[Chronicle]

March 15, 2001
Vol. 20 No. 12

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    Law professor reveals another side to Oliver Wendell Holmes Jr. in new book on former Supreme Court Justice

    Peter Schuler
    News Office

    In his new book, Law Without Values: The Life, Work, and Legacy of Justice Holmes (University Press), Albert Alschuler, the Wilson-Dickinson Professor in the Law School, offers a fresh and controversial view of the legendary Supreme Court Justice Oliver Wendell Holmes Jr., who served on the high court from 1902 to 1932. Alschuler, one of the preeminent criminal law scholars in the United States, takes issue with the prevailing view of Holmes as a wise and benevolent giant of American jurisprudence. Alschuler grants Holmes’ extraordinary influence but argues that his legacy was mostly pernicious.

    Albert Alschuler

    What was the genesis of your negative view of Holmes?

    When Provost Geoff Stone was Dean of the Law School he encouraged me to develop a course on 20th-century American legal theory. The more I looked into Holmes’ work and his influence on later American thinkers, the more I became convinced that his impact on law was unfortunate. There have been many recent studies of Holmes, nearly all of them adulatory. Law students are taught that Holmes led a revolt against formalism at the beginning of the 20th century. I agree that there was an intellectual revolution at that time, but it was not a revolt against formalism. It was a revolt against natural law––the long-held belief that some things could be truly right or wrong and that law was about more than satisfying the tastes and interests of particular individuals and particular groups. The older way of thinking about things has all but disappeared. Holmes and other American jurists of the late 19th and early 20th centuries, though often painted as adversaries, actually were all committed to this remarkable transformation of legal philosophy.


    When did people begin to think of Holmes as a larger-than-life person?

    Holmes was not a particularly noted or revered Supreme Court Justice until he was about 80 and had been on the court for more than 15 years. Then a circle of talented young men, including the future Supreme Court Justice Felix Frankfurter, attached themselves to Holmes and initiated what amounted to a public relations campaign. This campaign created a mythic Holmes. But I certainly don’t deny that much of Holmes’ reputation is deserved. He was brilliant, wrote much memorable prose and got the two most important constitutional issues of his time right when most of the court got them wrong: freedom of expression and the permissibility of social welfare legislation.

    How did Holmes’ life affect his legal and ethical philosophies?

    Prior to the Civil War, Holmes was an abolitionist and participated in anti-slavery meetings. He dropped out of college at the outset of the war to enlist, fought for three years, was wounded three times and almost died. His letters describe hideous battlefront experiences. After his third wound, he was disappointed that his foot was not amputated because losing his foot would have ended his time as a soldier. Following the war, Holmes belittled his own abolitionism as well as all other isms. His horrific experiences together with the Social Darwinism of his age led him to see life as a struggle in which might makes right. This philosophy guided his judicial opinions and scholarly writings.

    Holmes believed in eugenics how did this fit into his life?

    It was his only political cause and was obviously is in line with his Darwinism. Holmes’ eugenic views were in fact more extreme than those of other eugenics enthusiasts of his time. Others talked about sterilizing “imbeciles” while Holmes advocated executing unfit babies.

    One of the reviewers of your book said you rely too much on Holmes’ letters, in which he intentionally tried to shock people.

    Holmes stated his views in particularly brutal ways in his correspondence, but he voiced precisely the same sentiments in his public pronouncements. You may discount the letters a bit for rhetorical overstatement if you like, bit don’t discount them altogether.

    How does the law today reflect Holmes’ skeptical view of life?

    There are two brands of skepticism in American law. The milder form is utilitarian pragmatism––basically, interest balancing. That’s what law and economics is about, and you see it in many Supreme Court opinions: “The defendant’s fundamental liberty interest is outweighed in this case by a compelling governmental interest.” Law and economics gives every human desire the same weight as every other, and the goal is to satisfy as many wants as possible. That’s what I call the mild brand of skepticism. What I call the piquant brand sees law simply as the exercise of power. Holmes endorsed this more extreme view. He did not believe in the greatest good for the greatest number; he believed that to the victor belong the spoils.

    What were Holmes’ views of race and gender?

    Though Holmes’ defenders, including passionate defenders among my colleagues, argue that his racism and sexism were no greater than the norm of his age, I argue that they were harsher than the norm. But he did associate with Jews and Catholics––particularly his colleague Louis Brandeis and the young intellectuals who idolized him––at a time when others of his background disapproved of doing so.

    What do you see as the most lasting negative impact of Holmes’ philosophy?

    Holmes was a key figure in a skeptical revolution that greatly influenced American jurisprudence. Since Plato, there has been a divide between moral realists and moral skeptics. For most of Western history, the Socratic notion that some things really can be right and wrong dominated moral and legal thought. Today the skeptics are ascendant. The prevailing view is that we make up right and wrong as we go along. Holmes said that we should look at law from the perspective of a self-interested bad man who cares only about material consequences. He saw law as simply a system of pricing.