WEBVTT 00:00:00.000 --> 00:00:02.279 You know, whenever we picture the Supreme Court, 00:00:02.379 --> 00:00:05.040 the image is almost always the same. It's static. 00:00:05.400 --> 00:00:09.779 It's quiet. Very formal. It's nine people in 00:00:09.779 --> 00:00:13.960 black robes sitting in this marble temple, seemingly 00:00:13.960 --> 00:00:16.920 removed from the messy, dirty reality of regular 00:00:16.920 --> 00:00:19.420 life. Right. We imagine them operating on this 00:00:19.420 --> 00:00:22.079 high plane of pure logic, like they're solving 00:00:22.079 --> 00:00:24.820 a complex math problem where X equals justice. 00:00:25.449 --> 00:00:28.350 That is the popular mythology. The judge as the 00:00:28.350 --> 00:00:31.250 oracle channeling some divine word of the law, 00:00:31.370 --> 00:00:34.170 totally untouched by a human emotion or, you 00:00:34.170 --> 00:00:36.450 know, prejudice. Yes, exactly. But then you run 00:00:36.450 --> 00:00:39.009 headfirst into a guy like Oliver Wendell Holmes 00:00:39.009 --> 00:00:41.570 Jr. And if you just look at the sheer timeline 00:00:41.570 --> 00:00:44.929 of this man's life, it completely destroys that 00:00:44.929 --> 00:00:47.630 image of the static removed judge. Oh, it shatters 00:00:47.630 --> 00:00:49.429 it. I mean, the scope is actually hard to wrap 00:00:49.429 --> 00:00:51.369 your head around. We are talking about a human 00:00:51.369 --> 00:00:53.729 being who, through his father, was literally 00:00:53.729 --> 00:00:55.920 one degree of suffering. from John Quincy Adams. 00:00:56.060 --> 00:00:58.299 A founding father's son. Right. And yet he was 00:00:58.299 --> 00:01:00.600 still writing opinions and influencing law while 00:01:00.600 --> 00:01:02.679 Franklin Delano Roosevelt was rolling out the 00:01:02.679 --> 00:01:06.079 New Deal. It is a staggering bridge. He effectively 00:01:06.079 --> 00:01:08.939 spans the entire transformation of America. He 00:01:08.939 --> 00:01:10.959 starts in the era of the quill pen and the horse 00:01:10.959 --> 00:01:13.819 -drawn carriage amidst the chaotic, formative 00:01:13.819 --> 00:01:15.799 years of the early republic. And he finishes 00:01:15.799 --> 00:01:18.239 his career in the age of the telephone, the radio, 00:01:18.379 --> 00:01:21.920 and the industrial welfare state. And he didn't 00:01:21.920 --> 00:01:24.780 just live through it. He shaped it. He is arguably 00:01:24.780 --> 00:01:27.140 the most cited, most famous judge in American 00:01:27.140 --> 00:01:29.219 history. People call him the great dissenter. 00:01:29.480 --> 00:01:32.819 He's held up as a hero to progressives. But. 00:01:33.390 --> 00:01:35.090 And this is the thing that really hooked me when 00:01:35.090 --> 00:01:36.909 I started reading the source material. He is 00:01:36.909 --> 00:01:40.209 a walking, talking paradox. He is a massive ball 00:01:40.209 --> 00:01:42.189 of contradictions. He doesn't seem to fit into 00:01:42.189 --> 00:01:44.790 any modern political box at all. That is the 00:01:44.790 --> 00:01:46.390 most important thing to understand about him. 00:01:46.430 --> 00:01:50.030 If you try to label him a liberal or a conservative 00:01:50.030 --> 00:01:53.370 by today's standards, you will fail. It just 00:01:53.370 --> 00:01:55.250 doesn't work. Exactly. I mean, we're talking 00:01:55.250 --> 00:01:57.689 about a guy who is the godfather of free speech, 00:01:57.849 --> 00:02:00.030 the guy who basically invented the protections 00:02:00.030 --> 00:02:02.790 we rely on today. The marketplace of ideas. Yes. 00:02:02.810 --> 00:02:06.310 Yet he also wrote the opinion upholding the government's 00:02:06.310 --> 00:02:09.650 right to forcibly sterilize women. A truly chilling 00:02:09.650 --> 00:02:12.750 opinion. He's celebrated as a champion of the 00:02:12.750 --> 00:02:15.330 common man's right to pass laws. But personally, 00:02:15.569 --> 00:02:18.830 he was a cynical, aloof aristocrat who thought 00:02:18.830 --> 00:02:22.379 most people were. frankly, idiots. He had a very, 00:02:22.419 --> 00:02:24.139 very low opinion of the average intelligence, 00:02:24.479 --> 00:02:27.449 yes. He was not shy about that. And he didn't 00:02:27.449 --> 00:02:29.289 believe in natural rights, the idea that we're 00:02:29.289 --> 00:02:31.969 born with these God -given protections. Yet he's 00:02:31.969 --> 00:02:33.789 the reason we have so many of those protections 00:02:33.789 --> 00:02:36.430 enforced today. So I think the mission for this 00:02:36.430 --> 00:02:39.669 deep dive isn't just to list his cases. No, that 00:02:39.669 --> 00:02:41.409 would be missing the point. It's to figure out 00:02:41.409 --> 00:02:44.590 how these contradictions coexist. We want to 00:02:44.590 --> 00:02:47.389 understand how the physical, bloody trauma of 00:02:47.389 --> 00:02:50.530 the American Civil War took a young, starry -eyed 00:02:50.530 --> 00:02:53.969 idealist and hammered him into the most cold 00:02:53.969 --> 00:02:56.699 -blooded... realistic legal mind of the 20th 00:02:56.699 --> 00:02:59.340 century. It is fundamentally a story about trauma. 