A Nightmare Justice
26th June 2011
Imagine a twentieth century Justice who was a Social Darwinist; who had a self-proclaimed disdain for facts, and who often substituted flip aphorisms for legal analysis; who was the most hostile Justice of the century to the rights of African Americans, dissenting even in cases invalidating peonage laws as violations of the Thirteenth Amendment; who showed virtually no interest in civil liberties, dissenting, for example, from the Court’s decision invalidating a law banning the teaching of foreign languages in private schools; who wrote one of the most intemperate opinions in Supreme Court history, affirming the sterilization of alleged imbeciles, with his only regret that his colleagues made him tone down his wording; who wrote, even after being censored by his colleagues, that instead of waiting to “execute degenerate offspring for crime, or to let them starve for their imbecility,” it’s best to prevent the “manifestly unfit from continuing their kind”; who mocked the notion that the Nineteenth Amendment signaled that the law should treat women equally with men: “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those differences into account;” who was such a strong majoritarian that he argued that “a law should be called good if it reflects the will of the dominant forces of the community, even if it takes us all to hell.”
In fact, you don’t have to imagine such a Justice, as I’ve described Oliver Wendell Holmes, Jr.
Almost every Supreme Court Justice (indeed, every judge) that is famous today is so as the result of his willingness to twist the law to achieve what ‘progressives’ consider a good result. Cardozo, Frankfurter, Brandeis, Thurgood Marshall — all of them figured out where he wanted the case to wind up and then carefully crafted a verbal rationalization that he knew people would swallow because they agreed with his conclusions rather than the law. The technical term for this is ‘sophistry’ and the fact that lawyers just love the shit out of the ability to do this is the chief reason I’ve never practiced law.
June 26th, 2011 at 13:36
“who mocked the notion that the Nineteenth Amendment signaled that the law should treat women equally with men:”
The Law should treat men as equal to women. What a laugh. He should be celebrated as an early feminist.