Wells on Reinventing Holmes: The Hidden, Inner, Life of a Cynical, Ambitious, Detached, and Fantastic Old Judge Without Values @BCLaw
Catharine P. Wells, Boston College Law School, is publishing Reinventing Holmes: The Hidden, Inner, Life of a Cynical, Ambitious, Detached, and Fantastic Old Judge Without Values, in volume 37 of the Tulsa Law Review (2022). Here is the abstract.
Holmes is perhaps the only Supreme Court Justice that could truly be called a celebrity. He is the best known, most written about figure in American law. He served on the Massachusetts Supreme Judicial Court and the United State Supreme Court for more than fifty years. Seventy years after his death, many of his opinions are still well known and frequently quoted. His collected papers remain in print and they are still publishing collections from his extensive correspondence. Two of his scholarly contributions-The Common Law and The Path of the Law are classics of American jurisprudence. Indeed, one hundred years after The Path of the Law was published, four law reviews celebrated the occasion by holding symposia in his honor. In addition to professional fame, his private life has been a subject of continuing interest. As a boy, his father used him as the basis for one of his characters in “The Autocrat of the Breakfast Table” – a regular column that appeared in the Atlantic Monthly. As a soldier, his heroic exploits were well known. And as a Supreme Court Justice, he was known for his quotable opinions and his striking appearance. He was extremely tall, stood very straight, had thick white hair, and sported a military mustache. It is no wonder that he captured the public imagination when he was portrayed as The Yankee from Olympus in a popular biography, and as The Magnificent Yankee in a Broadway play, a general release motion picture, and a “Hallmark Hall of Fame” television broadcast.
For Holmes, the price of celebrity has been high. American celebrities are not just famous. Their image is fabricated by those who write and talk about them; they represent fantasies and projections rather than the more solid world of flesh and blood. Since his death, Holmes’s persona has survived many incarnations. As the “Yankee From Olympus,” he has stood for the triumph of old fashioned American values over the creeping mediocrity of the industrial age. As a truly “mature” jurist, he has represented the law’s ability to be decisive in confusing times. As a childless man, he has become a symbol of the failure of American fatherhood-his direct and unemotional manner taken as a symptom of a father’s inability to love and nurture a new generation. Praise or condemnation, the story is the same: Holmes reminds us of our deepest yearnings and our deepest fears-and because of this-most of what is written about him tells us more about ourselves than about the man himself.
In this vein, there has been a strand of Holmes’s scholarship that has focused on debunking the myth of Justice Holmes as the great figure of American law. This has taken the form of showing: (1) that his legal opinions were never as progressive as they seemed; (2) that his experience in the civil war made him detached, ambitious, self centered, and mean spirited; (3) that he held despicable views on eugenics; and (4) that he had a poor record on civil rights. Inevitably, the conclusion is that Holmes has been a less than salutary influence on American law. Albert Alschuler’s book, Law Without Values: The Life, Work, and Legacy of Justice Holmes, is one more contribution to this genre. It is an interesting and engaging book-easy to read and rippling with conviction, but like other attempts to deal with celebrity, it sacrifices a balanced judgment about the historical figure to the development of a larger point about the legal culture.
Download the article from SSRN at the link.