00:02:59.800 --> 00:03:02.479 You cannot understand his jurisprudence, his 00:03:02.479 --> 00:03:05.139 theory of law, without understanding the mud 00:03:05.139 --> 00:03:07.520 and the blood of 1862. So the war didn't just 00:03:07.520 --> 00:03:09.800 change his personality. No, it changed the way 00:03:09.800 --> 00:03:12.280 he viewed the entire concept of truth. It changed 00:03:12.280 --> 00:03:14.460 his whole philosophy of life. So let's unpack 00:03:14.460 --> 00:03:18.699 this life. We've got... biographies legal opinions 00:03:18.699 --> 00:03:21.979 his personal letters which are incredibly revealing 00:03:21.979 --> 00:03:23.819 by the way they really are he was a phenomenal 00:03:23.819 --> 00:03:26.099 writer where do we even start with a character 00:03:26.099 --> 00:03:28.719 like this to understand the fall you have to 00:03:28.719 --> 00:03:31.199 understand the height from which he fell we have 00:03:31.199 --> 00:03:35.379 to start in boston specifically in 1841 Holmes 00:03:35.379 --> 00:03:38.259 wasn't just born into a good family. He was born 00:03:38.259 --> 00:03:41.819 into the absolute apex of the Boston Brahmin 00:03:41.819 --> 00:03:44.620 society. The Brahmins. OK, so these are the old 00:03:44.620 --> 00:03:48.340 money intellectual elite. The absolute top of 00:03:48.340 --> 00:03:50.860 the social and intellectual pyramid. The people 00:03:50.860 --> 00:03:53.340 who thought Boston was the hub of the solar system. 00:03:53.379 --> 00:03:56.219 And his father, Oliver Wendell Holmes Sr., was 00:03:56.219 --> 00:03:58.520 essentially the sun at the center of that hub. 00:03:58.639 --> 00:04:01.169 A perfect way to put it. He was a physician, 00:04:01.330 --> 00:04:04.270 but more fantasily, he was a poet and a celebrity 00:04:04.270 --> 00:04:07.009 intellectual. He wrote The Autocrat of the Breakfast 00:04:07.009 --> 00:04:08.810 Table, which was one of the most popular books 00:04:08.810 --> 00:04:11.270 of the entire era. Wow. Imagine growing up in 00:04:11.270 --> 00:04:13.030 a house where your dad is nationally known as 00:04:13.030 --> 00:04:15.069 the autocrat. It has to do something to your 00:04:15.069 --> 00:04:17.069 ego, right? I would think so. It was a household 00:04:17.069 --> 00:04:21.009 of immense pressure and immense idealism. The 00:04:21.009 --> 00:04:23.050 family friends weren't just neighbors. They were 00:04:23.050 --> 00:04:25.970 the giants of American thought. Like who? Well, 00:04:26.069 --> 00:04:28.850 Henry James Sr., for one. And, of course, the 00:04:28.850 --> 00:04:32.579 big one. Ralph Waldo Emerson, young Wendell, 00:04:32.660 --> 00:04:34.579 that's what the family called him, grew up swimming 00:04:34.579 --> 00:04:36.920 in the waters of transcendentalism. Okay, give 00:04:36.920 --> 00:04:38.939 us the quick refresher on transcendentalism. 00:04:38.959 --> 00:04:41.379 It's more than just nature walks, I assume. Laugh 00:04:41.379 --> 00:04:45.160 a bit. In this context, it was a belief in the 00:04:45.160 --> 00:04:49.339 inherent goodness of people and nature. Ideally, 00:04:49.339 --> 00:04:52.000 they believed in natural law. Capital N, capital 00:04:52.000 --> 00:04:54.759 O. Exactly. They believed that there were universal 00:04:54.759 --> 00:04:57.519 moral truths, truth with a capital T that govern 00:04:57.519 --> 00:04:59.839 the universe, and that if you were smart enough 00:04:59.839 --> 00:05:02.100 and moral enough, you could discover them. It 00:05:02.100 --> 00:05:05.079 was a world of high moral philosophy and really... 00:05:05.389 --> 00:05:08.209 deep optimism. So he's a young man, incredibly 00:05:08.209 --> 00:05:10.889 smart, ambitious, and he's taught that the world 00:05:10.889 --> 00:05:13.310 makes sense. It operates on moral rules. And 00:05:13.310 --> 00:05:15.970 he was cocky, too. There's a fantastic anecdote 00:05:15.970 --> 00:05:18.470 from his undergraduate days in Harvard. He writes 00:05:18.470 --> 00:05:21.069 an essay criticizing Plato. Bold move for a college 00:05:21.069 --> 00:05:24.250 kid. It is. Now, remember, Plato is the foundation 00:05:24.250 --> 00:05:27.949 of idealist philosophy. He's the ultimate idealist. 00:05:28.029 --> 00:05:30.889 And Holmes, being a bold undergraduate, decides 00:05:30.889 --> 00:05:33.959 to take him on. He takes this essay to the family 00:05:33.959 --> 00:05:36.779 friend Ralph Waldo Emerson, probably expecting 00:05:36.779 --> 00:05:39.279 a pat on the head. Look, Mr. Emerson, I took 00:05:39.279 --> 00:05:42.639 down Plato. Basically. And Emerson reads it, 00:05:42.699 --> 00:05:44.740 looks at this young man, and delivers one of 00:05:44.740 --> 00:05:47.399 the coldest lines in literary history. He says, 00:05:47.480 --> 00:05:50.060 when you strike at a king, you must kill him. 00:05:50.399 --> 00:05:53.839 Ouch. That's not good effort, Wendell. You missed, 00:05:53.959 --> 00:05:56.420 kid. Don't even try. It was a lesson in humility, 00:05:56.639 --> 00:05:59.790 but it also shows Holmes' nature. He wanted to 00:05:59.790 --> 00:06:02.610 slay dragons. He was an abolitionist in his youth, 00:06:02.730 --> 00:06:05.769 a fervent one. So he had that fire, that belief. 00:06:06.149 --> 00:06:08.449 He did. He served as a bodyguard for Wendell 00:06:08.449 --> 00:06:10.870 Phillips, the radical abolitionist, during dangerous 00:06:10.870 --> 00:06:13.470 protests in Boston. He was filled with what he 00:06:13.470 --> 00:06:16.209 would later call fighting faith. He believed 00:06:16.209 --> 00:06:18.529 the North was right, the South was wrong, and 00:06:18.529 --> 00:06:20.009 that the universe cared about the difference. 