10 Pages Posted: 23 Jul 2013
Date Written: 2013
Conservatives and libertarians have been harsh critics of Justice Holmes, but Holmes was not the progressive that these critics make him out to be. Holmes’s jurisprudence lends itself to conservative and libertarian jurisprudence, in particular in the areas of federalism and judicial restraint. Holmes disdained the politics of the young socialists who adored him, and Richard Posner goes so far as to cast Holmes as a free market capitalist. A common mistake is to take Holmes’s deference to the mores and traditions of states and localities as evidence of his shared belief in those mores and traditions. Holmes did not have to agree with states and localities to say that federal judges and Supreme Court justices should not inject their worldview into the life of a local community with an opposing worldview. The pragmatist in Holmes disliked making decisions that were not rooted in lived experience or based on observable, concrete phenomena relating to commonplace interactions among regular people. Holmes also disliked any tendency to marry morality and law, since law, for him, was a set of rules reflecting the practical consequences arising out of everyday social relations. All labels for Holmes miss the mark. Holmes defies categorization, which is a lazy way of affixing a name to something to avoid considering the complexity and nuances and even contradictions inherent in that something. Although defying labels, Holmes does offer views that conservatives and libertarians ought to prize, not criticize.
Keywords: Justice Holmes, Oliver Wendell Holmes Jr., Conservatism, William James, Libertarianism, Judicial Restraint, Federalism, The Fourteenth Amendment, Pragmatism
Suggested Citation: Suggested Citation
Mendenhall, Allen, Justice Holmes and Conservatism (2013). Texas Review of Law & Politics, Vol. 17, No. 2. Available at SSRN: https://ssrn.com/abstract=2296865