A Long Shadow
Shiffman, Stuart, Judicature
A long shadow Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint, by Frederic R. Kellogg. Cambridge University Press. 2007. 218 pages. $70.
The shadow cast by Oliver Wendell Holmes, Jr. over American law and jurisprudence is lengthy. Though it has been more than a century since Holmes was nominated and confirmed as a justice of the United States Supreme Court, and 74 years since his retirement, Holmes remains a towering figure for any scholar of the role of law in our society. In the past two decades alone he has been the subject of four biographies, four symposia, two new collections of his writing, and numerous articles and monographs. For many, Holmes was the poster judge who exemplified the notion of "judicial restraint." The justice was willing to uphold the constitutionality of progressive legislation that he disliked, remarking that "if my fellow citizens want to go to hell, I will help them. It's my job."
Frederic Kellogg's Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint offers still another perspective on the jurisprudence of the only Supreme Court justice to have been the subject of a bestselling historical novel (Yankee from Olympus by Catherine Drinker Bowen), a hit Broadway play, and a motion picture (both titled "The Magnificent Yankee"). Kellogg suggests that contemporary notions of judicial conservatism lack fidelity to true judicial restraint Using that premise as his springboard he argues that Holmes' common law theories merit new consideration because his approach to constitutional, statutory, and common-law decision making produce an admirable measure of judicial restraint, more in keeping with the true meaning of that philosophy. His book is an attempt to place the issue in a broad historical and theoretical context that is neither innately liberal nor conservative, as those terms are used in contemporary legal debate.
American jurisprudence has long debated theories of constitutional interpretation. Originalists argue that the Constitution must be interpreted in the manner that the original authors intended when they wrote the document in 1787. Others believe that the document must be interpreted in the context of an always evolving society. Sadly, modern legal debate has become a battle over buzz words and talking points that often muddles rather than sharpens the discussion.
In a speech to the Harvard Law School Association of New York, Justice Holmes observed that. "It cannot be helped, it is as it should be, that the law is behind the times." Timing in constitutional law was an important element of Justice Holmes' legal theory. He focused heavily on the social context within which legal and constitutional decisions are made. Holmes believed strongly that judges should avoid reading their own beliefs into the law. But to say what judges should not do is only a partial answer to the difficult and complex debate about how judges should decide cases. The constitutional scholar Paul Freund often asked "should the court serve as the conscience of the country?" This debate is often reflected in decisions and dissents of state high courts as well as the United States Supreme Court as these bodies struggle with questions of same-sex marriage, the death penalty for juveniles, and sexual activity between consenting adults, to mention just a few of the hot button issues currently confronting American jurisprudence.
Can Justice Holmes add insight to this ongoing contemporary debate? For Professor Kellogg the answer is an emphatic "yes." Holmes believed there was an important distinction between judicial restraint and judicial circumspection, and advocated the second approach. If judges routinely assumed that broad constitutional principles were part of the legal fabric, trumping legislation and precedent, then the judiciary could destroy the legislative process. Such a judicial philosophy could be a clever but poisonous argument. …