00:06:20.269 --> 00:06:21.990 And then the universe showed him it didn't care 00:06:21.990 --> 00:06:26.329 at all. The Civil War starts. April 1861. Fort 00:06:26.329 --> 00:06:29.910 Sumter. Lincoln calls for volunteers. Holmes 00:06:29.910 --> 00:06:32.009 is fresh out of Harvard, full of that Brahmin 00:06:32.009 --> 00:06:34.889 idealism, and he immediately commissions in the 00:06:34.889 --> 00:06:37.550 20th Massachusetts Volunteer Infantry. And we 00:06:37.550 --> 00:06:39.810 need to pause on the 20th Massachusetts. This 00:06:39.810 --> 00:06:41.790 wasn't just a random assortment of guys. No, 00:06:41.810 --> 00:06:43.850 not at all. It was known as the Harvard Regiment. 00:06:44.089 --> 00:06:46.410 These were the sons of the elite. These were 00:06:46.410 --> 00:06:49.149 his classmates, his cousins, the golden boys 00:06:49.149 --> 00:06:51.509 of Boston society. So they all marched off together. 00:06:51.810 --> 00:06:53.629 We marched off to war, thinking it would be a 00:06:53.629 --> 00:06:57.399 noble crusade. A glorious adventure. They had 00:06:57.399 --> 00:06:58.980 no idea they were walking into a meat grinder. 00:06:59.160 --> 00:07:01.620 And Holmes, he didn't get a desk job. He didn't 00:07:01.620 --> 00:07:04.060 get a safe staff position because of his dad's 00:07:04.060 --> 00:07:06.839 fame. Far from it. He was a line officer. He 00:07:06.839 --> 00:07:08.939 was in the thick of it from day one. And when 00:07:08.939 --> 00:07:11.300 we say trauma, I want to be specific because 00:07:11.300 --> 00:07:13.879 the textbooks often just gloss over this. Holmes 00:07:13.879 --> 00:07:16.819 was wounded three separate times. And these weren't 00:07:16.819 --> 00:07:18.480 grazes. Okay, let's walk through them because 00:07:18.480 --> 00:07:20.420 I think the physical reality of this is what 00:07:20.420 --> 00:07:22.360 breaks his idealism. You can't just read about 00:07:22.360 --> 00:07:24.310 this. You have to feel it. The first was the 00:07:24.310 --> 00:07:28.610 Battle of Balls Bluff in October 1861. It was 00:07:28.610 --> 00:07:31.149 a tactical disaster for the Union, a total rout. 00:07:31.410 --> 00:07:33.209 They were backed up against a river, getting 00:07:33.209 --> 00:07:35.569 slaughtered. And Holmes is right there. In the 00:07:35.569 --> 00:07:38.129 middle of it. He takes a bullet directly in the 00:07:38.129 --> 00:07:40.750 chest. In the chest. It entered his chest, missed 00:07:40.750 --> 00:07:42.769 his heart by a fraction of an inch, and passed 00:07:42.769 --> 00:07:45.370 through. He fell to the ground, coughing up blood. 00:07:45.569 --> 00:07:47.649 He must have thought that was it. He did. He 00:07:47.649 --> 00:07:50.410 was dragged to a boat to be evacuated. He later 00:07:50.410 --> 00:07:52.569 wrote about lying there, convinced he was dying. 00:07:52.889 --> 00:07:55.269 and clinically checking his own pulse, wondering 00:07:55.269 --> 00:07:57.170 what the transition to the other side would feel 00:07:57.170 --> 00:07:59.709 like. How old is he? He was 20 years old. Wow. 00:08:00.110 --> 00:08:03.149 And that's the first one. He recovers, which 00:08:03.149 --> 00:08:05.689 is a miracle in itself, given 1860s medicine, 00:08:05.870 --> 00:08:08.029 and he goes back. He goes back. He feels it's 00:08:08.029 --> 00:08:12.430 his duty. September 1862, Antietam. The single 00:08:12.430 --> 00:08:15.069 bloodiest day in American history. The 20th Massachusetts 00:08:15.069 --> 00:08:17.029 is maneuvering through the famous cornfield. 00:08:17.290 --> 00:08:21.629 It's just... Chaos. Smoke, noise, bodies piling 00:08:21.629 --> 00:08:23.529 up everywhere. And Holmes is shot through the 00:08:23.529 --> 00:08:26.850 neck. The neck. I mean, the psychological impact 00:08:26.850 --> 00:08:28.990 of that. You survive a chest wound, you go back, 00:08:29.069 --> 00:08:31.129 and almost immediately you get hit in the throat. 00:08:31.290 --> 00:08:34.029 The bullet passed right through. He carried the 00:08:34.029 --> 00:08:36.149 actual bullet with him for the rest of his life. 00:08:36.470 --> 00:08:39.129 He scrawled the letter home in pencil, stained, 00:08:39.409 --> 00:08:43.350 saying, I am not dead yet. Unbelievable. But 00:08:43.350 --> 00:08:45.809 the recovery was brutal. They treated the wound 00:08:45.809 --> 00:08:48.710 with iodine. which was agonizing. He couldn't 00:08:48.710 --> 00:08:50.809 speak. He just lay there in a field hospital 00:08:50.809 --> 00:08:53.429 watching the casualty list come in, seeing the 00:08:53.429 --> 00:08:55.730 names of his friends, the boys he grew up with, 00:08:55.809 --> 00:08:58.289 being crossed off one by one. And yet he goes 00:08:58.289 --> 00:09:01.110 back again. He does. Chancellorsville, 1863. 00:09:01.429 --> 00:09:04.490 This time, he's shot in the heel. His foot is 00:09:04.490 --> 00:09:07.509 mangled. And while that sounds less lethal, the 00:09:07.509 --> 00:09:10.399 infection risk was enormous. Gangrene was a death 00:09:10.399 --> 00:09:12.279 sentence. So it's not just the wounds, it's the 00:09:12.279 --> 00:09:14.840 constant threat of disease. On top of the bullets, 00:09:14.919 --> 00:09:17.059 he suffered a near -fatal case of dysentery. 00:09:17.460 --> 00:09:19.960 He's essentially wasting away for a time. He 00:09:19.960 --> 00:09:21.879 watched his best friend in the regiment, Henry 00:09:21.879 --> 00:09:24.419 Abbott, take command and then get killed. He 00:09:24.419 --> 00:09:27.220 saw the Harvard regiment decimated. Over half 00:09:27.220 --> 00:09:29.240 the officers he started with were dead. This 00:09:29.240 --> 00:09:31.519 is the crucible. You go in believing in natural 00:09:31.519 --> 00:09:34.639 law and truth, and you spend three years seeing 00:09:34.639 --> 00:09:37.519 that bullets don't care about truth. They don't 00:09:37.519 --> 00:09:40.279 swerve for the righteous. That is exactly the 00:09:40.279 --> 00:09:42.919 lesson he took away. It killed the idealist. 