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Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint
Cambridge University Press
978-0-521-86650-7 - Oliver Wendell Holmes, Jr., legal theory, and judicial restraint - by Frederic R. Kellogg
A Time for Law
It cannot be helped, it is as it should be, that the law is behind the times. As law embodies beliefs that have translated themselves into action, while there still is doubt, while opposite convictions still keep a battle front against each other, the time for law has not come; the notion destined to prevail is not yet entitled to the field. It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong.
Justice Oliver Wendell Holmes, 19131
I begin this exploration with a comment by Justice Holmes at seventy-one, speaking to the Bar Association of the City of New York. He is discussing the role of timing in judicial decisions, timing indeed in constitutional law. Holmes is alone as a legal theorist in focusing so heavily on it – on the notion of readiness or unreadiness, of a social context within which legal and constitutional rulings are made. But consider: what ofcourt intervention in public school segregration, in prosecutorial fairness and police coercion of confessions, disparate state laws against abortion, affirmative action in employment discrimination, the constitutionality of laws barring same-sex marriage, the juvenile death penalty? Has not the context and timing of judicial rulings in these matters, for good or ill, been a large measure of their apparent justification – or lack thereof ?
Separation of the races could hardly seem unconstitutional to a mostly white America in 1896, when it was upheld in Plessy v. Ferguson.2 Integrating the public schools would have been unthinkable then, but in 1954? After passage of the Civil Rights Act of 1964, judicial orders decreeing affirmative action in employment were common, after findings of race discrimination. Leading universities soon took affirmative steps to increase the enrollment of minority students. Such programs came under attack for reverse discrimination. In 2002, after wrestling with this question (and with itself) for two generations, the Supreme Court upheld a carefully tailored University of Michigan affirmative action plan in Grutter v. Bollinger,3 but set a time limit for constitutionality of twenty-five years, after which, presumably, affirmative action is due to become unconstitutional.
What is involved here? As the constitutional scholar Paul A. Freund repeatedly asked, should the Court serve as the “conscience of the country”?4 The very idea of a moving national conscience is murky and uncertain. In his 1969 Oliver Wendell Holmes Lectures, Alexander Bickel thoroughly deflated the notion that the court could associate its rulings with an inexorable “progress.”5 Conservatives irk any liberal crowd with their caricatures of a “living constitution.” As history reveals, the Court can get carried too far. In abortion, there was no uniform drift of national consensus to support a wholesale removal of traditional state jurisdiction in Roe v. Wade.6 The Court’s actions under the Constitution are final, save a curative amendment, and they short-circuit more natural movements of national conscience, they close off further civil debate, leaving room only for vitriol. When the Massachusetts Supreme Court found a constitutional right to same-sex marriage, it affected the politics of the 2004 national elections.
The recent case of Roper v. Simmons illustrates the problem. There the Court held by a slim 5–4 majority that capital punishment was unconstitutionally “cruel and unusual” when applied to juveniles (having upheld it only sixteen years before). The Roper decision was guided in part by the fact that a growing number of states that authorize capital punishment (although not yet a majority) now outlaw it for juveniles. It was guided also by the observation that juvenile executions are banned in an overwhelming majority of foreign countries. This reasoning inflamed the conservative dissenters. Wrote Justice Antonin Scalia, “The court thus proclaims itself the sole arbiter of our nation’s moral standards – and in the course of discharging that awesome responsibility purports to take guidance from the views of foreign courts and legislatures.”7
There are searching questions raised by Holmes’s observation. Is the division on the current Court to be explained by the line he draws in warning that the Court should stay “behind the times”? What is the role of popular consensus in legal interpretation? A student curious about such questions would seek with difficulty any satisfactory explanation in the university library under “theories of law.”8 Perhaps more elucidation might be found under the catalogue of “politics,” not reassuring to anyone who imagines that unchanging “principles” govern the Bill of Rights. Still, as Holmes said in 1913, battles before the Court generally rage among and between opposing principles (is there any such thing as a “neutral” principle?). The cases that work their way up through the courts are the most difficult, not the most obvious. Stubborn controversies can prove relentless in finding a way, through experienced counsel, to entail the jurisdiction of the U.S. Constitution.9
How then did Holmes, at seventy-one, come to explain the plight of his court, besieged by criticism for having overturned much (though by no means all) state regulatory legislation for over a decade, as a misreading not of principle but of timing? Holmes had the reputation then, as now, of a deep but dimly visible foundation beneath his fluent utterances. The invisibility of the ostensible ground beneath his frequently skeptical remarks has left his skepticism open to characterization as cynicism.10 This impression is buttressed by a lifelong tendency to glorify struggle, in a way that often seemed “childish” to his friend William James.11 The role of conflict is easily oversimplified in interpretations of Holmes; though he had a personal side, and experiences as a soldier, to reinforce the impression, a cynical deference to power has on careful examination almost nothing to do with his judicial philosophy.
