Saturday, May 16, 2009

Oliver Wendell Holmes, Supreme Court Justice

I had intended to post a short biography of Oliver Wendell Holmes (1841-1935), whose name inevitably pops up when Supreme Court justices are being discussed. He’s widely regarded as one of the greatest Supreme Court justices, and he served one of the longest terms (1902-1932). I found, however, that I couldn't stomach the man enough to spend time writing about him. You'll probably do better listening to Thomas Bowden's lecture on him. I did collect some interesting quotes that aren’t easily accessible on the Net, and that I think are worth sharing before I ditch my notes.

Holmes’s earliest claim to fame was The Common Law, published in 1881 and enormously influential. In it, he proposed a new way of looking at law. This excerpt from the first page of the first chapter is very explicit about Holmes’s belief that there is no such thing as law based on principles.

The object of this book is to present a general view of the Common Law. To accomplish the task, other tools are needed besides logic. It is something to show that the consistency of a system requires a particular result, but it is not all. 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. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In order to know what it is, we must know what it has been, and what it tends to become.

We must alternately consult history and existing theories of legislation. But the most difficult labor will be to understand the combination of the two into new products at every stage. The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient; but its form and machinery, and the degree to which it is able to work out desired results, depend very much upon its past.” (Emphasis added; from the Project Gutenberg edition)

Those familiar with the philosophy of Pragmatism will recognize here its basic premises: that there are no fixed standards of truth, and what’s right is what works at any given time. I was surprised to read that Holmes’s instrumental definition of law (i.e., that law is that which courts do) was already apparent in an article Holmes published in 1870. That would make it precede by a year or two Holmes's participation in the Metaphysical Club, where C.S. Peirce and William James are generally considered to have founded Pragmatism (see Novick, Honorable Justice p. 426, n. 4). Whatever the sequence, Holmes’s premises were certainly consistent with Pragmatism by the time The Common Law was published.

And they remained consistent with it. In Gompers v. United States (1914), writing as a Supreme Court justice, Holmes again stated that laws change depending on their time and context:

The provisions of the Constitution are not mathematical formulas … they are organic living institutions transplanted from English soil. Their significance is vital, nor formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth. (quoted in Novick, ANB)

What if the laws are badly written or wrongly interpreted? Here Holmes’s comment to a fellow lawyer, John W. Davis, on the Sherman Antitrust Act:

Of course I know and every other sensible man knows, that the Sherman law is damned nonsense, but if my country wants to go to hell, I am here to help it. (quoted in Abraham, p. 160)

And, finally, here’s an excerpt from Holmes’s speech “The Soldier’s Faith,” given to Harvard’s graduating class in 1895. Theodore Roosevelt reportedly exclaimed, “By Jove, that speech of Holmes’s was fine,” and Roosevelt’s memory of it was apparently a factor in his decision to nominate Holmes for the Supreme Court in 1902. (See Novick, Honorable Justice p. 206.)

I’m happy to say that every soldier I’ve known would reject this view with furious indignation.

Behind every scheme to make the world over, lies the question, What kind of world do you want? The ideals of the past for men have been drawn from war, as those for women have been drawn from motherhood. For all our prophecies, I doubt if we are ready to give up our inheritance. … [W]ho of us could endure a world, although cut up into five-acre lots, and having no man upon it who was not well fed and well housed, without the divine folly of honor, without the senseless passion for knowledge outreaching the flaming bounds of the possible, without ideals the essence of which is that they can never be achieved? I do not know what is true. I do not know the meaning of the universe. But in the midst of doubt, in the collapse of creeds, there is one thing I do not doubt, that no man who lives in the same world with most of us can doubt, and that is that the faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has little notion, under tactics of which he does not see the use.


Suggested Readings by Ayn Rand and Objectivist Scholars

  • Rand, Ayn. Objectively Speaking: Ayn Rand Interviewed, ed. Marlene Podritske and Peter Schwartz. Lanham, MD: Lexington Books, 2008. See especially pp. 56-57 (on the Supreme Court) and Chs. 9-10, on the American Constitution and on objective law.
  • Bowden, Thomas. “Oliver Wendell Holmes, Destroyer of American Law.” Available from the Ayn Rand Bookstore.
  • On Pragmatism, see “Pragmatism” in The Ayn Rand Lexicon (ed. Harry Binswanger) and Tara Smith, “The Menace of Pragmatism,” in The Objective Standard 3:3 (Fall 2008).
  • See also the references cited for Wanted: Supreme Court Justice.


Sources Consulted

  • Abraham, Henry J. Justices and Presidents. A Political History of Appointments to the Supreme Court. 3rd. ed. New York: Oxford University Press, 1992.
  • Novick, Sheldon M. Honorable Justice: The Life of Oliver Wendell Holmes. 1989.
  • Novick, Sheldon M. "Holmes, Oliver Wendell";; American National Biography Online Feb. 2000. Access Date: Mon May 04 2009 10:27:59 GMT-0400 (Eastern Daylight Time)


  1. Holmes, along with J. S. Mill, was a card carrying Benthamite. If you want to go to the root of it, look into Jeremy Bentham. I would be interested to hear what you think of him.

  2. Truly horrifying! I don't often gasp aloud when reading, but a couple of the Holmes quotes caused me to. I can't stomach him either!

  3. If you've talked with or seen interviews with young enlisted soldiers on active duty today, you must have noticed that they tend not to recognise that they are blindly accepting duty, in causes which they little understand, in plans of campaign of which they have little notion, under tactics of which they do not see the use. Today's military tends to give a coherent account of itself to its inductees, and the young and idealistic or young and undereducated among the inductees tend to accept, learn and sincerely repeat what they are taught. this is the "adorable" faith of which Holmes speaks.

    This faith is only poignant and adorable to Holmes, and to us as well, because unlike our earnest young soldiers, we certainly understand that the duty they accept, in causes concocted to obscure actual ends, in plans of campaign of which only a secretive few have clear information, and under tactics which are indeed useless except in bringing our enemies and ourselves to grief, that these duties are worthy neither of our young soldiers' faith, nor of their sacrifices.

  4. I sympathize with your revulsion.

    I've read far more of Dewey and his ilk than I would have in a saner world - ditto Islamism - and Holmes is clearly in that group. But exposing the twin evils of Progressivism and Pragmatism has a certain therapeutic effect that comes from truly understanding what one is up against.

    I find it helpful to have a fuller understanding of history and particulars when I argue for reason and capitalism.

    But, none of that is at all intended as criticism, just explanation. It does take a strong 'stomach' and sometimes the odor can be just too much to bear.

    Fortunately, the intellectual tide appears to be turning against the Progressives - without lapsing into the dominant false alternative one hopes - making the effort somewhat worthwhile.

    Jeff Perren
    Shaving Leviathan