You know, whenever we picture the Supreme Court,
the image is almost always the same. It's static.
It's quiet. Very formal. It's nine people in
black robes sitting in this marble temple, seemingly
removed from the messy, dirty reality of regular
life. Right. We imagine them operating on this
high plane of pure logic, like they're solving
a complex math problem where X equals justice.
That is the popular mythology. The judge as the
oracle channeling some divine word of the law,
totally untouched by a human emotion or, you
know, prejudice. Yes, exactly. But then you run
headfirst into a guy like Oliver Wendell Holmes
Jr. And if you just look at the sheer timeline
of this man's life, it completely destroys that
image of the static removed judge. Oh, it shatters
it. I mean, the scope is actually hard to wrap
your head around. We are talking about a human
being who, through his father, was literally
one degree of suffering. from John Quincy Adams.
A founding father's son. Right. And yet he was
still writing opinions and influencing law while
Franklin Delano Roosevelt was rolling out the
New Deal. It is a staggering bridge. He effectively
spans the entire transformation of America. He
starts in the era of the quill pen and the horse
-drawn carriage amidst the chaotic, formative
years of the early republic. And he finishes
his career in the age of the telephone, the radio,
and the industrial welfare state. And he didn't
just live through it. He shaped it. He is arguably
the most cited, most famous judge in American
history. People call him the great dissenter.
He's held up as a hero to progressives. But.
And this is the thing that really hooked me when
I started reading the source material. He is
a walking, talking paradox. He is a massive ball
of contradictions. He doesn't seem to fit into
any modern political box at all. That is the
most important thing to understand about him.
If you try to label him a liberal or a conservative
by today's standards, you will fail. It just
doesn't work. Exactly. I mean, we're talking
about a guy who is the godfather of free speech,
the guy who basically invented the protections
we rely on today. The marketplace of ideas. Yes.
Yet he also wrote the opinion upholding the government's
right to forcibly sterilize women. A truly chilling
opinion. He's celebrated as a champion of the
common man's right to pass laws. But personally,
he was a cynical, aloof aristocrat who thought
most people were. frankly, idiots. He had a very,
very low opinion of the average intelligence,
yes. He was not shy about that. And he didn't
believe in natural rights, the idea that we're
born with these God -given protections. Yet he's
the reason we have so many of those protections
enforced today. So I think the mission for this
deep dive isn't just to list his cases. No, that
would be missing the point. It's to figure out
how these contradictions coexist. We want to
understand how the physical, bloody trauma of
the American Civil War took a young, starry -eyed
idealist and hammered him into the most cold
-blooded... realistic legal mind of the 20th
century. It is fundamentally a story about trauma.
You cannot understand his jurisprudence, his
theory of law, without understanding the mud
and the blood of 1862. So the war didn't just
change his personality. No, it changed the way
he viewed the entire concept of truth. It changed
his whole philosophy of life. So let's unpack
this life. We've got... biographies legal opinions
his personal letters which are incredibly revealing
by the way they really are he was a phenomenal
writer where do we even start with a character
like this to understand the fall you have to
understand the height from which he fell we have
to start in boston specifically in 1841 Holmes
wasn't just born into a good family. He was born
into the absolute apex of the Boston Brahmin
society. The Brahmins. OK, so these are the old
money intellectual elite. The absolute top of
the social and intellectual pyramid. The people
who thought Boston was the hub of the solar system.
And his father, Oliver Wendell Holmes Sr., was
essentially the sun at the center of that hub.
A perfect way to put it. He was a physician,
but more fantasily, he was a poet and a celebrity
intellectual. He wrote The Autocrat of the Breakfast
Table, which was one of the most popular books
of the entire era. Wow. Imagine growing up in
a house where your dad is nationally known as
the autocrat. It has to do something to your
ego, right? I would think so. It was a household
of immense pressure and immense idealism. The
family friends weren't just neighbors. They were
the giants of American thought. Like who? Well,
Henry James Sr., for one. And, of course, the
big one. Ralph Waldo Emerson, young Wendell,
that's what the family called him, grew up swimming
in the waters of transcendentalism. Okay, give
us the quick refresher on transcendentalism.