My purpose is to explore the background to Holmes’s 1913 comment, to focus on its derivation in Holmes’s development as a scholar and theorist, and to consider its intellectual contours, how it fits into a theory of law and compares with other leading theories – both historically and in a contemporary context, especially as regards the leading theories of this past century, those expounded by H. L. A. Hart, Joseph Raz, Ronald Dworkin, and their contemporary critics and followers.
First I note a connection between Holmes’s 1913 comment and three writers and jurists whose thoughts and lives overlapped with his: James Bradley Thayer, lawyer, scholar, and Harvard law professor through whom the younger Holmes gained editorship of Kent’s Commentaries on American Law, a move that would profoundly affect his thinking; Felix Frankfurter, the Harvard law professor who supplied Justice Holmes with his personal secretaries and later became a Supreme Court Justice himself; and Learned Hand, by all accounts “the greatest judge never appointed to the Supreme Court,” who venerated Holmes and seems to have influenced his attitude toward free speech in time of war.12
Characterizing the spirit of judicial restraint, Thayer would write in 1893: “The safe and permanent road towards reform is that of impressing upon our people a far stronger sense than they have of the great range of possible harm and evil that our system leaves open, and must leave open, to the legislatures, and the clear limits of judicial power; so that responsibility may be brought sharply home where it belongs.” This runs counter to the common acceptance of final judicial interpretations of the Constitution. There is a renewed concern among legal scholars that the public, in our litigious society, is being left out of the shaping of constitutional law and hence of our most fundamental rights. Mark Tushnet, in his book Taking the Constitution Away from the Courts (1999), and Larry D. Kramer, in The People Themselves: Popular Constitutionalism and Judicial Review (2004), have lately brought this concern back to the forefront.13
The sentiment, or one very like it, goes back to Thayer (1901):
[T]here has developed a vast and growing increase of judicial interference with legislation. This is a very different state of things from what our fathers contemplated, a century or more ago, in framing the new system....Great, and indeed, inestimable as are the advantages in a popular government of this conservative influence, – the power of the judiciary to disregard unconstitutional legislation, it should be remembered that the exercise of it, even when unavoidable, is always attended with a serious evil, namely, that the correction of legislative mistakes comes from the outside, and the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors.14
Citing this passage in a dissenting opinion, the famous 1943 flag salute case, Felix Frankfurter at the height of World War II opposed the court majority in its decision to reinstate a young Jehovah’s Witness expelled from school for refusing on religious grounds to participate in the Pledge of Allegiance. “The reason why from the beginning even the narrow judicial authority to nullify legislation has been viewed with a jealous eye is that it serves to prevent the full play of the democratic process.” We can imagine the outcry if the current Court were to stay its hand in such a case.15
Even more extreme, consider Learned Hand, who in the Oliver Wendell Holmes Lectures at Harvard in 1958 (funded by the Holmes Devise, created after the childless Holmes willed the balance of his estate to the federal government), caused an academic uproar by denouncing the Bill of Rights as grounds for overturning legislation, likening such Supreme Court jurisdiction to the ordination of a council of moral censors: “For myself it would be most irksome to be ruled by a bevy of Platonic Guardians, even if I knew how to choose them, which I most assuredly do not. If they were in charge, I should miss the stimulus of living in a society where I have, at least theoretically, some part in the direction of public affairs.”16
Insofar as there is a connection with Holmes, the notion of timing in judicial self-restraint is connected with the preservation of democratic debate, of the popular grounding of democratic institutions. What do we know about this reason, and what are its contours? How may it be understood as a consistent, coherent theory of law – if a theory of law at all? The popular constraint on judges is the claim of a dominant text, illuminated only by its putative “original understanding.” But we are in a skeptical moment just now; textualism as a judicial guide to final constitutional meaning cuts both ways, and can result no less in the exercise of a constitutional litmus test.
