At the Claremont Review of Books, Martin J. Salvucci: Dissenting from Holmes (reviewing Stephen Budiansky, Oliver Wendell Holmes: A Life in War, Law, and Ideas (W.W. Norton 2019)). From the introduction:
Often quoted yet rarely understood, Supreme Court Justice Oliver Wendell Holmes, Jr. (1841-1935) might reasonably be accused of achieving fame in large part for achieving fame. Although few would dispute his unmatched ability for the felicitous turn of phrase, the Yankee from Olympus has, in recent years, fared poorly in the legal profession’s marketplace of ideas. Long reviled by broad segments of the judicial right for his unapologetic relativism, Holmes has likewise attracted censure from the progressive left for his refusal to confront the majoritarian excesses of the political process. Stephen Budiansky—the latest in a long line of biographers and, we learn, admirers—sets out to dissent from these and seemingly all other criticisms in Oliver Wendell Holmes: A Life in War, Law, and Ideas.
This task does not lack for ambition. And to the extent Budiansky breaks new ground—always a threshold concern in the case of such well-papered legacies—he does so by crafting an engaging portrait of a headstrong young man. A military historian whose previous books include Perilous Fight: America's Intrepid War with Britain on the High Seas (2011) and The Bloody Shirt: Terror After the Civil War (2007), Budiansky begins by offering a textured account of Antebellum Boston near the height of its influence. The intellectual capitol of America was then fecund in the way that only imminent crisis can inspire. Living there had a profound impact on young Wendell Holmes—in particular it encouraged his abolitionist convictions, which eventually impelled his departure from Harvard Yard at the outbreak of the Civil War in 1861. Budiansky lavishes attention upon Holmes’s volunteer service to the Union Army as a thrice-wounded officer in the so-called “Harvard Regiment.”
In part this outsized attention is meant to reflect the war’s outsized role in Holmes’s intellectual formation: Budiansky takes almost as given Louis Menand’s now-famous observation that the Civil War caused young Wendell Holmes to “lose his belief in beliefs.” But the war also looms large because of a self-conscious methodological choice on Budiansky’s part. He grounds much of his account—and not just of Holmes’s youth—in careful study of Holmes’s private correspondence. At its outset, the book benefits tremendously from the author’s evident facility with matters of military history. And Budiansky supplements his elegant account of three bloody years in America with a number of contemporaneous observations in Holmes’s own voice. Notwithstanding the latter’s Yankee reticence, this often makes for powerful reading.
And in conclusion:
Of course, Holmes cannot shoulder the blame entirely for the judicial branch’s radical arrogation of power and influence. But the incorporation of federal constitutional rights against the states—a project for which the First Amendment, as recast by Holmes, soon formed the tip of the spear—should be considered patient zero. In part thanks to Holmes, we have inherited a world where common-law (or statutory) rights have been constitutionalized, courtesy of the federal courts. And, ironically, the political branches have little say in pushing back against the definition or horizons of these rights. It is difficult to imagine this state of play not troubling Holmes. And so, too, should it trouble his shrinking circle of devotees.
To be clear, the development of modern statutory law—particularly the sprawling and unwieldy United States Code—likely calls into question the relevance of common-law judging in the first instance. Although Holmes—if we are to take Budiansky at his word—might hold contemporary textualists in deep contempt, the interstitial spaces in which the common law thrived are few and far between. For all its manifest flaws, Congress has purposefully written many of these statutes broadly, in part to limit what amounts to policy-making from the bench. At least at the federal level, therefore, it is likely that we shall never see another “great” common-law jurist.
Whether Oliver Wendell Holmes, Jr., really was “great” in that respect remains an open, and—I think—appropriately contested question. The success of his jurisprudential project—at least as it is commonly understood—remains debatable, even on most charitable reading. Perhaps, then, Holmes could be said to offer something of a window into the best and the worst of America during an uncommonly eventful moment in its history. He cultivated the rarest combination of winsome prose and profound erudition; to say nothing of pluck and personality in abundance. But these gifts—and gifts they were, to be sure—provided ample cover for lazy, inconsistent, or flatly incoherent thinking. And the marketplace of ideas is—much like its progenitor—ruthless.
RELATED: I'm two days late with this post — via Josh Blackman at Volokh Conspiracy, Justice Holmes took the oath of office on December 8, 1902.
Posted at 6:11 AM