00:09:42.960 --> 00:09:45.679 It burned it out of him. He realized that natural 00:09:45.679 --> 00:09:48.559 law is a fantasy. In the cornfield at Antietam, 00:09:48.580 --> 00:09:52.120 there was no higher moral order. There was only 00:09:52.120 --> 00:09:55.220 force. There was only power. Exactly. The side 00:09:55.220 --> 00:09:57.700 that won wasn't the side with the better arguments 00:09:57.700 --> 00:10:00.700 or the holier cause. It was the side that could 00:10:00.700 --> 00:10:02.960 mobilize more men and kill more people. Full 00:10:02.960 --> 00:10:05.649 stop. It sounds incredibly bleak. It sounds like 00:10:05.649 --> 00:10:08.230 he became a nihilist. Not a nihilist, but a profound 00:10:08.230 --> 00:10:11.909 skeptic. A realist in the starkest sense. He 00:10:11.909 --> 00:10:14.110 came to believe that what we call rights or morality 00:10:14.110 --> 00:10:16.250 are just the preferences of the people who have 00:10:16.250 --> 00:10:18.289 the power to enforce them. The winners. Winners 00:10:18.289 --> 00:10:20.809 write the law. Years later, he gave a speech 00:10:20.809 --> 00:10:24.230 called The Soldier's Faith. It is haunting. He 00:10:24.230 --> 00:10:26.450 talks about the experience of war not as a crusade 00:10:26.450 --> 00:10:29.779 for justice, but as throwing away life. in obedience 00:10:29.779 --> 00:10:32.679 to a blindly accepted duty for a cause one little 00:10:32.679 --> 00:10:37.240 understands blindly accepted duty that's terrifying 00:10:37.240 --> 00:10:41.240 it's not i fought to free the slaves it's i fought 00:10:41.240 --> 00:10:43.340 because i was standing in a line and i didn't 00:10:43.340 --> 00:10:46.259 run away correct he replaced morality with duty 00:10:46.259 --> 00:10:49.000 he decided that since you can't know the ultimate 00:10:49.000 --> 00:10:51.500 truth of the universe the only honorable thing 00:10:51.500 --> 00:10:54.299 to do is to do your job to be a professional 00:10:54.299 --> 00:10:57.159 to execute the will of the sovereign whether 00:10:57.159 --> 00:11:00.419 that sovereign is a general or later the majority 00:11:00.419 --> 00:11:02.700 of voters, without asking too many questions 00:11:02.700 --> 00:11:05.679 about whether it's right in a cosmic sense. It's 00:11:05.679 --> 00:11:07.820 just about function, doing the task at hand. 00:11:08.080 --> 00:11:10.299 Precisely. Before we see how that shaped his 00:11:10.299 --> 00:11:12.340 law career, we have to touch on the Lincoln story. 00:11:12.799 --> 00:11:14.980 Because it's the only time these two massive 00:11:14.980 --> 00:11:17.539 figures intersect, and it's just, it's wild. 00:11:17.899 --> 00:11:20.419 It is part of the Holmes legend. So, the Battle 00:11:20.419 --> 00:11:23.600 of Fort Stevens, 1864. The Confederates, under 00:11:23.600 --> 00:11:26.440 Jubal Early, launch a surprise raid and actually 00:11:26.440 --> 00:11:29.379 get within sight. of the Capitol Dome. The war 00:11:29.379 --> 00:11:31.480 was almost over and suddenly the Confederates 00:11:31.480 --> 00:11:33.980 are at the gates of Washington. The city is in 00:11:33.980 --> 00:11:36.600 a panic and President Lincoln rides out to the 00:11:36.600 --> 00:11:38.740 fortifications to inspect the defense. He's the 00:11:38.740 --> 00:11:41.139 only sitting president to come under enemy fire. 00:11:41.200 --> 00:11:45.039 Yes. And he's not exactly subtle. He stands up 00:11:45.039 --> 00:11:47.980 on a parapet. He's six foot four wearing a stovepipe 00:11:47.980 --> 00:11:50.720 hat. He's the most obvious target in the history 00:11:50.720 --> 00:11:53.379 of warfare. Like a carnival game. And bullets 00:11:53.379 --> 00:11:56.759 are thwacking into the wood around him. A surgeon 00:11:56.759 --> 00:11:59.799 standing just near him gets hit. It's an insane 00:11:59.799 --> 00:12:02.120 situation. And Holmes is there. Holmes is the 00:12:02.120 --> 00:12:04.240 young staff officer by this point. Yeah. And 00:12:04.240 --> 00:12:07.320 the story goes that he sees this tall idiot standing 00:12:07.320 --> 00:12:09.779 in the line of fire, doesn't realize it's the 00:12:09.779 --> 00:12:12.360 president, and shouts, get down, you damn fool. 00:12:12.919 --> 00:12:15.879 Can you imagine? You're a 23 -year -old kid and 00:12:15.879 --> 00:12:19.000 you scream, you damn fool, at Abraham Lincoln. 00:12:19.120 --> 00:12:22.259 And the legend says Lincoln got down, looked 00:12:22.259 --> 00:12:24.379 at him and said something like, Captain? I'm 00:12:24.379 --> 00:12:26.899 glad you know how to talk to a civilian. Now, 00:12:26.919 --> 00:12:28.559 we have to be historically responsible here. 00:12:28.700 --> 00:12:31.220 OK, what's the fact check? Holmes was a bit cagey 00:12:31.220 --> 00:12:32.960 about this later in life. Sometimes he said he 00:12:32.960 --> 00:12:34.740 shouted it. Sometimes he said someone else shouted 00:12:34.740 --> 00:12:37.019 it. Sometimes he implied he just wished he had 00:12:37.019 --> 00:12:39.799 shouted it. Other sources suggest he might not 00:12:39.799 --> 00:12:41.159 have even been at that part of the fort that 00:12:41.159 --> 00:12:44.240 day. Look. If I'm 90 years old and people ask 00:12:44.240 --> 00:12:46.379 if I saved Lincoln's life by calling him a damn 00:12:46.379 --> 00:12:49.360 fool, I'm saying yes. He certainly didn't deny 00:12:49.360 --> 00:12:52.220 it too hard in his later years. But, true or 00:12:52.220 --> 00:12:55.299 not, the image captures the essence of Holmes. 