It's more than just nature walks, I assume. Laugh
a bit. In this context, it was a belief in the
inherent goodness of people and nature. Ideally,
they believed in natural law. Capital N, capital
O. Exactly. They believed that there were universal
moral truths, truth with a capital T that govern
the universe, and that if you were smart enough
and moral enough, you could discover them. It
was a world of high moral philosophy and really...
deep optimism. So he's a young man, incredibly
smart, ambitious, and he's taught that the world
makes sense. It operates on moral rules. And
he was cocky, too. There's a fantastic anecdote
from his undergraduate days in Harvard. He writes
an essay criticizing Plato. Bold move for a college
kid. It is. Now, remember, Plato is the foundation
of idealist philosophy. He's the ultimate idealist.
And Holmes, being a bold undergraduate, decides
to take him on. He takes this essay to the family
friend Ralph Waldo Emerson, probably expecting
a pat on the head. Look, Mr. Emerson, I took
down Plato. Basically. And Emerson reads it,
looks at this young man, and delivers one of
the coldest lines in literary history. He says,
when you strike at a king, you must kill him.
Ouch. That's not good effort, Wendell. You missed,
kid. Don't even try. It was a lesson in humility,
but it also shows Holmes' nature. He wanted to
slay dragons. He was an abolitionist in his youth,
a fervent one. So he had that fire, that belief.
He did. He served as a bodyguard for Wendell
Phillips, the radical abolitionist, during dangerous
protests in Boston. He was filled with what he
would later call fighting faith. He believed
the North was right, the South was wrong, and
that the universe cared about the difference.
And then the universe showed him it didn't care
at all. The Civil War starts. April 1861. Fort
Sumter. Lincoln calls for volunteers. Holmes
is fresh out of Harvard, full of that Brahmin
idealism, and he immediately commissions in the
20th Massachusetts Volunteer Infantry. And we
need to pause on the 20th Massachusetts. This
wasn't just a random assortment of guys. No,
not at all. It was known as the Harvard Regiment.
These were the sons of the elite. These were
his classmates, his cousins, the golden boys
of Boston society. So they all marched off together.
We marched off to war, thinking it would be a
noble crusade. A glorious adventure. They had
no idea they were walking into a meat grinder.
And Holmes, he didn't get a desk job. He didn't
get a safe staff position because of his dad's
fame. Far from it. He was a line officer. He
was in the thick of it from day one. And when
we say trauma, I want to be specific because
the textbooks often just gloss over this. Holmes
was wounded three separate times. And these weren't
grazes. Okay, let's walk through them because
I think the physical reality of this is what
breaks his idealism. You can't just read about
this. You have to feel it. The first was the
Battle of Balls Bluff in October 1861. It was
a tactical disaster for the Union, a total rout.
They were backed up against a river, getting
slaughtered. And Holmes is right there. In the
middle of it. He takes a bullet directly in the
chest. In the chest. It entered his chest, missed
his heart by a fraction of an inch, and passed
through. He fell to the ground, coughing up blood.
He must have thought that was it. He did. He
was dragged to a boat to be evacuated. He later
wrote about lying there, convinced he was dying.
and clinically checking his own pulse, wondering
what the transition to the other side would feel
like. How old is he? He was 20 years old. Wow.
And that's the first one. He recovers, which
is a miracle in itself, given 1860s medicine,
and he goes back. He goes back. He feels it's
his duty. September 1862, Antietam. The single
bloodiest day in American history. The 20th Massachusetts
is maneuvering through the famous cornfield.
It's just... Chaos. Smoke, noise, bodies piling
up everywhere. And Holmes is shot through the
neck. The neck. I mean, the psychological impact
of that. You survive a chest wound, you go back,
and almost immediately you get hit in the throat.
The bullet passed right through. He carried the
actual bullet with him for the rest of his life.
He scrawled the letter home in pencil, stained,
saying, I am not dead yet. Unbelievable. But
the recovery was brutal. They treated the wound
with iodine. which was agonizing. He couldn't
speak. He just lay there in a field hospital
watching the casualty list come in, seeing the
names of his friends, the boys he grew up with,
being crossed off one by one. And yet he goes
back again. He does. Chancellorsville, 1863.
This time, he's shot in the heel. His foot is
mangled. And while that sounds less lethal, the
infection risk was enormous. Gangrene was a death
sentence. So it's not just the wounds, it's the
constant threat of disease. On top of the bullets,
he suffered a near -fatal case of dysentery.
