Saturday, August 10, 2013

Three Blog Posts on Holmes in One Week Are Enough

By Mike Dorf

Due to my sloppiness in consulting my calendar while traveling, I scheduled two posts for Thursday and none for Friday.  As a result, Thomas Healy's excellent discussion of the impact Justice Holmes had on American free speech law was only on the top of the blog for a few hours on Thursday, and for email subscribers it ended up buried beneath Neil's latest post.  Accordingly, for those of you who missed it on Thursday, I urge you to take a look by following the link above.

Meanwhile, the title of my post here is meant to suggest an answer to the question Thomas poses at the end of his post.  Holmes infamously wrote in Buck v. Bell that "three generations of imbeciles are enough."  He thus upheld against a substantive due process challenge a law that authorized the involuntary sterilization of an institutionalized "feeble-minded" woman.  The case is generally regarded as monstrous and demonstrative of Holmes' attraction for eugenics, barely a few years before the rise of Nazism.

Thomas speculates at the end of his post that were it not for his championing of free speech, Holmes would largely be forgotten (except among academics).  I want to suggest that he would be remembered but either as a nihilist along the lines of Al Alschuler's portrayal, or as a statist.  Without the free speech opinions to provide context, Buck v. Bell might well taint even Holmes' Lochner dissent, making it look less like a defense of judicial restraint with regard to economic regulation and more like part of a general approval of the exercise of government power.