I could not agree more with Balko when he writes:
Stop quoting Oliver Wendell Holmes, Jr. in defense of your censorious bullshit. In fact, stop quoting Oliver Wendell Holmes for anything. He was a racist, eugenicist,authoritarian asshole. I’ve never understood why progressives have thought so highly of him, back then, or now.
Hear, hear. The most overrated justice in the history of the Supreme Court — and I can’t think of a close second.
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felicis
October 3, 2012 at 9:39 am (UTC -4) Link to this comment
How about ‘stop quoting’. I see a lot of quotes on facebook, in op-eds, all over, and they seem to fall into three categories:
(1) appeal to authority: Thomas Jeffereson said, “…”, so I’m right.
(2) meaningless platitudes: Einstein said “Imagination is more important than knowledge.” (One of the ones I detest the most.)
(3) look how educated I am (or how easily I can look up things on the internet): Cato the Elder said, “…” (or pick any obscure ancient writer).
If a quote is being used *as a citation*, to support your argument (which should then be about what the writer thought or said, or about a topic and you’re introducing an argument that was used by your source), that’s fine – but that’s so rarely the case…
Gregory in Seattle
October 3, 2012 at 9:39 am (UTC -4) Link to this comment
Even racist, eugenicist, authoritarian assholes can have their good points.
Holmes was a strong believer that the law is the law, and that it should not be interpreted through the dirty glass of religious belief.
He was the one who first expounded the idea that the Constitution was a living document rather than holy writ handed down from divinely inspired Framers.
He was a leading proponent of judicial restraint, the idea that judges should involve themselves minimially in deciding law and be respectful of previous judicial rulings on similar matters.
He tended to interpret the First Amendment broadly and helped to establish the precedence that the 14th Amendment requires state and local governments to guarantee constitutional rights such as free speech and free assembly.
While he wrote the opinion for the unanimous 1919 case Schenck v. United States (famous for creating the “clear and present danger” standard), and thus supported a law that made protesting the draft during a time of war an act of espionage (a federal law that still exists today), he was one of two justices to oppose the related law of making protesting material support for war an act of sedition, in the 1919 case of Abrams v. United States.
On today’s political spectrum, he would definitely be classed as a libertarian, not as a liberal. He was deeply cynical of the progressive politics of his day; even so, many of the legal doctrines that are at the heart of current progressive doctrine exist because of Holmes.
We are right to condemn Oliver Wendell Holmes, Jr. for what he got wrong. But let us not forget the many things that he got right.
Chiroptera
October 3, 2012 at 10:19 am (UTC -4) Link to this comment
I’ve never understood why progressives have thought so highly of him, back then, or now.
I think it’s mostly because his name is so fun to say: “Oliver Wendell Holmes.”
democommie
October 3, 2012 at 11:00 am (UTC -4) Link to this comment
“Hear, hear. The most overrated justice in the history of the Supreme Court — and I can’t think of a close second.”
Really?
Considering the current roster I don’t think you’re really trying.
slc1
October 3, 2012 at 12:12 pm (UTC -4) Link to this comment
Re democommie
I don’t think that Scalia, Roberts, et al are overrated to begin with. They’re just bad, bad, bad.
rabbitscribe
October 3, 2012 at 12:36 pm (UTC -4) Link to this comment
” ‘Three generations of imbeciles is enough.’ Is two too few?” ~ H.L. Mencken.
democommie
October 3, 2012 at 12:36 pm (UTC -4) Link to this comment
slc1:
They may not be overrated by rational individuals but the reichwingers likes ‘em some Tony Ducks, Joe Alitohole and Clarabelle Thomas. I keep hearing about what a brilliant jurist Scalia is and I absolutely do not see anything that supports that contention. He and the rest of the appointees by Bush parasite and filidiot have all been reliably partisan on most any major issue and they can all turn on a dime from originalism to precedent when it suits their purpose. None of them has the integrity of a crack dealer.
Ed Brayton
October 3, 2012 at 1:13 pm (UTC -4) Link to this comment
democommie wrote:
I didn’t say Holmes was the worst justice ever, I said he’s the most overrated. For some reason, his name is spoken reverently, especially on the left, for reasons I simply don’t understand (except to chalk it up to mundane ignorance, since few people actually bother reading Supreme Court rulings, especially ones that are nearly a century old now).