He's essentially wasting away for a time. He
watched his best friend in the regiment, Henry
Abbott, take command and then get killed. He
saw the Harvard regiment decimated. Over half
the officers he started with were dead. This
is the crucible. You go in believing in natural
law and truth, and you spend three years seeing
that bullets don't care about truth. They don't
swerve for the righteous. That is exactly the
lesson he took away. It killed the idealist.
It burned it out of him. He realized that natural
law is a fantasy. In the cornfield at Antietam,
there was no higher moral order. There was only
force. There was only power. Exactly. The side
that won wasn't the side with the better arguments
or the holier cause. It was the side that could
mobilize more men and kill more people. Full
stop. It sounds incredibly bleak. It sounds like
he became a nihilist. Not a nihilist, but a profound
skeptic. A realist in the starkest sense. He
came to believe that what we call rights or morality
are just the preferences of the people who have
the power to enforce them. The winners. Winners
write the law. Years later, he gave a speech
called The Soldier's Faith. It is haunting. He
talks about the experience of war not as a crusade
for justice, but as throwing away life. in obedience
to a blindly accepted duty for a cause one little
understands blindly accepted duty that's terrifying
it's not i fought to free the slaves it's i fought
because i was standing in a line and i didn't
run away correct he replaced morality with duty
he decided that since you can't know the ultimate
truth of the universe the only honorable thing
to do is to do your job to be a professional
to execute the will of the sovereign whether
that sovereign is a general or later the majority
of voters, without asking too many questions
about whether it's right in a cosmic sense. It's
just about function, doing the task at hand.
Precisely. Before we see how that shaped his
law career, we have to touch on the Lincoln story.
Because it's the only time these two massive
figures intersect, and it's just, it's wild.
It is part of the Holmes legend. So, the Battle
of Fort Stevens, 1864. The Confederates, under
Jubal Early, launch a surprise raid and actually
get within sight. of the Capitol Dome. The war
was almost over and suddenly the Confederates
are at the gates of Washington. The city is in
a panic and President Lincoln rides out to the
fortifications to inspect the defense. He's the
only sitting president to come under enemy fire.
Yes. And he's not exactly subtle. He stands up
on a parapet. He's six foot four wearing a stovepipe
hat. He's the most obvious target in the history
of warfare. Like a carnival game. And bullets
are thwacking into the wood around him. A surgeon
standing just near him gets hit. It's an insane
situation. And Holmes is there. Holmes is the
young staff officer by this point. Yeah. And
the story goes that he sees this tall idiot standing
in the line of fire, doesn't realize it's the
president, and shouts, get down, you damn fool.
Can you imagine? You're a 23 -year -old kid and
you scream, you damn fool, at Abraham Lincoln.
And the legend says Lincoln got down, looked
at him and said something like, Captain? I'm
glad you know how to talk to a civilian. Now,
we have to be historically responsible here.
OK, what's the fact check? Holmes was a bit cagey
about this later in life. Sometimes he said he
shouted it. Sometimes he said someone else shouted
it. Sometimes he implied he just wished he had
shouted it. Other sources suggest he might not
have even been at that part of the fort that
day. Look. If I'm 90 years old and people ask
if I saved Lincoln's life by calling him a damn
fool, I'm saying yes. He certainly didn't deny
it too hard in his later years. But, true or
not, the image captures the essence of Holmes.
He respected the office, but he saw the man,
even the great emancipator, as just another organism
vulnerable to a bullet. Right. It reinforces
that fragility of authority. Even the king can
be killed if he stands in the wrong spot. And
in war... Everyone is standing in the wrong spot.
So the war ends. Holmes survives. He goes back
to Boston, traumatized, hardened, and needing
a job. He considers philosophy. He debates with
his friend William James, the great pragmatist
philosopher. But his father, the autocrat, steps
in again. Holmes famously said his father kicked
him into the law. Didn't think it was a worthy
profession. His father didn't think Holmes could
make a living in philosophy. So he goes to Harvard
Law School. And this is where the conflict starts,
because the way law was taught back then was,
well, it wasn't what Holmes experienced in the
mud. It was the absolute antithesis of the mud.
The dominant figure in legal education at the
time was Christopher Columbus Langdell, the dean
of Harvard Law. Okay. And Langdell viewed law
as a hard science, almost like geometry or botany.
