scads of money after having paid scads of money to get the right to add those pretentious dates after their names, tidbits that really tell us nothing about the individual. I get one, too, from Penn ‘69. It is a bit disturbing when the only people cited are those with Harvard dates after their names. Cozy club, indeed. For $1,000 I’ll be happy to give you the right to put any initials and a date after your name. Make checks payable to…)
More often than not, however, these magazine have provocative articles related to subjects that fascinate me. Caplan’s essay ruminates on the background of Justice Oliver Wendell Holmes as portrayed in a new biography by Stephen Budiansky, one of my favorite authors. As Caplan notes, the biographies of the current justices are worlds apart from those of everyone else, whereas Holmes, wounded several times and once almost fatally, had a distinctly different life experience. (I might argue that Justices Thomas and Sotomayor come from similarly difficult circumstances, although none had his profound war experience.) It was the war experience that shaped his judicial philosophy. “He had gone off to fight because of his moral beliefs, which he held with singular fervor. The war did more than make him lose those beliefs. It made him lose his belief in beliefs.” Caplan argues “In applying law to facts, he made clear, they were law-makers, unconstrained by law itself—a role society would accept only if these law-makers were not tainted by partisanship.” Whether that’s a good thing or not remains contested. Felix Frankfurter must have been rolling over in his grave. Not being a complete advocate of judicial restraint, myself, the idea of an unelected group of nine remaking themselves as a super-legislature does not enthrall me. The idea the nine could ever be totally removed from partisanship strikes me as wishful thinking. Yet, Caplan upholds Holmes as an icon of judicial restraint. There seems to be a contradiction there. As he notes judicial restraint is in the eye of the politician.
Caplan abjures the court’s striking down of many New Deal laws because they disagreed with the New Deal policies. He argues Holmes would have voted in dissent to uphold those laws even those he disagreed strenuously with them. “The approach he employed to justify his decisions and preserve their legitimacy was judicial restraint: except in rare instances, he believed, courts should uphold laws as long as they had a reasonable basis, because they reflected the will of the community enacted by elected legislators.” To Budiansky, the Civil War made Holmes a skeptic—doubting and fatalistic—but not a cynic: it made him question “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.”
The personal experience justices all have shapes decisions in many ways and one of Holmes’s most notorious of decisions, Buck v Bell is a good example. Basically, Holmes with an 8 member majority (Justice Butler was the lone dissenter) wrote that the intellectually disabled could be forcibly sterilized by the state. It legalized the practice of eugenic sterilization. “Three generations of imbeciles are enough,” he infamously wrote. (Buck was not intellectually disabled as it turns out but was being hidden following a rape. She died in 1983. See Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Buck v. Bell: Eugenics, the Supreme Court, and Buck V. Bell by Paul Lobardo.) Adam Cohen ’84, J.D. ’87, wrote of Holmes’s experience, ““life was naturally competitive and cruel, and he had little inclination to rein in its harsh injustices.” Holmes had no sympathy for the downtrodden. One could argue Holmes was merely expressing restraint as it simply validated an existing Virginia law. Except, perhaps for that ill-chosen phrase.
The dissent that had justifiably garnered Holmes the most acclaim was Abrams v. United States. By 7-2 in 1919, the Supreme Court upheld the conviction of five Russian Jewish anarchists under the 1918 Sedition Act. Shades of the Alien and Seditions Acts of John Adams. (Caplan’s discussion of the role of the Judiciary Act of 1925 in leading to more dissents is quite interesting. Previously, “The law was “fixed and certain” because 9-0 opinions were routine: 84 percent of that Court’s opinions were unanimous. . . .last term, the justices were in total agreement in only 26 percent of the cases they decided.” That doesn’t mean they were less often unanimous. Note that in the 2017 term 54% were unanimous and only 14% were 5-4. The balance were all over the place policy-wise. *) His dissent laid the groundwork for tolerance of thought becoming a national virtue (well except perhaps during the McCarthy era.) It established the “clear and present danger” standard, i.e. no yelling “fire” in a crowded theater.
Caplan writes, “Free-speech campaigns invariably extol individuals whose freedom to express hated speech is in jeopardy. But to Holmes, that freedom is tied to the interests of society, not to an individual right: free speech is a listener’s right as much as a speaker’s. Democracy depends on deliberation and even, as Holmes demonstrated in the Abrams case, on doubting “one’s own first principles.” With that dissent, he helped launch a nation-defining movement. He tackled a decisive challenge for the twentieth century that is again decisive for the twenty-first: how to safeguard speech, for the sake of American democracy.”
Holmes, Black, Frankfurter, Roberts, Scalia, et al all had competing philosophies. Whichever is correct depends less on the intrinsic value of the argument than competing views of what society wants. In a time of legislative dysfunction, it is natural to look to the court as a kind of super-legislature. That’s certainly not what the men at Philadelphia wanted or even conceived of. Not even John Marshall in establishing judicial review could have dreamed of the Court evolving into that role. I, for one, remain skeptical of that role.
+ https://harvardmagazine.com/2019/05/supreme-court-holmes
* https://www.washingtonpost.com/news/posteverything/wp/2018/06/28/those-5-4-decisions-on-the-supreme-court-9-0-is-far-more-common/?utm_term=.552cada990a2
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