Constitutional Conscience: The Moral Dimension of Judicial Decision

By H. Jefferson Powell | Go to book overview
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2 Playing the Game

Learned Hand is that rare example of a judge who lingers in American memory—American professional memory, to be sure— although he was never a member of the Supreme Court of the United States. Hand is the source, furthermore, of an anecdote central to the memory of a judge who did serve on the Court, Oliver Wendell Holmes, Jr.:

I remember once I was with [Justice Holmes]; it was a
Saturday when the Court was to confer. It was before we
had a motor car, and we jogged along in an old coupe.
When we got down to the Capitol, I wanted to provoke
a response, so as he walked off, I said to him: “Well, sir,
goodbye. Do justice!” He turned quite sharply and he
said: “Come here. Come here.” I answered: “Oh, I know, I
know.” He replied: “That is not my job. My job is to play
the game according to the rules.”1

Holmes is famous (or infamous) for arguing that one can best understand the law by purging one's thought of moral considerations.2 This story, as it is often understood, shows Justice Holmes enunciating a perspective on law that divorces positive law—the law that courts enforce—from the concerns for justice and fairness that originate in so-called ethical perspectives.3 Many people read Holmes in just this way, and understood in this manner, Hand's story seems to corroborate the accusation that Holmes was “a bitter and lifelong pessimist” for whom “the function of law is simply to channel private aggressions in an orderly, perhaps in a dignified, fashion.”4 Taken as a guide to

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