He believed there were a set number of legal
axioms or principles. If you learned the axioms
and applied pure logic, you would always get
the right answer. Every time. So A plus B equals
justice. It's a closed system. It's clean. Exactly.
It was called the case method. But the point
was to distill these pure, timeless rules from
the cases. If a real world case didn't fit the
logic, Langdell would say the case was wrongly
decided. Not that his theory was wrong. The world
is messy. The logic is pure. It was beautiful.
elegant, and completely detached from reality.
And Holmes looks at this and says, this is garbage.
He looks at it and says, this isn't how the world
works. He saw it as a kind of intellectual fantasy.
He spends his evenings grinding away, reading
historical law reports going back centuries.
And in 1881, he publishes The Common Law. And
this is a big deal. It lands like a bomb. The
opening paragraph contains arguably the most
famous sentence in American legal literature.
The life of the law has not been logic. It has
been experience. Okay. The life of the law has
not been logic. It has been experience. Let's
dig into that mechanism. What does he actually
mean when he swaps logic for experience? He means
that judges aren't logic robots. They don't just
solve equations. He argues that the law is a
result of the felt necessities of the time, the
prevailing moral and political theories, public
policy, and even the prejudices which judges
share with their fellow men. OK, give me a concrete
example. How does a logic judge differ from an
experience judge? OK, let's take a simple contract
dispute. Imagine a merchant agrees to ship a
thousand barrels of flour by a certain date,
but a hurricane, an act of God. delays the ship.
A logic judge, Langdellian, might look at the
strict text of the contract, apply a rigid axiom
about absolute liability and say, you promised,
you didn't deliver, you're ruined. He would destroy
the merchant regardless of whether that makes
any sense for the shipping industry. Because
the rule is the rule. The logic is pure. Right.
But Holmes would look at experience, he'd ask.
What is the custom in the shipping business?
What does the community expect? What serves the
felt necessities of commerce? He might rule that
the storm excuses the delay because that's how
the real world operates. The law has to adapt.
So he's saying law isn't a suicide pact with
logic. It's a tool for governing real people.
That's the essence of it. He's admitting that
the law is made up. It's not sent from heaven.
It evolves as society evolves. If society wants
to burn witches, the law figures out a way to
burn witches. If society wants to build railroads,
the law creates rules to protect railroads. And
this leads to his bad man theory, which I think
is one of the most provocative ideas he ever
had. It is. It's from his essay, The Path of
the Law. Holmes poses a question. If you want
to know what the law is, not what it ought to
be, whose perspective should you take? And most
people would say the good man, the person who
wants to do what's right. Because a good man
looks to the law for moral guidance. But Holmes
says no. A good man has a conscience. He'll do
the right thing, even if there's no law against
it. He doesn't need the law to tell him not to
be a jerk. Okay, so who do we ask? If you want
to know what the law actually is, ask the bad
man. The bad man doesn't care about morality.
He doesn't care about your axioms or your high
-minded principles. He only cares about one thing.
If I do X, will the police take my money or put
me in jail? That's it. That is the question.
The bad man only cares about the material consequences
of his actions. So to Holmes, the law is just
a prediction. That is his literal definition.
The prophecies of what the courts will do in
fact, and nothing more pretentious, are what
I mean by the law. But wait, doesn't that encourage
people to be bad? If I tell you, hey, the law
isn't about right or wrong, it's just a calculation
of risk, aren't I basically telling a corporation,
go ahead and pollute the river as long as the
fine is cheaper than the filter? Holmes would
say, they're already doing that. He's not telling
them to do it. He's describing what is already
happening. He just wanted to strip the moralizing
language out of the law. He hated words like
malice or rights because they confuse us. They
blend law and morality. How so? Take the concept
of negligence. Imagine a workman is repairing
a roof. He throws a heavy wooden beam down into
the street below. He doesn't check to see if
anyone is there. Not a smart move. The beam hits
a passerby and kills them. Now, let's say the
workman is, in his heart, a gentle soul. He didn't
want to hurt anyone. He feels terrible. He just
wasn't thinking. A moralist might say he had
no malice, so it's just a tragic accident. But
the dead guy is still dead. Exactly. Holmes says
the law doesn't care about the workman's soul.
