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"; http://0-www.anb.org.library.nysoclib.org:80/articles/11/11-00423.html; American National Biography Online Feb. 2000. Access Date: Mon May 04 2009 10:27:59 GMT-0400 (Eastern Daylight Time)
  

A Government Not of Laws, But of Empathy

For the upcoming vacancy on the Supreme Court, President Obama has announced that he will seek “somebody with a sharp and independent mind and a record of excellence and integrity.” But he also wants his nominee to be

someone who understands that justice isn't about some abstract legal theory or a footnote in a casebook; it is also about how our laws affect the daily realities of people's lives, whether they can make a living and care for their families, whether they feel safe in their homes and welcome in their own nation. I view that quality of empathy, of understanding and identifying with people's hopes and struggles, as an essential ingredient for arriving at just decisions and outcomes. [emphasis added]

This is not a surprise: in The Audacity of Hope, Obama said that the capacity to understand others is “at the heart of my moral code.”

Obama cited as an example of a Supreme Court case where empathy would have been appropriate Ledbetter v. Goodyear, a wage-discrimination case. In 2007, the Supreme Court reversed a lower court’s ruling in favor of Ledbetter because she filed her suit after the statute of limitations had expired.

I failed to think immediately of a pithy but scathing comment on this, and Sal disapproves of me gnashing my teeth for too long. So I sent the idea of empathy as a requirement for a Supreme Court justice down to my subconscious to percolate. (Thank you, Jean.) And presently my subconscious said: What happened to a "government of laws, not men"? Isn't that in the Constitution?

In fact, it's not. John Adams, the second president of the United States, seems to have been the first American to advocate “a government of laws, not of men.” Adams rose to national prominence and became one of the most influential Founding Fathers because he was thoroughly versed in the history of law and was able to explain clearly how a proper government ought to function. His summary of his thoughts on this matter, Thoughts on Government, Applicable to the Present State of the American Colonies, was written in May 1776 at the request of his fellow delegates to the Continental Congress.

[Recent happenings] will convince any candid mind, that there is no good government but what is republican. That the only valuable part of the British constitution is so; because the very definition of a republic is “an empire of laws, and not of men.” That, as a republic is the best of governments, so that particular arrangement of the powers of society, or, in other words, that form of government which is best contrived to secure an impartial and exact execution of the laws, is the best of republics.

In Thoughts on Government, Adams set out a plan for a separation of powers, including an executive branch, a bicameral legislature, and an independent judiciary. Of the judiciary, he wrote:

The dignity and stability of government in all its branches, the morals of the people, and every blessing of society depend so much upon an upright and skilful administration of justice, that the judicial power ought to be distinct from both the legislative and executive, and independent upon both, that so it may be a check upon both, as both should be checks upon that. The judges, therefore, should be always men of learning and experience in the laws, of exemplary morals, great patience, calmness, coolness, and attention. Their minds should not be distracted with jarring interests; they should not be dependent upon any man, or body of men. To these ends, they should hold estates for life in their offices; or, in other words, their commissions should be during good behavior, and their salaries ascertained and established by law.

Many of the earliest state constitutions show the influence of Adams’s Thoughts on Government. The Massachusetts Constitution (1780), for example, established a balance of powers in which the executive and legislative powers were required to keep strictly to their own domains, and “the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.”

The United States Constitution, drafted in 1787, echoes Adams’s Thoughts regarding the tenure of justices:

The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour, and shall, at stated Times, receive for their Services, a Compensation, which shall not be diminished during their Continuance in Office. (Article III, section 1)

The Constitution sets out no qualifications for justices of the Supreme Court, and only one requirement. According to Article VI, Clause 3:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution.

This brings us back to Obama’s possible nominees, and whether empathy is a necessary or desirable trait in a Supreme Court justice.

What would showing empathy mean, for a Supreme Court justice? It would mean that he could rule according to his emotions, if he thought the law was harming someone who deserved better. It would mean that he could hold his emotions above the Constitution that he had sworn to uphold. It would mean that at his whim, he could overturn even a clearly written law that conformed with the Constitution in every respect.

