Author:	Scott A Liljegren JD United States Navy JAG
Subjects:	Constitutional Law United States (Other articles) Judicial Opinions - United States Jurisprudence United States
Issue:	Volume 7, Number 1 (March 2000)
Category:	Comment

Contents

• Introduction
• From Beacon Hill to the Bench
• The Opinions, The Jurisprudence, and The Constitution
• Conventional Legacy and a Realistic Alternative
• Conclusion
• Notes

Introduction

1. It has been stated that "[d]uring the thirty years he spent in Washington, [Mr. Justice Oliver Wendell Holmes, Jr.] made the greatest contribution since Marshall to American constitutional law."[1] In fact, Holmes' name is really the only name spoken in the same breath with the great Chief Justice.[2] Many, including later Supreme Court Justices, have glorified his varied judicial opinions and tailored his jurisprudence to meet their own needs and desires.[3] And it is the "tailoring" of Justice Holmes that this Article aims to explore.

2. With particular respect to the First and Fourteenth Amendments to the U.S. Constitution,[4] Holmes' majority and dissenting opinions became instrumental in developing some of the most widely discussed and progressive segments of Constitutional law.[5] Yet, as will be pondered herein, to what extent can this development be attributed to Holmes' foresight? Did he intend to change the effect of the due process clause on judicial review and overturning legislative acts? Was the post-1937 Court either reaching back to rely upon some fundamental liberalism of Holmes or extracting judicial restraint jurisprudence from his dissenting opinions to make it advantageously omnipotent? Certainly, during his tenure, Mr. Justice Holmes was present to lend his opinion on all decisions which directly or indirectly involved key Constitutional issues. His opinions are a very important part of how Constitutional law has changed. Make no mistake about that. Perhaps, though, his conventional legacies of courageous liberalism and being forever married to judicial restraint are nothing more than the appearance of Holmes when viewed through Progressive glasses.[6]

3. This Article will briefly reflect upon Justice Holmes' life, focusing on his years as a Supreme Court Justice and his "jurisprudence." It will further address queries of the type raised above, in order to expose the differing constructions that have been placed upon his series of opinions. Finally, it will posit theory as to whether it was truly the legacy of Justice Holmes dictating a bulk of Supreme Court Constitutional decision-making after 1937.

   From Beacon Hill to the Bench

4. One of the most highly revered Justices in the history of the Supreme Court of the United States was born to a prominent Boston doctor on March 8, 1841.[7] Oliver Wendell Holmes, Jr. never knew poverty, although he would face trials and tribulations throughout his illustrative life, including Civil War experiences that haunted him indefinitely.[8] He served as a U.S. Supreme Court Justice from 1902 to 1932,[9] but his legal career dates back to the close of the Civil War period.[10] Indeed, as one author notes, "he loitered across a large swath of American history - from the height of the antebellum abolitionist movement right up to the New Deal. His was not 'a life in our time,' but a life in many times."[11] Perhaps his greatest gift to American law was, more than anything, an impact on Constitutional interpretation and jurisprudence.

5. As a boy growing up in Boston, Holmes was expected to follow the family pedigree and at least study in one of the high academic professions.[12] It has been noted that the young Holmes was not immediately keen to following these strict expectations on command.[13] He had other ideas of striking out and asserting his independence,[14] which is why he joined a Union Army regiment, in 1861,[15] after four very successful years of undergraduate study at Harvard College.[16] Yet, the heroism he expected as a line officer for this great cause and the horrors he actually experienced in the Civil War were two completely different things. Holmes was severely wounded three times and was nearly killed by the age of twenty-two.[17] He then transferred into a staff position and ultimately backed out of service in July of 1864, while the war was still very much alive.[18] Biographers have discussed the effect on Holmes of "having abandoned and survived a conflict that claimed so many friends and regimental comrades."[19] One author asserts that it was this sense of guilt that led him "to romanticize combat and to fill his writings with his famous martial metaphors, as an antidote to more unhappy memories of war."[20] Still another author suggests that Holmes actually decided to accept his first offer of a judgeship instead of re-enlisting, in that he refused to "abandon the fight" again.[21] The debate concerning his post-War psyche and its influence on his future behavior continues to be at issue.