It creates an external objective standard, the
reasonable man. Okay. It asks one simple question.
Would a reasonable person have known that throwing
a heavy beam into a street is dangerous? If the
answer is yes, you are liable. Maybe you go to
jail. It doesn't matter if you're a saint internally.
The law judges external conduct, not internal
sin. It's the soldier again. The bullet doesn't
care if you're a nice guy. The law can't afford
to care either. Precisely. It's cold, it's objective,
and it's entirely focused on predictable consequences.
So this reputation, this legal realism, makes
him a superstar in the legal world. He sits on
the Massachusetts Supreme Court for 20 years.
And finally, in 1902, the call comes. Theodore
Roosevelt needs a Supreme Court justice. And
the politics here are fascinating. T .R. is a
force of nature. He's a progressive, he's a trust
buster, and he's an imperialist. He wants a judge
who aligns with his vision of a strong American
empire. And he looks at Holmes and sees what...
He looks at Holmes. The Civil War hero, the patriot,
to the guy who talks about duty and the power
of the state and thinks, that's my man, he gets
it. He thought he was hiring a political ally.
He thought he was hiring a rubber stamp for his
agenda. And boy, was he wrong. What happens?
Almost immediately, they clash in a massive case
called Northern Securities v. United States.
Explain the stakes here, because Northern Securities
sounds dry, but this was the Google or Amazon
antitrust case of its day. Huge stakes. Northern
Securities was a massive railroad monopoly controlled
by J .P. Morgan and other tycoons. They control
the entire transport infrastructure of the Northwest.
TR wanted to break them up to show that the government
was stronger than the corporations. This was
the centerpiece of his presidency. And he expects
Holmes to back him up. Go get him, Tiger. The
case is argued. The court rules 5 -4 in favor
of Roosevelt. And Holmes dissents. He votes against
the president. He votes against the president.
He looks at the Sherman Antitrust Act and says,
strictly as a legal matter, this law doesn't
ban this kind of stock ownership. These guys
found a loophole. It's not my job to close it.
It's Congress's job to write a better law. TR
must have been nuclear. He was apoplectic. Absolutely
furious. That's when he delivered the famous
line, I could carve out of a banana a judge with
more backbone than that. Backbone of a banana.
Wow. But the irony is, Holmes showed immense
backbone. He stood up to the president who appointed
him and the entire progressive movement because
his legal theory, read the text, don't invent
the law, demanded it. He wasn't a political player.
He was a legal professional. He was doing his
job as he saw it. And that independence brings
us to Lochner v. New York in 1905. This is the
case that made him a legend. It is the most famous
dissent in American history. No question. Set
the scene. Okay. New York passes a law saying
bakers cannot work more than 60 hours a week
or 10 hours a day. It was a public health measure.
Bakeries at the time were essentially Dungeons
flour dust coating the lungs, extreme heat from
the ovens. People were dying young. So the state
steps in to protect them seems reasonable. But
the bakery owners sue. They argue that the Constitution
protects liberty of contract. They say if a baker
wants to work 80 hours a week to make extra money,
the state has no right to stop him. That's his
liberty. And the Supreme Court majority agreed.
They bought that argument. They did. They struck
down the law. They said the 14th Amendment protects
your fundamental right to buy and sell labor
however you want. It was a huge victory for,
let's say, for capitalism. Yeah. This era of
the court is now called the Lochner era because
of it. And Holmes dissents. But. And I want to
be really clear on this. He doesn't dissent because
he feels sorry for the bakers. Right. This isn't
a bleeding heart moment for him. No. And this
is the aha moment for understanding Holmes. He
probably didn't care about the bakers at all.
He personally liked laissez -faire economics.
He privately thought the law was paternalistic
and silly. So why support it? Because of judicial
restraint. He believed in democracy, or at least
in the power of the majority. He wrote in his
dissent, the 14th Amendment does not enact Mr.
Herbert Spencer's social statics. Who was Herbert
Spencer? Spencer was a social Darwinist, the
ultimate champion of laissez -faire. So Holmes
is saying the Constitution is not a textbook
for one specific economic theory. It's a framework
for people of fundamentally differing views to
fight it out. It doesn't matter what I think.
It matters what the people of New York, through
their elected legislature, think. Exactly. Yeah.
