Mr. Justice Holmes: The Community vs. The Individual

Abstract

MORE THAN any lawyer of the twentieth century Holmes captures the imagination. He is, in a praiseworthy sense, all things to all people. To the iconoclast, he is the great dissenter; to the liberal, he is the hero of the rebellion against judicial arrogance; to the conservative, a New England Yankee skeptical of economic nostrums; to the soldier, an apostle of war; to the philosopher, a gifted amateur honoring ideas above worldly accomplishment; to the jurist, an inexhaustible source of wisdom and quotation; to the professor, a tireless student of legal history and legal purposes. The resolution of this complexity is the work of biography and history. The lawyer has a different task. He must understand Holmes law. For in all the paradoxes of Holmes, the final paradox is that the Justice, now fifteen years resigned from the bench, has today greater influence than he ever exercised as the senior side judge. In many areas the present Court can differ with Holmes only by an obvious effort of will. Nor is this unnatural. Many of the Court members participated personally in the struggle against the judges who for two decades denied the will of the people. Holmes was the hero of that struggle. To make his philosophy the law of the land was its prime purpose. Small wonder then that disagreement with Holmes now seems faintly akin to treason. Whoever reads Holmes rapidly learns that it is easier to tabulate his ideas than to discover the source of his principles. He reached the Court at sixty-one with full maturity and after more than two decades on the Massachusetts bench. He was completely sophisticated in the judicial technique. Almost immediately he announced the constitutional doctrine which he was to expound for thirty years.' His statement, furthermore, was fully developed. The early opinions show little hesitation or uncertainty. Holmes, like Marshall, knew what he thought from the very beginning.