00:12:55.799 --> 00:12:58.600 He respected the office, but he saw the man, 00:12:58.820 --> 00:13:01.860 even the great emancipator, as just another organism 00:13:01.860 --> 00:13:04.759 vulnerable to a bullet. Right. It reinforces 00:13:04.759 --> 00:13:07.039 that fragility of authority. Even the king can 00:13:07.039 --> 00:13:09.240 be killed if he stands in the wrong spot. And 00:13:09.240 --> 00:13:11.929 in war... Everyone is standing in the wrong spot. 00:13:12.090 --> 00:13:15.429 So the war ends. Holmes survives. He goes back 00:13:15.429 --> 00:13:17.909 to Boston, traumatized, hardened, and needing 00:13:17.909 --> 00:13:20.750 a job. He considers philosophy. He debates with 00:13:20.750 --> 00:13:23.070 his friend William James, the great pragmatist 00:13:23.070 --> 00:13:25.950 philosopher. But his father, the autocrat, steps 00:13:25.950 --> 00:13:28.649 in again. Holmes famously said his father kicked 00:13:28.649 --> 00:13:30.490 him into the law. Didn't think it was a worthy 00:13:30.490 --> 00:13:32.370 profession. His father didn't think Holmes could 00:13:32.370 --> 00:13:34.549 make a living in philosophy. So he goes to Harvard 00:13:34.549 --> 00:13:36.710 Law School. And this is where the conflict starts, 00:13:36.850 --> 00:13:39.269 because the way law was taught back then was, 00:13:39.450 --> 00:13:41.889 well, it wasn't what Holmes experienced in the 00:13:41.889 --> 00:13:44.629 mud. It was the absolute antithesis of the mud. 00:13:45.169 --> 00:13:47.750 The dominant figure in legal education at the 00:13:47.750 --> 00:13:50.629 time was Christopher Columbus Langdell, the dean 00:13:50.629 --> 00:13:53.490 of Harvard Law. Okay. And Langdell viewed law 00:13:53.490 --> 00:13:56.509 as a hard science, almost like geometry or botany. 00:13:56.649 --> 00:13:58.750 He believed there were a set number of legal 00:13:58.750 --> 00:14:01.769 axioms or principles. If you learned the axioms 00:14:01.769 --> 00:14:03.830 and applied pure logic, you would always get 00:14:03.830 --> 00:14:07.009 the right answer. Every time. So A plus B equals 00:14:07.009 --> 00:14:09.889 justice. It's a closed system. It's clean. Exactly. 00:14:09.889 --> 00:14:12.590 It was called the case method. But the point 00:14:12.590 --> 00:14:15.549 was to distill these pure, timeless rules from 00:14:15.549 --> 00:14:18.669 the cases. If a real world case didn't fit the 00:14:18.669 --> 00:14:21.330 logic, Langdell would say the case was wrongly 00:14:21.330 --> 00:14:23.629 decided. Not that his theory was wrong. The world 00:14:23.629 --> 00:14:26.090 is messy. The logic is pure. It was beautiful. 00:14:26.669 --> 00:14:29.269 elegant, and completely detached from reality. 00:14:29.509 --> 00:14:32.049 And Holmes looks at this and says, this is garbage. 00:14:32.309 --> 00:14:34.169 He looks at it and says, this isn't how the world 00:14:34.169 --> 00:14:36.710 works. He saw it as a kind of intellectual fantasy. 00:14:37.009 --> 00:14:39.590 He spends his evenings grinding away, reading 00:14:39.590 --> 00:14:41.529 historical law reports going back centuries. 00:14:41.750 --> 00:14:45.289 And in 1881, he publishes The Common Law. And 00:14:45.289 --> 00:14:48.370 this is a big deal. It lands like a bomb. The 00:14:48.370 --> 00:14:50.750 opening paragraph contains arguably the most 00:14:50.750 --> 00:14:52.909 famous sentence in American legal literature. 00:14:53.289 --> 00:14:56.629 The life of the law has not been logic. It has 00:14:56.629 --> 00:14:59.909 been experience. Okay. The life of the law has 00:14:59.909 --> 00:15:03.509 not been logic. It has been experience. Let's 00:15:03.509 --> 00:15:05.370 dig into that mechanism. What does he actually 00:15:05.370 --> 00:15:09.409 mean when he swaps logic for experience? He means 00:15:09.409 --> 00:15:12.210 that judges aren't logic robots. They don't just 00:15:12.210 --> 00:15:14.970 solve equations. He argues that the law is a 00:15:14.970 --> 00:15:17.889 result of the felt necessities of the time, the 00:15:17.889 --> 00:15:20.070 prevailing moral and political theories, public 00:15:20.070 --> 00:15:22.610 policy, and even the prejudices which judges 00:15:22.610 --> 00:15:24.909 share with their fellow men. OK, give me a concrete 00:15:24.909 --> 00:15:27.769 example. How does a logic judge differ from an 00:15:27.769 --> 00:15:30.029 experience judge? OK, let's take a simple contract 00:15:30.029 --> 00:15:32.610 dispute. Imagine a merchant agrees to ship a 00:15:32.610 --> 00:15:34.789 thousand barrels of flour by a certain date, 00:15:34.889 --> 00:15:38.309 but a hurricane, an act of God. delays the ship. 00:15:38.370 --> 00:15:41.549 A logic judge, Langdellian, might look at the 00:15:41.549 --> 00:15:44.210 strict text of the contract, apply a rigid axiom 00:15:44.210 --> 00:15:47.090 about absolute liability and say, you promised, 00:15:47.250 --> 00:15:49.230 you didn't deliver, you're ruined. He would destroy 00:15:49.230 --> 00:15:51.009 the merchant regardless of whether that makes 00:15:51.009 --> 00:15:52.629 any sense for the shipping industry. Because 00:15:52.629 --> 00:15:55.429 the rule is the rule. The logic is pure. Right. 00:15:55.529 --> 00:15:58.110 But Holmes would look at experience, he'd ask. 00:15:58.389 --> 00:16:00.450 What is the custom in the shipping business? 00:16:00.710 --> 00:16:03.610 What does the community expect? What serves the 00:16:03.610 --> 00:16:07.049 felt necessities of commerce? He might rule that 00:16:07.049 --> 00:16:09.889 the storm excuses the delay because that's how 00:16:09.889 --> 00:16:12.690 the real world operates. The law has to adapt. 