He referred to the public privately as the crowd
or thick fingered clowns. He didn't respect their
intelligence, but he respected their power. If
the mob in New York elects a legislature and
that legislature wants a 60 hour work week and
the Constitution doesn't explicitly forbid it,
the judge needs to shut up and let them have
it. That is a fascinating nuance. He defends
the people's rights, not out of love for the
people, but out of a refusal to play God from
the bench. It's the bad man facing the majority.
He knows the majority has the power. The law
should reflect that power, not the judge's personal
economic theories. So for decades, this makes
him a hero to the left. He's the guy saying,
let the state regulate business. But that same
instinct, let the state do what it wants, gets
really complicated when we talk about free speech.
It does. And Holmes's evolution on free speech
is one of the most dramatic character arcs in
legal history because he did not start as a free
speech warrior. Not at all. No. Let's talk about
Schenck v. United States. 1919, World War I is
raging. The country is in a state of high anxiety
and patriotism. The government passes the Espionage
Act. It makes it a crime to, among other things,
obstruct the draft. Okay. Charles Schenck is
a socialist. He prints 15 ,000 leaflets telling
young men the draft is slavery. Do not submit
to intimidation. Assert your rights. So he's
not blowing up bridges. He's handing out pamphlets.
Correct. He's arrested. The case goes all the
way to the Supreme Court. And Holmes writes the
unanimous opinion. Upholding the conviction,
he sends Schenck to jail. Wait, the great dissenter,
the free speech guy, sends a guy to prison for
a pamphlet. He did. And this is where he coined
the phrase everyone knows but almost always misuses.
He wrote, the most stringent protection of free
speech would not protect a man in falsely shouting
fire in a theater and causing a panic. Everyone
quotes that, shouting fire in a crowded theater.
But they use it to defend free speech limits.
Holmes used it to jail a socialist for his political
opinion. Precisely. He formulated what became
known as the clear and present danger test. He
said, if your speech is of such a nature as to
create a clear and present danger of bringing
about substantive evils that Congress has a right
to prevent, like, say, stopping a draft in wartime,
then the First Amendment doesn't save you. It's
the soldier again. We are at war. You are hurting
the war effort. You go to jail. It's a very pragmatic,
non -idealistic view of speech. Yes. But then
the pivot happens. Yeah. And it happens incredibly
fast. Just months later, in late 1919, the court
hears Abrams v. United States. What are the facts
in Abrams? How are they different? Very similar.
On the surface, a group of Russian Jewish immigrants
in New York throw leaflets out of a factory window.
They are criticizing President Wilson for sending
American troops to Russia to fight the Bolsheviks.
They call for a general strike in munitions factories.
So more leaflets, a slightly different message.
Right. The majority of the court looks at Schenck,
looks at Abrams, and says, well, Holmes just
gave us the rule. This is a clear and present
danger. Guilty. 20 years in prison. 20 years.
20 years in federal prison for throwing leaflets
out a window. But this time, Holmes switches
sides. He dissents. Why? What changed in six
months? Two things, probably. First, the facts
were slightly different, and he saw the difference.
These guys were nobodies. Holmes called them
puny anonymities. He looked at their silly leaflet
and thought, this isn't a clear and present danger.
This isn't a threat. Nobody is listening to these
guys. The republic isn't going to collapse because
of some Russians in a loft. OK, so a difference
of degree. And the second thing. Intellectual
pressure. In the summer of 1919, Holmes was hanging
out with young progressive intellectuals like
Harold Lasky and, crucially, a Harvard law professor
named Zechariah Chafee. And Chafee had written
a very influential law review article criticizing
Holmes' reasoning and chink. So they basically
sat him down and said, hey, Ollie, you got this
one wrong. In a very polite, academic way, yes.
There's a story about a tea party where Chafee
gently cornered Holmes. He argued that free speech
wasn't just about the speaker's right. It was
about a social interest. Society needs to hear
all ideas. If you silence criticism, you lock
the country into error. You prevent society from
finding the truth. And Holmes, at age 78, listened.
He changed his mind. He listened. And in his
Abrams dissent, he writes what I consider the
greatest paragraph in Supreme Court history.