In his professional role, a justice should be passionate about the Constitution he is sworn to uphold. But with respect to the particular people who come before him, he should be heartless. His feelings about them are not a proper standard of judgment. If we allow kindness a foothold, we also allow malice. If we allow either one, we have a government not of laws, but of men, and (as John Adams would surely have recognized) it does not matter whether the man is a king, a tyrant, or a judge.

If a person goes about his life and business on the assumption that by obeying the law, he will have the protection of the courts – then if a dispute arises, he must have his day in court, and a judge must decide if he is in the right, in strict accordance with the law.

The only alternative in a rational society is for parties who have a working arrangement to agree to binding arbitration in case of disputes. In that case, disputes are settled by an impartial outsider who may or may not act in strict accordance with the law. From arbiter, the Latin name for this impartial outsider, English derives the word “arbitrary,” which has come to mean random, capricious, or erratic. A Supreme Court judge who acted on empathy rather than strictly upholding the law would be acting arbitrarily. In doing so, he would make long-range planning of one’s personal or business life impossible. One would never know what action might be declared illegal, simply because a judge felt sorry for the person on the other side of the dispute.

President Obama lectured on constitutional law at the University of Chicago for eleven years. He has no excuse for not knowing that a judge who acts on empathy is violating the principles he swore to uphold.

 

Recommended Readings from 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.
  
• See also the recommended readings for Wanted: Supreme Court Justice.
  

 Sources Consulted

• Adams, John. Novanglus, or, A History of the Dispute with America, From Its Origin, in 1754, to the Present Time. 1774: with a survey of the rule of law since ancient times (search “government of laws”).
  
• Adams, John. Thoughts on Government, Applicable to the Present State of the American Colonies. 1776.
  
• Wikipedia, “Rule of Law.” (Much of the historical section simply repeats Adams’s works.)
  
• Kantor, Jodi. “As a Professor, Obama Held Pragmatic Views on Court.” New York Times, 5/3/2009.
  

 

WANTED: Supreme Court Justice

Thank you for applying to become a member of the Supreme Court of the United States. If you've made it this far in the selection process, you have a record of personal integrity and professional competence. However, since this is a crucial leadership position and we expect you to be holding it for the rest of your life, we'd like to know more about your convictions and your philosophy. If we like what we hear, we'll call you to Washington for an interview.

1. What rights, privileges, or freedoms do American citizens have that you would want to protect in your Supreme Court rulings? The rights listed in the Bill of Rights? Those in Franklin D. Roosevelt's Four Freedoms speech? Those in the United Nations Declaration of Human Rights? Please elaborate by citing your rulings on such matters as free speech / censorship, property rights / eminent domain, abortion, and the Second and Ninth Amendments.

2. Are these rights, privileges, and/or freedoms immutable?  Tell us where you think they come from and what would make it acceptable for Congress or the Supreme Court to override them.

3. What is your belief about the nature of the Constitution? Is it an ever-evolving document whose interpretation should be based on the will of the people? Is it to be interpreted strictly according to the perceived intention of the Founding Fathers? Is it based on timeless principles that ought to be understood and applied to the present, or is it a historic document whose outmoded ideas need to be revamped as time goes by?

Bonus question: Oliver Wendell Holmes was one of America's most influential Supreme Court justices. Tell us what you think of the opinions he wrote for the Court.

Suggested readings by Objectivist scholars

Tara Smith, "The Need for an Active Supreme Court Justice." Op-ed.

Tara Smith, "How 'Activist' Should Judges Be?" (CD of a lecture), available at the Ayn Rand Bookstore

Thomas Bowden, "Supreme Disappointments." Op-ed.

Thomas Bowden, "Supreme Court Should Uphold Rights, Not Majority Sentiment in Ten Commandments Case." Op-ed.

Thomas Bowden, "Oliver Wendell Holmes" (CD of a lecture), available at the Ayn Rand Bookstore.