6. After returning home from the war, Holmes remained undecided about his future for a short period, but then enrolled in Harvard Law School in September of 1864.[22] Upon graduation, Justice Holmes, like most law school graduates, passed the bar exam and began working at an area law firm.[23] He was just like any other lawyer in Boston to that point in his short life; but his legal career was soon to change. Only three years out of law school, Holmes was invited to become a part-time lecturer at Harvard.[24] By that time he was also writing many articles for legal publications such as the American Law Review,[25] and he edited the twelfth edition of Kent's Commentaries three years later, in 1873.[26] Little did he know that these stepping stones as a legal scholar were leading him closer and closer to publishing the book that has been said "to change both Holmes's life and the course of American law."[27]

7. The Common Law[28] is a book of lectures which Holmes was invited to deliver in 1880.[29] In the first few lines of the book, published in 1881, came the words that some feel were the spark plug for not only his famous dissenting opinions, but for all judicial restraint jurisprudence thereafter, and the entire posture of the post-1937 Supreme Court.[30] That so very oft-quoted theme reads:

   The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.[31]

8. These words have been reviewed retrospectively, in conjunction with Holmes' opinions, to support the actions of future Justices and those developing areas of jurisprudential restraint.[32] The fact that these words call for the law to consider changing times, public policy, and a judges' personal influences, rather than stagnant and close-minded thought, is readily apparent. On the other hand, should we draw from these words that in 1881 Oliver Wendell Holmes was telling the Supreme Court to leave all government regulation alone in 1937 and beyond? This is the concept that will be entertained infra.

9. From the success of The Common Law came an invitation to join the faculty at his alma mater, Harvard Law School, in 1882.[33] Yet, he only taught there for a single year, because in 1883 he was sworn in as an Associate Justice of the Supreme Judicial Court of Massachusetts.[34] He served that court for twenty years, the last three of which he spent as the Chief Justice.[35] Finally, on December 8, 1902, Mr. Justice Holmes was sworn in as an Associate Justice of the United States Supreme Court.[36] The living legend of this boy from "the Brahmin caste of New England"[37] had only just begun.

   The Opinions, The Jurisprudence, and The Constitution

10. As is noted supra, the United States Supreme Court experienced substantial development during the 30-year tenure of Mr. Justice Holmes. Much of that development pertained to the social engineering that Congress and state legislatures attempted to drive through legislative action.[38] And as fate would hold, many of these liberating social issues came before the Court in the height of Holmes' influence and career.[39] He was such a major player in that modern Constitutional interpretation period from the turn of the century right up to the New Deal.[40] Yet, his legacy of judicial restraint jurisprudence and his influence on future Court decisions is, arguably, even more notable.[41]

11. Throughout the late nineteenth century and up to 1937, a "laissez-faire" philosophical viewpoint dominated all aspects of American society.[42] Adam Smith and other noted philosopher/economists had discussed the concept of a perfect capitalist free-market, with complete freedom to contract and very little government regulation or other intervention.[43] That idea had made its way into the commercial sector, the law-making bodies, and even the courts.[44] In fact, laissez-faire was adopted as such a dominant and protected way of life in America that the Supreme Court began to closely examine those cases involving legislative acts that might place regulatory constraints upon the ability to contract freely.[45] That, in turn, fostered the age-old struggle of protecting the rights of individuals from big government controls versus protecting the likes of bakery employees,[46] child laborers,[47] working women,[48] and those exercising free speech.[49]

12. In the midst of this conservative "hands-off" period emerged the greatest dissenter the Supreme Court has ever known. Justice Holmes held himself out against the majority opinion in many cases where the Court overturned certain regulatory and paternalistic legislative acts.[50] The first and most notable of these dissenting opinions came in the infamous 1905 case Lochner v. New York.[51] The issue in Lochner was whether a New York statute prohibiting bakery employees from working more than 10 hours a day, or 60 hours a week, violated a bakery owner's due process rights in the Fourteenth Amendment of the U.S. Constitution.[52] Was the statute a reasonable exercise of the police power?[53] The Court held that it was not, and found the statute to be unconstitutional on that basis.[54] Holmes' reaction to that decision was truly revolutionary thought. He was in complete disagreement with the author of the majority opinion, Justice Rufus W. Peckham.[55] In one of the most famous dissents ever written, Justice Holmes openly rejected the concept of equating the law with dominant laissez-faire economics.[56] He felt that it is not the role of the judiciary to step in and overturn legislation simply because the Justices personally disagree with the economics or politics involved.[57] He wrote:

    If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions of law.[58]