He completely reframes the First Amendment. He
introduces the marketplace of ideas. Can you
share some of it? He writes, when men have realized
that time has upset many fighting faiths, they
may come to believe. that the best test of truth
is the power of thought to get itself accepted
in the competition of the market, and that truth
is the only ground upon which their wishes safely
can be carried out. Time has upset many fighting
faiths. That line gives me chills. It goes all
the way back to the Civil War. He had a fighting
faith in 1861. The Confederates had a fighting
faith. He saw that history destroys absolute
certainty. So his logic becomes, since we can
never be 100 % sure we are right, we must allow
a free trade in ideas. So we have to let the
bad ideas into the market. Yes, because the only
way to prove the good ideas are actually good
is for them to survive the competition. We have
to tolerate speech we loathe. It's a defense
of liberty based on skepticism. It's not let
them speak because every voice is sacred. It's
let them speak because we might be wrong. Exactly.
It is humility born of trauma. The Constitution
is an experiment, he says, as all life is an
experiment. You have to let the experiment run,
even if it's dangerous. It's beautiful, it's
inspiring, but we promise a deep dive. And deep
dives have to look at the shadows. They do. We
have to talk about Buck v. Bell. We do. And this
is where the listener might want to brace themselves.
Because the same philosophy that gave us the
marketplace of ideas led Holmes to a very, very
dark place. The year is 1927. The eugenics movement
is, well, it's popular. It's mainstream among
the intellectual elite. It was considered settled
science by the elites at Harvard and Yale and
Stanford. The idea that we can breed better humans
and stop the unfit from reproducing was seen
as progressive. And the state of Virginia passes
a law allowing the state to forcibly sterilize
feeble -minded people in state institutions.
And they need a test case to make sure it's constitutional.
And their test case is a young woman named Carrie
Buck. Who was she? Carrie Buck was an inmate
in a state colony for epileptics and the feeble
-minded. The state claimed she was the daughter
of a feeble -minded mother and that she herself
had given birth to a feeble -minded, illegitimate
child. So they're arguing there's a pattern of
genetic defect. Yes. They wanted to cut her fallopian
tubes against her will to prevent her from passing
on her defective genes to a fourth generation.
But before we get to the ruling, we need to clarify.
The facts of the case were a complete lie, right?
A total fabrication. A sham. Historians later
uncovered the records. Carrie Buck was likely
of normal intelligence. She had been institutionalized
to hide the shame of being raped by a relative.
Her child, who the state's expert called feeble
-minded at eight months old, actually went on
to make the honor roll in elementary school before
dying young. The case was a setup to get a legal
green light. But the Supreme Court didn't know
that or didn't care to look too closely. They
took the record as it was presented to them.
So the question before the court is, can the
government surgically mutilate a citizen for
the benefit of the gene pool? The vote was 8
to 1, only one dissenter. And Oliver Wendell
Holmes Jr. wrote the majority opinion. He upheld
the sterilization. How does the man who protected
the puny anonymities in Abrams justify this?
It connects directly back to the soldier. It's
the same cold logic. Listen to his reasoning,
he wrote. We have seen more than once that the
public welfare may call upon the best citizens
for their lives. He's talking about the draft.
He's talking about Antietam. Yes. He's saying,
look, the state can force the best and brightest
young men to go die in the mud for the collective
good. If we can ask that ultimate sacrifice,
surely we can ask for a lesser sacrifice sterilization
from those who sap. The strength of the state.
That is, it's logically consistent, but it is
morally horrific. We can kill you for the state,
so we can definitely sterilize you. And then
he delivers the line, the one that stains his
legacy forever. Referring to Carrie Buck, her
mother, and her infant daughter, he wrote, Three
generations of imbeciles are enough. Three generations
of imbeciles are enough? It's so cruel, it sounds
like something a villain in a movie would say.
It is the bad man theory applied to biology.
It reveals the danger of his judicial restraint.
Remember Lochner? He said, if the majority wants
a law, let them have it. Well, the Virginia legislature
representing the majority wanted eugenics and
Holmes deferred to them. So he didn't see a natural
right to bodily integrity that trumped the state's
interest. He didn't believe in natural rights,
period. He believed in the power of the state
to ensure its own survival. But wait, hold on.
In Abrams, he protected the minority opinion
because we might be wrong. Why didn't he apply
that skepticism here? Why didn't he say, hey,
maybe our science about eugenics is wrong, so
we shouldn't do something irreversible to people?