00:16:13.070 --> 00:16:15.750 So he's saying law isn't a suicide pact with 00:16:15.750 --> 00:16:18.970 logic. It's a tool for governing real people. 00:16:19.190 --> 00:16:21.289 That's the essence of it. He's admitting that 00:16:21.289 --> 00:16:23.309 the law is made up. It's not sent from heaven. 00:16:23.389 --> 00:16:26.509 It evolves as society evolves. If society wants 00:16:26.509 --> 00:16:28.990 to burn witches, the law figures out a way to 00:16:28.990 --> 00:16:31.669 burn witches. If society wants to build railroads, 00:16:31.809 --> 00:16:34.850 the law creates rules to protect railroads. And 00:16:34.850 --> 00:16:37.190 this leads to his bad man theory, which I think 00:16:37.190 --> 00:16:39.070 is one of the most provocative ideas he ever 00:16:39.070 --> 00:16:41.149 had. It is. It's from his essay, The Path of 00:16:41.149 --> 00:16:44.309 the Law. Holmes poses a question. If you want 00:16:44.309 --> 00:16:46.370 to know what the law is, not what it ought to 00:16:46.370 --> 00:16:48.809 be, whose perspective should you take? And most 00:16:48.809 --> 00:16:51.450 people would say the good man, the person who 00:16:51.450 --> 00:16:53.529 wants to do what's right. Because a good man 00:16:53.529 --> 00:16:56.970 looks to the law for moral guidance. But Holmes 00:16:56.970 --> 00:17:00.529 says no. A good man has a conscience. He'll do 00:17:00.529 --> 00:17:02.610 the right thing, even if there's no law against 00:17:02.610 --> 00:17:05.190 it. He doesn't need the law to tell him not to 00:17:05.190 --> 00:17:07.910 be a jerk. Okay, so who do we ask? If you want 00:17:07.910 --> 00:17:10.009 to know what the law actually is, ask the bad 00:17:10.009 --> 00:17:13.069 man. The bad man doesn't care about morality. 00:17:13.410 --> 00:17:15.690 He doesn't care about your axioms or your high 00:17:15.690 --> 00:17:18.809 -minded principles. He only cares about one thing. 00:17:19.150 --> 00:17:22.190 If I do X, will the police take my money or put 00:17:22.190 --> 00:17:24.609 me in jail? That's it. That is the question. 00:17:24.730 --> 00:17:27.410 The bad man only cares about the material consequences 00:17:27.410 --> 00:17:30.549 of his actions. So to Holmes, the law is just 00:17:30.549 --> 00:17:33.049 a prediction. That is his literal definition. 00:17:33.329 --> 00:17:35.829 The prophecies of what the courts will do in 00:17:35.829 --> 00:17:38.250 fact, and nothing more pretentious, are what 00:17:38.250 --> 00:17:40.289 I mean by the law. But wait, doesn't that encourage 00:17:40.289 --> 00:17:42.269 people to be bad? If I tell you, hey, the law 00:17:42.269 --> 00:17:43.930 isn't about right or wrong, it's just a calculation 00:17:43.930 --> 00:17:46.029 of risk, aren't I basically telling a corporation, 00:17:46.349 --> 00:17:48.690 go ahead and pollute the river as long as the 00:17:48.690 --> 00:17:50.829 fine is cheaper than the filter? Holmes would 00:17:50.829 --> 00:17:53.299 say, they're already doing that. He's not telling 00:17:53.299 --> 00:17:55.059 them to do it. He's describing what is already 00:17:55.059 --> 00:17:57.880 happening. He just wanted to strip the moralizing 00:17:57.880 --> 00:18:00.220 language out of the law. He hated words like 00:18:00.220 --> 00:18:03.160 malice or rights because they confuse us. They 00:18:03.160 --> 00:18:06.559 blend law and morality. How so? Take the concept 00:18:06.559 --> 00:18:09.420 of negligence. Imagine a workman is repairing 00:18:09.420 --> 00:18:12.420 a roof. He throws a heavy wooden beam down into 00:18:12.420 --> 00:18:14.619 the street below. He doesn't check to see if 00:18:14.619 --> 00:18:18.200 anyone is there. Not a smart move. The beam hits 00:18:18.200 --> 00:18:21.240 a passerby and kills them. Now, let's say the 00:18:21.240 --> 00:18:24.519 workman is, in his heart, a gentle soul. He didn't 00:18:24.519 --> 00:18:26.299 want to hurt anyone. He feels terrible. He just 00:18:26.299 --> 00:18:28.980 wasn't thinking. A moralist might say he had 00:18:28.980 --> 00:18:31.160 no malice, so it's just a tragic accident. But 00:18:31.160 --> 00:18:33.700 the dead guy is still dead. Exactly. Holmes says 00:18:33.700 --> 00:18:35.460 the law doesn't care about the workman's soul. 00:18:35.599 --> 00:18:37.700 It creates an external objective standard, the 00:18:37.700 --> 00:18:40.180 reasonable man. Okay. It asks one simple question. 00:18:40.359 --> 00:18:42.759 Would a reasonable person have known that throwing 00:18:42.759 --> 00:18:45.750 a heavy beam into a street is dangerous? If the 00:18:45.750 --> 00:18:48.170 answer is yes, you are liable. Maybe you go to 00:18:48.170 --> 00:18:50.670 jail. It doesn't matter if you're a saint internally. 00:18:50.990 --> 00:18:53.950 The law judges external conduct, not internal 00:18:53.950 --> 00:18:56.869 sin. It's the soldier again. The bullet doesn't 00:18:56.869 --> 00:18:59.230 care if you're a nice guy. The law can't afford 00:18:59.230 --> 00:19:02.250 to care either. Precisely. It's cold, it's objective, 00:19:02.549 --> 00:19:04.990 and it's entirely focused on predictable consequences. 00:19:05.410 --> 00:19:09.369 So this reputation, this legal realism, makes 00:19:09.369 --> 00:19:12.329 him a superstar in the legal world. He sits on 00:19:12.329 --> 00:19:14.269 the Massachusetts Supreme Court for 20 years. 