13. Holmes harbored a strong belief in leaving law-making to the representative legislators, the people who speak for the people.[59] This was Holmes' first hint, since The Common Law, of what others would later term "judicial restraint" jurisprudence.[60]

14. The judicial restraint concept stems from one particular way of viewing the Court's power of "judicial review," originating in the seminal case Marbury v. Madison.[61] Since Marbury, in 1803, the Court has enjoyed an express power to review the Constitutionality of legislation passed by Congress.[62] Seven years later, that power was extended to the review of state legislation in Fletcher v. Peck.[63] As noted above, until Justice Holmes began protesting by way of his dissents, and even up to the New Deal period, the Court used its judicial review power quite actively within a common mindset of laissez-faire, freedom-of-contract principles.[64] Yet, Holmes envisioned a new standard for implementing the judicial review power. He thought that the Court should not strike down an act passed by elected representatives unless it was wholly arbitrary and "beyond fair debate."[65] Indeed, later in his career he developed his point of view into a sort of legislative "reasonable man" standard.[66] In other words, the test is not whether the Justices themselves believe that the law is for the public good, but whether the reasonable legislator could have that belief.[67] Furthermore, "[w]as the statute as applied so clearly arbitrary that legislators acting reasonably could not have believed it necessary or appropriate for public health, safety, morals, or welfare?"[68] These ideas proved to be the seeds that established a basis for justifying the unchecked judicial restraint posture regarding late 1930's New Deal regulation review.[69] Holmes would get the credit.[70]

15. Lochner would also spark the debate about the Constitutionality of using the Fourteenth Amendment due process language as a basis for overturning these legislative acts.[71] From 1890 to 1937, the Supreme Court was using the Due Process Clause to overturn repugnant legislation.[72] Freedom of contract and unregulated commerce were basically read into the Clause.[73] Holmes spoke of this in Lochner:

    I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood by the traditions of our people and our law.[74]

16. Of course, Holmes was presuming that people were not in agreement with laissez-faire, even though it was the dominant economic principle of commerce at the time! Nevertheless, Justice Holmes denounced such a use of the Due Process Clause, and he simultaneously triggered a revolution in jurisprudence that would later explode when the Justices under F.D.R. adopted it.[75]

17. The trend of dissenting opinions from Holmes continued throughout his tenure on the Court. In 1918, the Court heard Hammer v. Dagenhart,[76] which is also widely known as the "Child Labor Case."[77] The issue in Hammer was the review of a federal statute prohibiting transportation in interstate commerce of goods made in factories that employed children.[78] The majority determined that the law was invalid, in that its purpose was unduly regulatory with respect to manufacturing.[79] The Court viewed the statute as another attempt by Congress to overextend its commerce power and restrict free trade.[80] Of course, Congress took the position that it was designed only to protect children, which is a compelling interest of any government.[81] Justice Holmes sided with those that supported the statute for the benefit of children, and he wrote another of his famous dissenting opinions.[82] Holmes clearly expressed his position that the federal law in issue was well within Congress' power to enact.[83] He then, as he so often did, provided his personal opinion on the child labor aspect of the statute. "If there is any matter upon which civilized countries have agreed . . . it is the evil of premature and excessive child labor."[84] Holmes liked the subject matter of the law, and it appears that he supported it by announcing that it was within the power of Congress to take such action.[85] Yet, he is forever memorialized as liberal, progressive, and the father of judicial restraint. Many feel that Hammer belongs in the same category with Lochner as two of the worst decisions in Supreme Court history.[86] In pure retrospect, doesn't that tend to make Holmes an even bigger hero for speaking out?

18. Three years after Hammer, in Truax v. Corrigan,[87] the new Taft Court struck down an Arizona law preventing courts from issuing injunctions in most types of labor dispute cases.[88] The Court did not want to bar Arizona tribunals from providing some sort of remedy to those harmed economically by picketers standing outside their businesses, and other activities of that nature.[89] Taft and others felt that the power of organized labor needed to be checked every so often, so that its members would be discouraged from breaking the law and threatening violence to reach its ends.[90] Always looking at legislation from a slightly different vantage point, Justice Holmes dissented on the basis that the decision was crafted "to prevent the making of social experiments that an important part of the community desires."[91] That position sounds in free speech. Clearly, Holmes felt that the right to express one's ideas in public was more important than even the due process rights of an injured party absent an available remedy. He wasn't exactly jumping to defend the fundamental rights of the restaurant owners in Truax, but he stood up for the labor bosses by indicating that the great majority of our society felt the way he did.[92] It is as if he would always pad his positions by rhetorically asking how the Court could go against the wishes of the people. Perhaps Holmes would have been a prime candidate to defend President Clinton during the impeachment proceedings if he were alive!

