Oliver Wendell Holmes Jr. can seem politically enigmatic in part because he was a jurist, not a legislator. He was no conservative, but he was no progressive, either. Misconstruing and mislabeling him only leads to the confusion and discrediting of certain views that conservatives and libertarians alike seriously ought to consider. One must not mistakenly assume that because Lochner-era Fourteenth Amendment due process jurisprudence favored business interests, Holmes stood against business interests when he rejected New York’s Fourteenth Amendment due process defense. (I have avoided the anachronistic term “substantive due process,” which gained currency decades after Lochner.)
Holmes resisted sprawling interpretations of words and principles—even if his hermeneutics brought about consequences he did not like—and he was open about his willingness to decide cases against his own interests. As he wrote to his cousin John T. Morse, “It has given me great pleasure to sustain the Constitutionality of laws that I believe to be as bad as possible, because I thereby helped to mark the difference between what I would forbid and what the Constitution permits.”
All labels for Holmes miss the mark. Holmes defies categorization, which can be a lazy way of affixing a name to something in order to avoid considering the complexity and nuances, and even contradictions, inherent in that something. “Only the shallow,” said Justice Felix Frankfurter, “would attempt to put Mr. Justice Holmes in the shallow pigeonholes of classification.”
Holmes was not conservative but more like a pragmatist in the judicial sense. His position on judging is analogous to William James’s suggestion that a person is entitled to believe what he wants so long as the practice of his religious belief is verifiable in experience and does not infringe upon the opportunity of others to exercise their own legitimate religious practices. James exposited the idea of a “pluralistic world,” which he envisioned to be, in his words, “more like a federal republic than like an empire or a kingdom.” Holmes likewise contemplated the notion of a federal republic in his majority opinions and dissents.
The above text is adapted from an excerpt of my essay “Justice Holmes and Conservatism,” published in The Texas Review of Law & Politics, Vol. 17 (2013). To view the full essay, you may download it here at SSRN or visit the website of The Texas Review of Law & Politics.
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I would argue that he had significant leanings in a “progressive” direction when it came to issues like eugenics. eg. “Buck v. Bell, where he clearly violated his own commentary regarding certainty of opinion, ““When you know that you know, persecution comes easy.” How then could he have subjected a woman to such a fate, who was raped, then deleted from society by her adopted family, on the word of a single doctor. I understand that the supreme court looks at cases as they are brought before them, but where was his doubt and his concern that there might just be other motivations.
To open such a Pandora’s box on such little evidence should have set off his doubt alarms. Instead he stated unequivocally that, “It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Jacobson v. Massachusetts, 197 U. S. 11. Three generations of imbeciles are enough.”
This man may have had his moments, but he should not be viewed as a hero of the Constitution, or the protector of individual rights (lest we forget, that is where the bulk of power is supposed to lay), as he espoused the very popular view (among certain groups) of the usefulness and rightness of eugenics, and the execution of individuals, before birth, for crimes they might commit.