00:19:15.180 --> 00:19:18.920 And finally, in 1902, the call comes. Theodore 00:19:18.920 --> 00:19:20.980 Roosevelt needs a Supreme Court justice. And 00:19:20.980 --> 00:19:23.579 the politics here are fascinating. T .R. is a 00:19:23.579 --> 00:19:26.160 force of nature. He's a progressive, he's a trust 00:19:26.160 --> 00:19:29.359 buster, and he's an imperialist. He wants a judge 00:19:29.359 --> 00:19:31.420 who aligns with his vision of a strong American 00:19:31.420 --> 00:19:34.160 empire. And he looks at Holmes and sees what... 00:19:34.160 --> 00:19:36.670 He looks at Holmes. The Civil War hero, the patriot, 00:19:36.890 --> 00:19:38.730 to the guy who talks about duty and the power 00:19:38.730 --> 00:19:41.069 of the state and thinks, that's my man, he gets 00:19:41.069 --> 00:19:43.170 it. He thought he was hiring a political ally. 00:19:43.410 --> 00:19:45.410 He thought he was hiring a rubber stamp for his 00:19:45.410 --> 00:19:48.029 agenda. And boy, was he wrong. What happens? 00:19:48.490 --> 00:19:50.930 Almost immediately, they clash in a massive case 00:19:50.930 --> 00:19:53.990 called Northern Securities v. United States. 00:19:54.309 --> 00:19:56.890 Explain the stakes here, because Northern Securities 00:19:56.890 --> 00:20:00.049 sounds dry, but this was the Google or Amazon 00:20:00.049 --> 00:20:03.779 antitrust case of its day. Huge stakes. Northern 00:20:03.779 --> 00:20:06.559 Securities was a massive railroad monopoly controlled 00:20:06.559 --> 00:20:09.359 by J .P. Morgan and other tycoons. They control 00:20:09.359 --> 00:20:12.140 the entire transport infrastructure of the Northwest. 00:20:13.079 --> 00:20:15.759 TR wanted to break them up to show that the government 00:20:15.759 --> 00:20:18.640 was stronger than the corporations. This was 00:20:18.640 --> 00:20:21.000 the centerpiece of his presidency. And he expects 00:20:21.000 --> 00:20:23.119 Holmes to back him up. Go get him, Tiger. The 00:20:23.119 --> 00:20:26.099 case is argued. The court rules 5 -4 in favor 00:20:26.099 --> 00:20:30.329 of Roosevelt. And Holmes dissents. He votes against 00:20:30.329 --> 00:20:31.730 the president. He votes against the president. 00:20:31.849 --> 00:20:33.970 He looks at the Sherman Antitrust Act and says, 00:20:34.069 --> 00:20:37.069 strictly as a legal matter, this law doesn't 00:20:37.069 --> 00:20:39.150 ban this kind of stock ownership. These guys 00:20:39.150 --> 00:20:42.089 found a loophole. It's not my job to close it. 00:20:42.170 --> 00:20:44.809 It's Congress's job to write a better law. TR 00:20:44.809 --> 00:20:47.569 must have been nuclear. He was apoplectic. Absolutely 00:20:47.569 --> 00:20:49.109 furious. That's when he delivered the famous 00:20:49.109 --> 00:20:51.829 line, I could carve out of a banana a judge with 00:20:51.829 --> 00:20:53.970 more backbone than that. Backbone of a banana. 00:20:54.349 --> 00:20:57.329 Wow. But the irony is, Holmes showed immense 00:20:57.329 --> 00:21:00.130 backbone. He stood up to the president who appointed 00:21:00.130 --> 00:21:02.450 him and the entire progressive movement because 00:21:02.450 --> 00:21:04.730 his legal theory, read the text, don't invent 00:21:04.730 --> 00:21:07.349 the law, demanded it. He wasn't a political player. 00:21:07.410 --> 00:21:09.589 He was a legal professional. He was doing his 00:21:09.589 --> 00:21:13.029 job as he saw it. And that independence brings 00:21:13.029 --> 00:21:16.690 us to Lochner v. New York in 1905. This is the 00:21:16.690 --> 00:21:19.470 case that made him a legend. It is the most famous 00:21:19.470 --> 00:21:21.869 dissent in American history. No question. Set 00:21:21.869 --> 00:21:24.740 the scene. Okay. New York passes a law saying 00:21:24.740 --> 00:21:27.440 bakers cannot work more than 60 hours a week 00:21:27.440 --> 00:21:30.440 or 10 hours a day. It was a public health measure. 00:21:31.299 --> 00:21:33.940 Bakeries at the time were essentially Dungeons 00:21:33.940 --> 00:21:36.819 flour dust coating the lungs, extreme heat from 00:21:36.819 --> 00:21:39.779 the ovens. People were dying young. So the state 00:21:39.779 --> 00:21:43.099 steps in to protect them seems reasonable. But 00:21:43.099 --> 00:21:45.960 the bakery owners sue. They argue that the Constitution 00:21:45.960 --> 00:21:49.400 protects liberty of contract. They say if a baker 00:21:49.400 --> 00:21:51.759 wants to work 80 hours a week to make extra money, 00:21:51.920 --> 00:21:54.099 the state has no right to stop him. That's his 00:21:54.099 --> 00:21:56.099 liberty. And the Supreme Court majority agreed. 00:21:56.279 --> 00:21:58.519 They bought that argument. They did. They struck 00:21:58.519 --> 00:22:00.920 down the law. They said the 14th Amendment protects 00:22:00.920 --> 00:22:02.940 your fundamental right to buy and sell labor 00:22:02.940 --> 00:22:05.299 however you want. It was a huge victory for, 00:22:05.319 --> 00:22:07.400 let's say, for capitalism. Yeah. This era of 00:22:07.400 --> 00:22:09.359 the court is now called the Lochner era because 00:22:09.359 --> 00:22:12.349 of it. And Holmes dissents. But. And I want to 00:22:12.349 --> 00:22:14.549 be really clear on this. He doesn't dissent because 00:22:14.549 --> 00:22:16.650 he feels sorry for the bakers. Right. This isn't 00:22:16.650 --> 00:22:18.390 a bleeding heart moment for him. No. And this 00:22:18.390 --> 00:22:21.430 is the aha moment for understanding Holmes. He 00:22:21.430 --> 00:22:23.230 probably didn't care about the bakers at all. 00:22:23.650 --> 00:22:26.349 He personally liked laissez -faire economics. 