19. The Taft Court continued its review of regulatory legislation in 1923 with Adkins v. Children's Hospital,[93] a minimum wage case. The Court held that requiring employers of adult women to satisfy minimum wage standards was an infringement of the Constitutionally protected right to freely contract.[94] The case was viewed as very extreme and placed a chilling effect on social legislation of the immediate future.[95] Again, Justice Holmes provided a sharp dissent, in which he reminded the Court that Congressional Acts may not always be wise in the eyes of the Justices, but it is not the role of the Court to invalidate them on that basis.[96] He felt that since legislators represent the wishes of the citizenry, as long as they are acting within their powers, they should not be questioned by the courts.[97]

20. In addition to Fourteenth Amendment due process interpretation, Justice Holmes help put First Amendment free speech on a path toward its current liberal construction.[98] The most famous example of this can be found in his Abrams v. United States[99] dissent. Compared to John Milton and John Stuart Mill, Holmes focused on the concept that truth can only be attained by the airing of all viewpoints in the intellectual marketplace.[100] In Abrams, the Supreme Court affirmed the convictions of people who had published anti-war leaflets.[101] Since the leaflets were designed to incite war effort resistance, the defendants were found guilty under the Espionage Act of 1917.[102] Holmes' dissent exposed his passion for the right to free speech housed in the Bill of Rights.[103] It also gave him an opportunity to establish his Clear and Present Danger Test,[104] which had been alluded to in a previous opinion.[105] That test holds that "speech may be restricted only if there is a real threat - a danger, both clear and present, that the speech will lead to an evil that the legislature has the power to prevent."[106] Holmes maintained that the publishing of harmless leaflets by an average citizen does not pose a clear and present danger to society.[107] It is, rather, an exercise in free opinion, which is protected by the First Amendment.[108] The interesting thing about his Abrams dissent is the fact that the Court was actually deferring to the majority that time, and Holmes still disagreed.[109] All of the sudden, judicial restraint was not the most important posture for the jurist. After all, it was not going to produce the ideal end result in Abrams. Thus, he did not defer to the majority in that case. It seems that he broke from tradition a bit, even though there have been many that have said Justice Holmes propelled this constant "jurisprudence" through to future Justices.[110]

21. Oliver Wendell Holmes, Jr. made a tremendous impact within the realm of Constitutional interpretation, and particularly that of the First and Fourteenth Amendments. He knew what he thought was right, and he used the dissenting opinion as a very powerful tool in disseminating those ideas. Often, during the laissez-faire era, that meant deferring to the majority legislation.[111] Sometimes, like in Abrams, it did not.[112] Yet, the legacy of Holmes became, and is to this day, one of strict judicial restraint jurisprudence.[113] People like Justice Felix Frankfurter looked back to the Holmes dissents for support and justification of their own deference to Congress.[114] Justice Frankfurter even referred to Holmes as his "Master" at times.[115] Legal scholars and authors have also joined in the creation of this legacy, and it has grown up over time.[116] Perhaps Frankfurter and Company have Holmes pinned down for all that he was, but it couldn't hurt to dig beneath the surface and explore the politics that may have led to the "tailoring" of Justice Holmes. Indeed, that is what this article has promised from the beginning.

    Conventional Legacy and a Realistic Alternative

22. Famous legal historian Bernard Schwartz has written of the Holmes legacy:

    [T]he Holmes doctrine of judicial restraint was the necessary legal foundation for the soon-to-emerge welfare state. The Holmes approach meant that the courts would uphold laws that coincided with changing views on the proper scope of governmental regulation. American judges were soon to follow Holmes when he rejected legal shiboleths that equated "the constitutional conception of 'liberty' . . . with theories of laissez-faire." They came to recognize that the rule of restraint was essential if the law was to enable the society to make the necessary transition from laissez faire to the welfare state.[117]

23. Such a conventional viewpoint leads one to sense that either Justice Holmes believed in deferring to the legislative bodies under all circumstances, or he actually possessed the foresight and intent to put his seal of approval on the restraint of the New Deal Court. Neither of these suggestions is true.