That is the great contradiction, isn't it? When
it came to ideas, Holmes was a skeptic. He thought
ideas, even bad ones, couldn't hurt you immediately.
But when it came to biology and survival, he
was a scientific materialist. He looked at society
like an organism. If a limb is gangrenous, you
cut it off. He trusted the science of his day
way more than he trusted political speech. It
serves as a profound warning, doesn't it? If
you divorce law entirely from morality, if you
remove that sense of conscience, you can rationalize
atrocities with perfect, cold logic. You absolutely
can. Buck v. Bell is the shadow of legal realism.
It's what happens when you view humans merely
as biological inputs in a state machine. The
Nazis later cited Holmes' opinion at the Nuremberg
trials to defend their own sterilization programs.
That's horrifying. So, moving toward the end
of his life, the man just kept going. He stayed
on the court until he was 90 years old. He set
the record at the time. He became this wizened,
mustachioed sage of Washington. A living legend.
But he had one more gift for us. A very important
one. Silverthorne lumber. Ah, yes. 1920. The
Fruit of the Poisonous Tree. Sounds like a fantasy
novel title. What's it about? It's a crucial
Fourth Amendment doctrine. The feds had illegally
raided a lumber company without a warrant. They
seized all their papers, took them back to the
office, copied them, and then a court ordered
them to give the originals back. All right, so
the company gets its stuff back. Right, but the
government said, fine, we gave the papers back,
but we're going to use the copies we made to
prosecute you. So... We cheated, but we're keeping
the info we got from cheating. And Holmes, writing
for the court, said absolutely not. He ruled
that if the source of the evidence, the tree,
is tainted by an illegal search, then the evidence
you get from it, the food, is also tainted. You
can't use any of it in court. Why not? Because,
again, he's a cynic about power. He knew that
if you let the police benefit from breaking the
law, you are incentivizing them to break the
law. The only way to stop the bad man with a
badge is to make his cheating useless. It's incredible.
The father of modern free speech, the father
of the exclusionary rule, and the author of Buck
v. Bell. He retired in 1932. On his 90th birthday,
he gave a radio address to the nation. Which
is just wild in itself. Born in 1841, broadcasting
on the radio. He quoted a Latin poet about death.
Death plucks my ear and says, live, I am coming.
He was ready. He was not afraid. And when he
finally died in 1935, just days before his 94th
birthday, his executors went through his apartment,
and what they found really brings this whole
story full circle. In his closet, hanging there
after 70 years, they found his Civil War uniforms.
The ones from the 20th Massachusetts. Yes. They
were still stained with his own blood. They were
torn by the bullets from Balls Bluff and Antietam.
He had pinned a small piece of paper to them
with a note about the battles where he was wounded.
So he was the great dissenter, the Yankee from
Olympus, the great legal philosopher. But when
you strip it all away, he was always that soldier.
He was the soldier who survived when his friends
didn't. He viewed life as a war and law as the
rules of engagement for that war. He also left
his money to the U .S. government, didn't he?
He did. He left the bulk of his estate to the
United States. He famously said, taxes are what
we pay for civilized society. He believed in
the project of America, even if he thought its
citizens were thick fingered clowns. So let's
bring this home. What is the takeaway? How do
we synthesize this man? Holmes reinvented American
law. He smashed the old idea that law was a static
logical science and showed us it was a living,
breathing, messy thing born of experience. He
forced the law to look at the world as it is,
not as we wish it would be. But he also showed
us the danger. He showed us that experience without
a moral compass, without a belief in fundamental
human dignity, can lead directly to Buck v. Bell.
Correct. It's a double -edged sword. But I think
his greatest legacy is that question he poses
to all of us in his Abrams dissent. Time has
upset many fighting faiths. Think about that,
you, the listener. Think about the things you
are absolutely certain of today. The political
views you would scream at a stranger on the internet
over. The ideas you think are as solid as natural
law. Holmes asks, do you have the courage to
treat those beliefs as merely fighting faiths?
Can you admit that just maybe in 50 years the
marketplace of ideas might prove you were wrong?
It is a terrifying question. But in a polarized
world full of absolute certainty, it might be
the only question that can save us. And on that
note, we're going to wrap up this deep dive into
the life and mind of Oliver Wendell Holmes Jr.
it's a lot to process but that's why we do this
thanks for listening thank you