Ed Brayton
October 3, 2012 at 1:29 pm (UTC -4) Link to this comment
Gregory in Seattle wrote:
I don’t think this is really a positive thing, as I think the “living Constitution” trope is every bit as absurd as conservative originalism — and completely unnecessary, too. You don’t need to use this weird “living document” metaphor in order to argue, quite correctly, that many provisions of the Constitution require us to apply broad principle in ways that those who wrote and ratified it could not have anticipated. Jack Balkin’s “living originalism” is a far more coherent constitutional theory than the notion that the entire document is somehow “living.”
I don’t think this is a positive either. I am emphatically not a judicial minimalist. Judicial minimalism is an incoherent idea that no one really believes. In reality, everyone believes that judges should show deference only when they think they should show deference. The primary advocates of “judicial restraint” today are conservatives, not liberals (liberals preached that idea in the New Deal era, when they wanted the court to defer to FDR; now they don’t much like it).
I’m not sure how you square that first sentence with his ruling in Schenck, which was one of the most appalling rulings in the history of the court. Not only did the court rule that one could not protest against the draft during wartime, it also introduced that ridiculous “shouting fire in a crowded theater” analogy that I hate, hate, hate (and which was not even remotely analogous — remember that Holmes was using that to argue that protesting the draft was not protected by the First Amendment). It’s true that he contradicted himself in Abrams, but that very inconsistency is part of why I consider him overrated — he didn’t just change his mind on the matter, he actually believed that his dissent in Abrams was consistent with his opinion in Schenck. It was not. And his support for forced sterilization is beyond contempt.
That doesn’t mean he was never right about anything, of course. And he was a great writer. But he was an incoherent legal thinker at best.
leonardschneider
October 3, 2012 at 4:42 pm (UTC -4) Link to this comment
Wait a minute, what does Balko have against the nerdy black kid from Bloom County?
imthegenieicandoanything
October 3, 2012 at 7:15 pm (UTC -4) Link to this comment
It’s the 2-syllable “W” middle name. Liberals usually LOVE anyone with a 2-syllable middle name.
Ralph Emerson? A nobody!
Ralph WALDO Emerson? A genius!
Amadeus Mozart? Not too shabby.
Amadeus WOLFGANG Mozart? Maybe the greatest composer ever!
One reason Bush I is seen as not-so-bad by most Libs is the “Walker” in between his first and surnames. The “Herbert” messed it up.
If the Nazis had been led by Adolf Wolfgang Hitler or the Khymer Rouge by Pol Wonton Pot, some small excuses might have been offered for a few of their “excesses”.
It doesn’t work with 1-syllable names so good (John Wilkes Booth) and NEVER with 3-syllable names (George Washington Bush).
Steve Morrison
October 3, 2012 at 8:58 pm (UTC -4) Link to this comment
Wasn’t it actually Holmes’ father who was the distinguished writer?
democommie
October 5, 2012 at 1:00 am (UTC -4) Link to this comment
“Khymer Rouge”
That’s what happens when you mix Cambodians with Afghanis?
Walton
October 5, 2012 at 4:55 am (UTC -4) Link to this comment
As someone who read Schenck when I studied for an LLM in the States, I agree largely with Ed.
I don’t think Holmes was all bad – he was opposed to the way that conservative justices of his era misused the doctrine of “due process” to strike down economic regulations in cases like Lochner v. New York, for instance. But I don’t think this makes him a hero, and I completely agree with Ed that Schenck was an appalling authoritarian decision (and that the “fire in a crowded theatre” analogy is and has always been bullshit).
I also agree that Holmes’ idea of judicial deference to the democratic will (“the right of a majority to embody their opinions in law” – from his dissent in Lochner) was wrong philosophically, even if it sometimes got him to the right result.
democommie
October 5, 2012 at 7:32 am (UTC -4) Link to this comment
Ed:
I understood your post the first time.
Scalia, for one, is grossly overrated in my opinion. You have said, more than once that he has a sharp and analytical intellect. Yours is not the only opinion that considers him to be an “eminent jurist”. I have seen no evidence of anything since he took the seat on the SCotUS bench to support that assertion.
I am ever so grateful that Robert Bork never got that job. I am somewhat ungrateful that he still breathes but always hold out hope that his condition will change to one where the level of his other bodily functions is commensurate with that of his brain.