The two competing notions, that of an authoritative law that always contains the right answer, and that of a law of timing, of consensus, are radically opposed. The notion of a judicial system that somewhere holds a right or better answer for every legal question is found in Ronald Dworkin’s Taking Rights Seriously, where if necessary the judge must turn to principles and rights. Here we encounter Holmes’s second point above: “It is a misfortune if a judge reads his conscious or unconscious sympathy with one side or the other prematurely into the law, and forgets that what seem to him to be first principles are believed by half his fellow men to be wrong.”17
What guidance can Holmes give us? Perhaps his notion here, though sounding conservative, may hide a licentious set of assumptions – that there is no legal answer, that the justices simply hoist their fingers to the wind. They sit down to assess the state of the national conscience, whatever that means, and decide whether the time is right to implement the enduring principles of the United States Constitution as they see them.
This book addresses a threefold subject: the intricate intellectual path of Justice Holmes, his relation to contemporary legal theory, and the controversial subject of judicial restraint. Oliver Wendell Holmes, Jr., was the rare son who could eclipse a famous and dominant father, an acutely ambitious workaholic without children, a prodigious scholar who mastered in his time the history, theory, and practice of American law (a feat perhaps never again to be matched), judge for fifty years on the highest courts of Massachusetts and the United States. He has cast a long shadow upon the judges and scholars of our time – over a century now since he took a seat at sixty-one on the highest court of the land. Yet Holmes scholarship has been disorderly, even schizophrenic. His influence is undoubted, but its source ill-understood, giving rise to cycles of severe criticism. We are in one now.
Much of this criticism is responsible and illuminating. Once an icon, Holmes has been humanized. Where it falls short is in understanding the sources and development of his thinking. Confusion is understandable, given his unusual path and the subtlety of the original position, established early in his career. Before trying to characterize it, and where it might enlighten us, I give an example that demonstrates both the problem of understanding Holmes and its potential.
Two eminent scholars, Louis Kaplow and Steven Shavell, have recently published a controversial book about law entitled Fairness versus Welfare (2002), addressing a fundamental question about law. To what degree should we consider the impact on general welfare, as opposed to notions of fairness, in deciding legal matters? The authors take an extreme position against the advocates of fairness; they claim, and attempt to demonstrate, that any policy pursued on grounds other than social welfare – including fairness among the parties in the case – may end up making everyone worse off.18
Holmes, as many scholars have noted, often sounded a similar view in such comments as “I think that the judges themselves have failed adequately to recognize their duty of weighing considerations of social advantage” and “Moral predilections must not be allowed to influence our minds in settling legal distinctions.”19 Such comments sounded radical in their day and have maintained a ring of contemporary relevance. Did Holmes adopt a position similar to Kaplow and Shavell, as has often been suggested? That would be inconsistent with the distinctive position that is captured in his 1913 speech. The law is behind the times; while convictions still clash, they are not to be preferred; judges should avoid reading their own convictions into the law. There is such a thing as “a time for law.”
While these three comments, from widely separated decades, may at first seem incongruous, there are hints of consistency. It is not morals or fairness per se that Holmes eschews in 1881, writing his major treatise The Common Law. It is moral predilections. The notion of deep uncertainty, of a process akin to a search, is embedded in his thinking about law. A search for what? Where does this idea come from, and what is it like? Nor indeed is it social advantage, or perhaps I should say the matrices of economic advantage or disadvantage presumed discoverable by Kaplow and Shavell, that he advocates in 1897 (in “The Path of the Law,” his best-known essay). Rather, it is a recognition that he urges, a form of honesty: the judges “have failed adequately to recognize” their involvement in this aspect of the search, however murky the waters. There are inklings here of a complex venture, with hidden perils lurking to shipwreck the unready, rather than a socio-economic calculus.
