The great Supreme Court justice Oliver Wendell Holmes Jr. is not the kind of justice who would have been appointed under Pres. Barack Obama’s criterion of “empathy” for certain groups.
Like most people, Justice Holmes had empathy for some and antipathy for others, but his votes on the Supreme Court often went against those for whom he had empathy and in favor of those for whom he had antipathy.
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By the same token, Justice Holmes did not let his sympathies with some people determine his votes on the High Court. As a young man, Holmes had dropped out of Harvard to go fight in the Civil War because he opposed slavery. In later years, he expressed his dislike of the minstrel shows that were popular at the time “because they seem to belittle the race.”
When there were outcries against the prosecution of Sacco and Vanzetti in the 1920s, Holmes said in a letter, “I cannot but ask myself why this so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them.”
Yet when two black attorneys appeared before the Supreme Court, Holmes wrote in another letter to a friend that he had to “write a decision against a very thorough and really well expressed argument by two colored men” — an argument “that even in intonation was better than, I should say, the majority of white discourses that we hear.”
Holmes understood that a Supreme Court justice was not there to favor some people or even to prescribe what was best for society. He had a very clear sense of what the role of a judge was — and wasn’t.
Justice Holmes saw his job to be “to see that the game is played according to the rules whether I like them or not.“
That was because the law existed for the citizens, not for lawyers or judges, and the citizens had to know what the rules were in order to obey them.
He said: “Men should know the rules by which the game is played. Doubt as to the value of some of those rules is no sufficient reason why they should not be followed by the courts.”
Legislators existed to change the law.
After a lunch with Judge Learned Hand, as Holmes was departing in a carriage to return to work, Judge Hand said to him: “Do justice, sir. Do justice.”
Holmes had the carriage stopped. “That is not my job,” he said. “My job is to apply the law.”
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“The criterion of constitutionality,” he said, “is not whether we believe the law to be for the public good.” That was for other people to decide. For judges, he said: “When we know what the source of the law has said it shall be, our authority is at an end.”
Imagine that today: a man wise enough to know the limits of his own authority, and when to defer to others on a particular subject. More, please.
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