Justice Holmes and Conservatism

This essay investigates the relationship between Ralph Waldo Emerson and Oliver Wendell Holmes, Jr. in the context of the common law. Holmes’s Emersonian writings, in particular his dissents, fall within the theoretical framework of agonism, which Harold Bloom refers to as a revisionary and Emersonian “program.” Agonism as a political and aesthetic theory maintains that sites of contestation can be productive rather than destructive; it suggests that confrontational relationships can be at once mutually offsetting and generative. Drawing from the Greek word for an athletic competition, agonism applied to rhetoric underscores the importance of mutuality to conflict: writers struggling against other writers understand and admire, yet seek creatively to outdo and overcome, their competition. The common-law system substantiates this theory insofar as every case answers an anterior case and creates a succession of precedents marked by strong judges and justices struggling against their predecessors. I submit that Emerson and Holmes were both pragmatic champions of descendent agonism, the former in the American literary tradition and the latter in the American common-law tradition that is distinct from its British precursor.

This paper examines the tradition and influence of pragmatism and judicial restraint in American legal culture. In order to better understand the intellectual foundation of this tradition, I will examine the jurisprudence of James Bradley Thayer and Oliver Wendell Holmes. I will argue that this discourse has enriched debates about the constitutional relationship between the judiciary and the modern administrative state, and that a deeper understanding of this tradition can help to unravel thorny questions regarding the maintenance of constitutional values in a modern democracy committed to the rule of law.

2015

This essay builds on recent work by Susan Haack to suggest that Oliver Wendell Holmes Jr.’s conception of the common law was influenced by Darwinian evolution and classical pragmatism. This is no small claim: perceptions of what the common law is and does within the constitutional framework of the United States continue to be heavily debated. Holmes’s paradigm for the common law both revised and extended the models set forth by Sir Edward Coke, Thomas Hobbes, Sir Matthew Hale, and Sir William Blackstone. Adding additional substance to Haack’s argument by pointing out passages in Holmes’s opinions and in his only book, The Common Law, that corroborate her claims about the particular features of Holmes’s pragmatism, this essay concludes by suggesting that, because of his connections with the classical pragmatists and his reverence for Emerson, Holmes is the best place to begin answering the famous question formulated by Stanley Cavell: “What’s the Use in Calling Emerson a Pragmatist?”

Oliver Wendell Holmes Jr. turned forty in 1881. The publication of The Common Law that year afforded him the opportunity to express his jurisprudence to a wide audience. Over the next year, he would become a professor at Harvard Law School and then, a few months later, an associate justice of the Massachusetts Supreme Judicial Court. Emerson died in 1882, and Holmes began to articulate Emersonian pragmatism in new ways more suited for the industrial, post-Civil War environment in which transcendentalism no longer held credence. This essay examines Holmes's adaptation of Emersonian pragmatism as a synthesis of some pragmatic theories of C.S. Peirce, William James, and John Dewey.

Dissenting opinions and many concurring opinions include nonbinding statements, rationales, and explanations. What compels judges to add their losing arguments to the vast deposit of rejected legal propositions? This essay argues that such opinions, although lacking in compulsory application and effect, contribute to our fund of knowledge, diversify our perspectives, and shape the trajectory of the law as it is embedded in a textual network of cases. Judges are dialogic, discursive actors who, by framing and molding legal precedents, participate in the transmission of cultural postulates and practical solutions to future generations with unforeseen conflicts. Judges are in this sense the conduits through which pass selectively retained principles and gradual modifications in the rules that govern society. Understanding why judges author concurring or dissenting opinions that do not obtain as law requires some historical mapping; thus, the essay begins by supplying a brief account of the opinion practices of the United States Supreme Court. It then discusses why nonbinding opinions such as concurrences or dissents are constructive. The success of these writings, some of which have been vindicated over time, owes to their ability to shape the character and facilitate the development of American constitutional law. The essay concludes by discussing how such opinions reflect and enact the common-law theories on which the American legal system has flourished, and finally by celebrating concurring and dissenting opinions as an intricate and important form of judicial service to the legal profession.

First Amendment Law Review, 2015

For quite some time it was far from certain that false statements of fact were to be considered protected speech. While “[u]nder the First Amendment, there is no such thing as a false idea,” Justice Powell wrote for a Supreme Court majority in 1974, “there is no constitutional value in false statements of fact. Neither the intentional lie nor the careless error materially advances society's interest in ‘uninhibited, robust and wide-open’ debate on public issues.” Numerous decisions relied and elaborated on that rationale. In 2012 it was altered significantly, when the Supreme Court overturned a conviction based on a statute prohibiting any false representation to have been awarded military decorations. “Our constitutional tradition stands against the idea that we need Oceania’s Ministry of Truth,” Justice Kennedy emphasized on behalf of the plurality, drawing on Brandeis and Holmes that “the remedy for speech that is false . . . is speech that is true.” Also, “a false statement (even if made deliberately to mislead),” Justice Breyer added in his concurrence, relying on positions originally developed by Mill, “can promote a form of thought that ultimately helps realize the truth.” The result is to be applauded: speech not causing any legally cognizable harm, beyond being merely erroneous, is indeed entitled to comprehensive First Amendment protection. The reasoning, however, is not: Even if Mill, Brandeis, and Holmes are regularly lumped together when it comes to arguing in favor of a robust protection of falsehood, their positions as to whether and why false statements of fact ought to be shielded against government intervention are all too different to provide a single, coherent rationale. The following Article makes the argument that among the concepts of Mill, Brandeis, and Holmes, only the latter position advo-cates consistently in favor of true epistemic neutrality of the marketplace of discussion.

The Catholic Lawyer, 2005

There was a single silent dissent in the Buck v. Bell (1927) U.S. Supreme Court case authorizing involuntary eugenic sterilization. It was by the sole Catholic justice. This paper makes the case that his reasons were from due process and religious concerns. It also critiques the evolutionary and utilitarian justification of the majority opinion of the Chief Justice, Oliver Wendell Holmes, Jr.