Judicial restraint – a phrase hardly common in Holmes’s time – is in his case associated with a theory of the law as a process of critical inquiry, a dynamic rather than static enterprise, but one involving a high degree of caution, of perspective, of learning. Holmes as a judge was not always a paragon of such restraint. He had a powerful mind and a sophisticated set of views – indeed a theory of history – that he sought constantly to bully past his colleagues on the Supreme Judicial Court of Massachusetts and write into the law. In 1902 he would arrive on a Supreme Court of the United States that was embroiled in controversy not unlike our own, over judicial invocation of the due process clause of the Constitution20 to invalidate state social welfare legislation. Here his fame would be made in several ringing dissents, although his actual record is not as pure as the dissents might suggest; he did not resist all, or even most, substantive interventions under the due process clause.
The search for what lies beneath this unique vision of judicial restraint, unlike anything that can be found among the writings of judges or scholars today, takes us back to the earlier days of intensive study and conversation following Holmes’s return to Cambridge and Boston from the Union Army in 1863. I will connect him more clearly with the influences of this period, from both New England and abroad, establishing how his legal conception developed and how it might fit into a larger picture that is usefully comprehensible today.
The slogan “popular constitutionalism” has emerged in the recent writings of certain legal scholars. I already mentioned Tushnet and Kramer, reacting to the fact that virtually all contemporary debate over judicial review of legislation, liberal or conservative, accepts the assumption of judicial supremacy, or more precisely judicial “determinism.” That is, the context of all contemporary argument over judicial activism versus restraint is one in which no real alternative exists to the courts finally deciding, one way or the other, under one sweeping constitutional principle or another, the outcome of controversies affecting fundamental values. Hence the battle comes down to membership on the courts themselves. This has led some liberals to advocate what used to be conservative political tools for controlling federal court nominations, lest they become vested with politically approved nominees, such as congressional filibusters of controversial nominations or stripping the federal courts of controversial areas of jurisdiction.
There is revelation here – the notion that judicial determinism is embedded and will not yield easily to argument – but it is not enough revelation to work a revolution. Whether such political measures would be effective is not within my purview – but rather the question of whether there is any alternative comprehensive context within which judicial determinism is not accepted unquestioningly, indeed one in which it is convincingly overthrown. A revolution might then begin with new understanding and belief, leading to a new standard for both public and professional conduct.
Connections and Misconceptions
What intellectual fun all of this is! It explains why first-year law school is so exhilarating, because it consists of playing common-law judge, which in turn consists of playing king – devising, out of the brilliance of one’s own mind, those laws that ought to govern mankind. How exciting! And no wonder so many law students, having drunk at this intoxicating well, aspire for the rest of their lives to be judges.
Supreme Court Justice Antonin Scalia, A Matter of Interpretation (1997)
On a December day in 1882, Oliver Wendell Holmes, Jr., at forty-one, was at lunch in Cambridge, Massachusetts, with a colleague on the faculty of Harvard Law School. He had recently published a book, The Common Law. It was the culmination of fifteen years of effort, including numerous scholarly essays and a grueling revision of the leading American legal encyclopedia, Kent’s Commentaries on American Law. His scholarship had been mixed with work as a private lawyer, half of them bachelor years of evening and weekend conversation with friends such as the James brothers, William and Henry, and a long visit to England in 1866. His wedding to Fanny Dixwell in June 1872 was curtly noted along with new editorial responsibilities in a diary devoted mainly to his reading and writing. (“June 17. Married[.] sole editor of Law Rev. July no. et seq.”).
The book had gained the serious attention Holmes longed for. It had received highly respectful reviews by American journals, albeit traced with caution. A favorable review by the British legal historian Frederick Pollock, whom he had met on a visit to England with Fanny in 1874, as well as a strong but conditional endorsement by the prominent English legal scholar Albert Venn Dicey, would soon appear. Unhappy with private practice in Boston, already unsuccessful in obtaining a judicial appointment, he had accepted a professorship endowed on his behalf by the Weld family at the behest of James B. Thayer. To Thayer’s considerable distress, Holmes would teach for only two months.1
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