39 Campbell L. Rev. 353 (2017)
“I believe in the iniquitous doctrine of my country right or wrong. Don’t throw me over for my speculative wickedness.”2
Justice Oliver Wendell Holmes, Jr. is an enigma. Even though his outsized influence on American law is beyond dispute,3 his worldview and self-understanding seem to come from anywhere but here. Toward the end of his decades-long career on the bench, for example, he privately admitted to British political theorist Harold Laski, “I see no right in my neighbor to share my bread. . . . except so far as he in combination has power to take it.”4 The reason? He had rejected “all postulates of human rights”5 in favor of power, coercive or otherwise.6 “Good and bad are of real significance only for the future where our effort is one of the instrumentalities that bring the inevitable to pass,”7Holmes explained with a shrug just before joining the Supreme Court.8 “If there is a world it seems to me that one may surmise that our judgments of significance and worth have no meaning for it.”9
Coming from a place where moral feelings and value judgments were of little consequence, Holmes was content with more flitting breakthroughs into “illusory [experiences of] personal spontaneity or independence . . . .”10 He saw that illusion in “less marked forms as consideration for the weak, charity to the poor, drunkenness, going to the play, painting pictures, etc.”11 But the “ideal expression” of that illusion, he once unsettlingly told his old friend Ellen Curtis, was suicide.12If a priest sitting in a confessional had overheard Holmes, he would hardly expect to be listening in on a towering Supreme Court Justice. A lonely eccentric, maybe, or perhaps even a madman. But how could a distinguished judge think that way? How did Holmes keep his worldview and his self-understanding from poisoning his pen?
Given Holmes’s unexpected prominence as a legal thinker, it is only fitting that his dissenting opinion in Lochner v. New York13is as enigmatic as the man himself. Holmes’s dissent has become, without a doubt, holy writ in American courts.14One hundred twelve years on, judges continue to rely on its prestige in even the biggest cases,15and many of the best-known scholars continue to sing its praises.16So it comes as a surprise when you thumb through the opinion and find that Holmes’s great dissent is, according to law professor Cass Sunstein, positively soulless. In his influential 1987 article Lochner’s Legacy,17Sunstein describes Holmes’s dissent as “com[ing] close to modern interest-group pluralism, which treats the political process as an unprincipled struggle among self-interested groups for scarce social resources”18—a description I will argue hits the nail on the head.19So aside from the obvious rhetorical merits of Holmes’s opinion,20 it is not so easy to see how Holmes’s dissent has earned the allegiance of generations.
In this Article, I tackle both the mystery of Holmes’s worldview and self-understanding, and the riddle of his Lochner dissent. My working theory is that each question helps answer the other. Holmes’s Lochner opinion provides a concrete example of how he applies his personal views, while his personal views give shape to his Lochner opinion. By setting the questions side by side, it becomes possible to get a better handle on each.
Of course, seeing inside Holmes’s head is tricky. Despite leaving behind mounds of judicial opinions, scholarly writings, speeches, and letters to friends and admirers, his writing on the whole trends toward partial thoughts, vignettes, and abbreviated commentary on others’ ideas. And as the question presented by his Lochner dissent suggests, even Holmes’s best legal writing only gets you so far. In order to get to the essence of his thought, you have to consider his personal views. But that is where the difficulty lies. Whether we look to Holmes’s weighty book The Common Law or to any of his carefully crafted articles, he never went to the trouble of fully explaining his worldview and sense of self. No matter where you look, a complete accounting of Holmes is just not there. We only have fragments.
To complicate matters, the fragments we do have resist the big picture. Holmes enjoyed making points with sketches rather than with step-by-step arguments.21 He tended to glide over his ideas as if they were familiar or well worn, even when they were not.22 And although he took pains to maintain a plainspoken air, he often put things in a way that suggested a deeper or personal meaning. To mark his ninetieth birthday, for instance, CBS aired a radio broadcast of tributes to the venerable judge, as well as his response.23 But rather than drawing a lesson from his career, Holmes meditated on the poetry of Virgil.24 “Death plucks my ears and says, Live—I am coming,” warned the Roman bard, to which the old Yankee responded, “[T]o live is to function. That is all there is in living.”25 As hard as Holmes’s message might hit us, it is difficult to understand what exactly he means. We can surely remember that life is functioning, but how do we incorporate that wisdom into anything else?
In order to uncover Holmes’s fundamental commitments, I take his advice on reading well. In a letter to British jurist Frederick Pollock, Holmes explained how he thought the great German philosophers should be read: “I believe that the real contribution of the [German] system-makers was one that was shared in by outsiders—viz., a certain number of aperçus or insights. The systems disappear, the insights remain . . . .”26 So we see that in Holmes’s mind, even some of the most technical and complex prose out there was best understood by zeroing in on a few essential insights. When you apply Holmes’s interpretive technique to his own catalog, you end up paying less attention to the particulars of what he is saying, and more attention to how it makes sense for him to say it. He becomes a rolling kaleidoscope of moods and observations—laid over only a handful of repeating patterns.
In this Article, I outline those patterns in three parts. In Part I, I focus on Holmes’s worldview and self-understanding. I outline the major features of Holmes’s worldview, including his theory of cooperative combinations, and I explain how his worldview gave shape and form to his sense of self. Although I believe that Holmes’s worldview was explicitly devoid of meaning, I maintain that his sense of self allowed him to see individual life as meaningful, and that his theory of combinations suggested that social life tends to improve over time.
In Part II, I look at the mechanics of Holmes’s Lochner dissent. I set the stage by recounting the rise of a legal doctrine called the right to liberty of contract. Then I identify what Holmes’s dissent responded to by explaining how Justices Rufus Peckham and John Marshall Harlan respectively applied that right in Lochner. I then turn my attention to Holmes’s dissent. I explain how Holmes’s worldview informed his rejection of the right to contract and led him to dismiss the doctrine of judicial supremacy.
Finally, in Part III, I investigate how Holmes applied his self-understanding to his Lochner dissent. I argue that while Holmes’s worldview is sufficient to explain the approach he took to Lochner, he augmented his reasons for taking that approach with the personal meaning he took from his sense of self. Holmes, it turns out, was not willing to leave a romantic view of life out of his jurisprudence. On the contrary, his jurisprudence combined a gloomy worldview with an inspiring faith in the American spirit.
In the end, I argue that Holmes’s Lochner dissent has a distinctly sentimental side. It reflects Holmes’s sad and sweet sense of Americanism. It salutes a hope that many Americans had locked away in their hearts. And it shows us who Holmes really was. But before I can draw the man out of the Lochner case, I must start at the beginning: Holmes’s worldview and self-understanding.