Justice Oliver Wendell Holmes, Jr. (
FJC), “the great dissenter,” was kind of a pompous
ass. That probably should not have surprised me, given his birthright in
Massachusetts aristocracy. And that probably should not have been my
chief take-away from the book,
The Great Dissent (2013) (
Amazon;
Macmillan), the impressive accomplishment of author and law
professor
Thomas Healy at Seton Hall Law. Somehow I am
stubbornly surprised every time a person I admire turns out to be no more than
human.
The subtitle of
The Great Dissent reads,
How Oliver Wendell Holmes
Changed His Mind—and Changed the History of Free Speech in America. That
refers to a monumental shift, now legendary in constitutional law, that seemed
to have occurred in Holmes’s thinking over the summer of 1919. In the
spring of 1919, Holmes and the Court majority were eagerly doing their part to
condemn targets of the First Red Scare, such as labor agitator Eugene Debs, for
criminal violation of the post-WWI Espionage Act. Then in fall 1919,
Holmes suddenly turns up in
dissent to
further convictions.
He used almost the
same language, the same rules that he had authored and joined earlier in the year.
But in the fall, with not even a
wink at the reader, he seemed to think the words had acquired entirely
different meaning.
Partnering with
Justice Louis Brandeis, Holmes’s powerful dissents in 1919 and following years outlined
a philosophy of free speech that ultimately passed the test of time.
Holmes veritably gushed ideas, such as “clear
and present danger” and “marketplace of ideas,” that became benchmark norms in 20th-century
civil rights law—not only in the United States but in democracies around the
world.
So what happened to Holmes in the summer of 1919? To answer that question, Healy takes the
reader on a spellbinding journey into the social and political dynamics of
America’s intellectual class—and last survivors of the Civil War—as they
struggled to maneuver the country in a new world order shaped by the ravages of
an unprecedented war.
There is an apocryphal answer to the 1919 question. The free speech analysis that Holmes and
Brandeis worked out after 1919 bore a striking resemblance to an earlier proposition
advanced by Judge Billings Learned Hand as trial judge in a 1917 case in
federal court in New York. Hand and
Holmes knew one another, if not well, and their contrasting judicial
philosophies, co-existing in era, frequently prompt comparison by scholars. So it was once speculated that perhaps Holmes
had met with Hand in precisely that summer.
It’s the kind of story that would make an exciting two-man show for the law-and-theater
crowd.
As Healy tells it, Hand did play a role, if less direct, in reshaping
Holmes’s thinking. Another figure
emerges as a key intermediary in Healy’s narrative, British political scientist
Harold Laski. Laski did interact with
Holmes quite a bit, before, during, and after the summer of 1919, and his
influence is plain. Of course the full
story is a good deal more complex, and Healy constructs it masterfully. More than that, I won’t spoil. Read the book.
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| Holmes in 1861 daguerreotype. |
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I was struck by three points of the story, and they all
relate to Holmes not really being the paragon of personhood I wish he were.
First, Holmes was an
elitist. He read 50 books in the
summer of 1919, Healy recounts. He was
always eager to immerse himself in the rich intellectual legacy of the Greek
philosophers. He was much less eager to
take up Justice Brandeis’s invitation to visit textile mills in the summer of
1919 to witness for himself the unsettling state of labor and labor strikes in
post-war America. On the one hand, it’s
fabulous that Milton’s Areopagitica
and Mill’s On Liberty were part of
the deep knowledge of the man who shaped modern free speech law. On the other hand, it’s hard to tell whether
he really understood the implications of dissent on the ground.
As my law school is now in the process of hiring a new dean, I think about Holmes's elitism in relation to the transformative trauma
unfolding in legal education today.
Law
schools are entranced with
experiential
education and are dumping jurisprudence in an effort to get students more
time in practice training.
Ian Holloway and
Steven Friedland
recently
located legal education in tension between a “grand university” model and a “Hessian
craft guild" model. Holmes was all grand
university, and that is not ideal.
But
modern free speech would not be what it is today if we were depending on the
Hessian craft guild to build it.
It’s
really important to have room for both.
Second, Holmes was a
little slow on the uptake, even on free speech doctrine. There was in fact correspondence between Hand
and Holmes, though it pre-dated 1919.
And Healy reports how Holmes just missed the point. Had he gotten the point, he might have
started dissenting a bit earlier, and maybe even saved some demonstrators and harmless
Bolsheviks from long prison terms.
A good example of Holmes’s fumbling start is the “clear and
present danger” doctrine, which was born before the summer of 1919, but only
later acquired its more rights-protective meaning. “Clear and present” was indicative of Hand’s
influence, suggesting as it did what today we might call a behavioral economic
approach to legal reasoning. But Holmes
rather blew it, because his use of the test was highly subjective. He gave the test no meaning, so allowed it to
be perverted by the fever of the Red Scare.
Later evolution of the test would reveal a dynamic relationship between
variables such as the “imminence” and “gravity” of the danger. That more sophisticated analysis prophylactically
protects speech that might be subversive, but poses no real threat, and also allows
free speech doctrine to realize its critical anti-majoritarian function. Hand understood that in 1917. It took Holmes quite a while to work it out.
Third, Holmes was not
a friend you could count on. Amid
the Red Scare, Holmes’s dear friends Laski and Felix Frankfurter, on the
Harvard Law faculty, suffered virulent persecution for their politics and identities. The “Red Summer” was the very summer of
1919. Both men were sympathetic with
labor, and both were labeled Bolsheviks.
Frankfurter, who was Jewish and Austrian, was further denigrated by post-war
anti-Semitic and anti-German sentiments.
Critics of Laski, a British national, demanded his expulsion from teaching
at Harvard Law. Imagine!—persecution on
a law faculty based on the politically correct zeitgeist. How last century.
To be fair, Holmes and Harvard Law Dean Roscoe Pound did
take steps to defend Laski and Frankfurter.
But their efforts, especially Holmes’s, were lackluster. Despite the loving affection that Holmes
professed for like-a-son Laski in private correspondence, Holmes resisted early
entreaties to help. Holmes was afraid of
offending Laski and Frankfurter’s persecutors on the Harvard Law faculty, whom
Holmes regarded as friends. Holmes
preferred to distance himself from the conflict and retreat to the sanctified solitude
of his private library. The great
dissenter, a Civil War veteran wounded in action, whose famous diction dominated
doctrinal opponents, shrank from moral defense of his friends, lest the
comforts of his social and economic status be placed in jeopardy.
Huh.
An honorable biographer, Healy is straightforward and matter
of fact when it comes to Holmes the man.
Holmes was a voracious reader, brilliant thinker, and surely was one of
the greatest jurists, perhaps the greatest jurist, in American history. Civil rights as we know it today, and much of
human rights as it is known in the world today, owes a debt to Holmes.
Holmes also cheated on his wife.
“If anyone, then, knows the good they ought to do and doesn’t
do it, it is sin for them.” James 4:17.
