Disenchanting Justice Holmes

4 Pages Posted: 8 Jul 2021 Last revised: 11 Nov 2021

Date Written: June 27, 2021


Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper.

Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.

Suggested Citation

Warden, Derek, Disenchanting Justice Holmes (June 27, 2021). University of Illinois Law Review, Vol. 2021, Available at SSRN: https://ssrn.com/abstract=3874946 or http://dx.doi.org/10.2139/ssrn.3874946

Derek Warden (Contact Author)

Louisiana Supreme Court ( email )

400 Royal Street
New Orleans, LA 70130
United States

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