Oliver Wendell Holmes, Jr.
Oct. 12th, 2005 01:52 pm![[personal profile]](https://www.dreamwidth.org/img/silk/identity/user.png){kind=small}
solarbirdOliver Wendell Holmes, Jr. appears to have been a legal realist, which is to say, a justice supporting concepts such as:
There are those who talk about his willingness to defer to elected bodies, but to get from that the idea that he's an icon of judicial restraint... well, that appears to be to be cherry-picking at best. However, I'm not a lawyer, and my knowledge of legal history gets a bit iffy that far back.
Still... I kind of can't see it. From what I've been reading quickly just now, he seemed perfectly willing to throw his office behind causes, and was more than willing to reject dominant social thinking of the time to make decisions favouring, for example, the union movement, when the majority social and legislative opinions stood firmly against them. So does that mean that's it for judicial restraint, then, even in name? Dobson and Starr seem to be saying that she's a judicial activist for fundamentalism, so I'm leaning towards yes.
But again, there's that question of cherry-picking. Maybe I'm doing that, too. So either way, really, it seems strange to me for Starr to have dropped his name, particularly since Holmes is generally thought of as a big defender of the First Amendment, and was Chief Justice on the court that started a habit of striking down anti-speech laws on that basis. (Except during wartime, hm. Interesting. He helped author some pretty nasty speech-restricting decisions during World War I.)
I guess I mostly think that this isn't the kind of line you'd expect out of a strict constructionist.
legal instrumentalism, the view that the law should be used as a tool to achieve social purposes and to balance competing societal interests.and
Belief in the indeterminacy of law. Many of the legal realists believed that the law in the books (statutes, cases, etc.) did not determine the results of legal disputes.(Both from Wikipedia.)
There are those who talk about his willingness to defer to elected bodies, but to get from that the idea that he's an icon of judicial restraint... well, that appears to be to be cherry-picking at best. However, I'm not a lawyer, and my knowledge of legal history gets a bit iffy that far back.
Still... I kind of can't see it. From what I've been reading quickly just now, he seemed perfectly willing to throw his office behind causes, and was more than willing to reject dominant social thinking of the time to make decisions favouring, for example, the union movement, when the majority social and legislative opinions stood firmly against them. So does that mean that's it for judicial restraint, then, even in name? Dobson and Starr seem to be saying that she's a judicial activist for fundamentalism, so I'm leaning towards yes.
But again, there's that question of cherry-picking. Maybe I'm doing that, too. So either way, really, it seems strange to me for Starr to have dropped his name, particularly since Holmes is generally thought of as a big defender of the First Amendment, and was Chief Justice on the court that started a habit of striking down anti-speech laws on that basis. (Except during wartime, hm. Interesting. He helped author some pretty nasty speech-restricting decisions during World War I.)
I guess I mostly think that this isn't the kind of line you'd expect out of a strict constructionist.
"A word is not a crystal, transparent and unchanging, it is the skin of a living thought and may vary greatly in colour and content according to the circumstances and time in which it is used." - Oliver Wendell Homes, Jr.Or maybe I'm just overthinking the whole thing and Starr was just making a hyperbolic comparison to one of the most important justices in American history to boost enthusiasm for a fundamentalist social activist. I sure wish I knew.