24. While it is correct to say that Justice Holmes did not believe in interfering with a legislative act unless it was clearly arbitrary and unreasonable,[118] he did not always defer to the majority, nor did he have any say regarding New Deal legislation. In fact, he had already retired from the bench at that point.[119] Furthermore, to the extent of this writer's knowledge, Holmes never actually announced that he was creating a new brand of jurisprudence and naming it "judicial restraint." Others that came later must have coined the term.

25. Arguably, the Holmes legacy was born during a period of Supreme Court philosophical transition in and around 1937.[120] The year 1937 is significant because up to that time the concept of laissez-faire reigned, and the Court frowned upon overly restrictive government regulation.[121] Franklin Delano Roosevelt had taken over the office of the President of the United States in 1933, and his plan was clear. He wanted to join forces with Congress and churn out many forms of social legislation under his revolutionary New Deal concept.[122] Soon thereafter, he began to realize that a largely conservative Supreme Court would overturn his regulatory restrictions on free trade in a heartbeat.[123] This was due, in large part, to the traditional-thinking Justices Van Devanter, McReynolds, Sutherland, and Butler, otherwise known as the "Four Horsemen."[124] Their votes invalidated New Deal legislation in 1935 and 1936.[125] In response, F.D.R. introduced his "court-packing plan," where he coercively threatened to appoint six additional liberal Justices if he needed to.[126] Finally, in the 1937 cases West Coast Hotel Co. v. Parrish[127] and National Labor Relations Board v. Jones & Laughlin Steel Corp.,[128] the Court began a new era of deference to the majority.[129] All of the subsequent New Deal law was upheld,[130] and the Court has never been the same.

26. Felix Frankfurter and other liberal-minded New Deal Justices knew that they needed solid justification for taking such a controversial "hands-off" approach to post-1937 legislation.[131] Who could make a better figure-head than Oliver Wendell Holmes? These Justices interpreted Holmes' opinions and The Common Law to indicate that he was fundamentally liberal and stood by judicial restraint at all times.[132] They reached back to rely on Holmes, but they were, at least in part, wrong about him. Yes, he did promote restraint in his dissenting opinions when it coincided with a desirable result, and he denounced the use of the Due Process Clause to overturn legislation in some cases. However, Holmes was far from liberal and used restraint inconsistently. The Abrams case is a prime example of his inconsistency,[133] and as one writer noted:

    Holmes was, if anything, affirmatively hostile in his opinions toward the civil rights of ethnic minorities. His reputation as a great liberal judge followed from a "systematic campaign of publicity" conducted in the 1910s and '20s by Felix Frankfurter, Harold Laski, and other young Progressives who saw in Holmes what they wished to see and who, in the process, misrepresented his philosophy.[134]

27. In other words, Holmes' persona was exploited and re-defined after he left the bench. Interestingly enough, he never openly corrected the Justices on their distortion of his views.[135]

28. On a final point of analysis, it might be helpful to compare the Holmesian posture and post-1937 America with laissez-faire and the pre-1937 era. Bernard Schwartz points out that "commerce subject to federal regulatory power fitted in perfectly with the laissez-faire theory of governmental function that dominated political and economic thinking at the time."[136] That may very well be true, but how is it different from saying that the Holmesian posture is accepted now because of the welfare-state economic concepts adopted since the New Deal? Is that not the same thing as positing that the Court ruled the way it did before 1937 due to the dominant laissez-faire economics of that particular era? As a matter of fact, the "dissent" has now flipped to Judge Posner's mathematical law and economics jurisprudence.[137] The upshot is that jurisprudence follows societal norms. Holmes may have disagreed with majority opinion on a case-by-case basis, but he was not the Progressive that his legacy has "tailored" him to be. What he had said in the past was conveniently applied in the New Deal Court and beyond,[138] but his immortal patriarchy of judicial restraint jurisprudence was neither foreseen nor deserved.

    Conclusion

29. The name Oliver Wendell Holmes, Jr. is almost synonymous with United States Supreme Court greatness. It is as if his influence on Constitutional interpretation and jurisprudence had a grip on the steering wheel of the Court. Yet, it seems that he did what he thought was right in a given situation, rather than trying to overthrow the Court, as is sometimes all but suggested. President Roosevelt and the New Deal Court took care of that after Holmes had retired.[139] They reached back for Holmes to create a convenient justification.[140] They "tailored" Holmes for their purposes. Nevertheless, even as Justice Holmes' legacy has been misconstrued, it has left a heritage of great impact on our American law.