00:22:26.869 --> 00:22:29.490 He privately thought the law was paternalistic 00:22:29.490 --> 00:22:31.609 and silly. So why support it? Because of judicial 00:22:31.609 --> 00:22:34.759 restraint. He believed in democracy, or at least 00:22:34.759 --> 00:22:37.700 in the power of the majority. He wrote in his 00:22:37.700 --> 00:22:40.880 dissent, the 14th Amendment does not enact Mr. 00:22:41.099 --> 00:22:43.640 Herbert Spencer's social statics. Who was Herbert 00:22:43.640 --> 00:22:45.900 Spencer? Spencer was a social Darwinist, the 00:22:45.900 --> 00:22:48.539 ultimate champion of laissez -faire. So Holmes 00:22:48.539 --> 00:22:50.759 is saying the Constitution is not a textbook 00:22:50.759 --> 00:22:53.940 for one specific economic theory. It's a framework 00:22:53.940 --> 00:22:56.819 for people of fundamentally differing views to 00:22:56.819 --> 00:22:59.640 fight it out. It doesn't matter what I think. 00:22:59.700 --> 00:23:02.180 It matters what the people of New York, through 00:23:02.180 --> 00:23:05.380 their elected legislature, think. Exactly. Yeah. 00:23:05.440 --> 00:23:07.839 He referred to the public privately as the crowd 00:23:07.839 --> 00:23:10.680 or thick fingered clowns. He didn't respect their 00:23:10.680 --> 00:23:14.059 intelligence, but he respected their power. If 00:23:14.059 --> 00:23:17.160 the mob in New York elects a legislature and 00:23:17.160 --> 00:23:19.640 that legislature wants a 60 hour work week and 00:23:19.640 --> 00:23:21.740 the Constitution doesn't explicitly forbid it, 00:23:21.940 --> 00:23:24.559 the judge needs to shut up and let them have 00:23:24.559 --> 00:23:27.650 it. That is a fascinating nuance. He defends 00:23:27.650 --> 00:23:29.690 the people's rights, not out of love for the 00:23:29.690 --> 00:23:32.450 people, but out of a refusal to play God from 00:23:32.450 --> 00:23:34.769 the bench. It's the bad man facing the majority. 00:23:35.319 --> 00:23:37.480 He knows the majority has the power. The law 00:23:37.480 --> 00:23:40.059 should reflect that power, not the judge's personal 00:23:40.059 --> 00:23:42.680 economic theories. So for decades, this makes 00:23:42.680 --> 00:23:44.579 him a hero to the left. He's the guy saying, 00:23:44.759 --> 00:23:47.279 let the state regulate business. But that same 00:23:47.279 --> 00:23:49.640 instinct, let the state do what it wants, gets 00:23:49.640 --> 00:23:52.200 really complicated when we talk about free speech. 00:23:52.359 --> 00:23:55.279 It does. And Holmes's evolution on free speech 00:23:55.279 --> 00:23:57.480 is one of the most dramatic character arcs in 00:23:57.480 --> 00:24:00.240 legal history because he did not start as a free 00:24:00.240 --> 00:24:02.630 speech warrior. Not at all. No. Let's talk about 00:24:02.630 --> 00:24:05.410 Schenck v. United States. 1919, World War I is 00:24:05.410 --> 00:24:08.289 raging. The country is in a state of high anxiety 00:24:08.289 --> 00:24:12.549 and patriotism. The government passes the Espionage 00:24:12.549 --> 00:24:15.630 Act. It makes it a crime to, among other things, 00:24:15.809 --> 00:24:18.529 obstruct the draft. Okay. Charles Schenck is 00:24:18.529 --> 00:24:22.190 a socialist. He prints 15 ,000 leaflets telling 00:24:22.190 --> 00:24:25.710 young men the draft is slavery. Do not submit 00:24:25.710 --> 00:24:28.430 to intimidation. Assert your rights. So he's 00:24:28.430 --> 00:24:31.089 not blowing up bridges. He's handing out pamphlets. 00:24:31.170 --> 00:24:33.509 Correct. He's arrested. The case goes all the 00:24:33.509 --> 00:24:36.130 way to the Supreme Court. And Holmes writes the 00:24:36.130 --> 00:24:39.130 unanimous opinion. Upholding the conviction, 00:24:39.390 --> 00:24:42.589 he sends Schenck to jail. Wait, the great dissenter, 00:24:42.650 --> 00:24:44.549 the free speech guy, sends a guy to prison for 00:24:44.549 --> 00:24:46.650 a pamphlet. He did. And this is where he coined 00:24:46.650 --> 00:24:49.150 the phrase everyone knows but almost always misuses. 00:24:49.579 --> 00:24:51.859 He wrote, the most stringent protection of free 00:24:51.859 --> 00:24:54.200 speech would not protect a man in falsely shouting 00:24:54.200 --> 00:24:56.400 fire in a theater and causing a panic. Everyone 00:24:56.400 --> 00:24:58.500 quotes that, shouting fire in a crowded theater. 00:24:58.779 --> 00:25:00.839 But they use it to defend free speech limits. 00:25:01.200 --> 00:25:03.400 Holmes used it to jail a socialist for his political 00:25:03.400 --> 00:25:06.299 opinion. Precisely. He formulated what became 00:25:06.299 --> 00:25:09.519 known as the clear and present danger test. He 00:25:09.519 --> 00:25:11.940 said, if your speech is of such a nature as to 00:25:11.940 --> 00:25:13.960 create a clear and present danger of bringing 00:25:13.960 --> 00:25:16.619 about substantive evils that Congress has a right 00:25:16.619 --> 00:25:19.950 to prevent, like, say, stopping a draft in wartime, 00:25:19.990 --> 00:25:22.710 then the First Amendment doesn't save you. It's 00:25:22.710 --> 00:25:26.509 the soldier again. We are at war. You are hurting 00:25:26.509 --> 00:25:29.490 the war effort. You go to jail. It's a very pragmatic, 00:25:29.750 --> 00:25:32.730 non -idealistic view of speech. Yes. But then 00:25:32.730 --> 00:25:36.200 the pivot happens. Yeah. And it happens incredibly 00:25:36.200 --> 00:25:40.359 fast. Just months later, in late 1919, the court 00:25:40.359 --> 00:25:43.920 hears Abrams v. United States. What are the facts 00:25:43.920 --> 00:25:46.079 in Abrams? How are they different? Very similar. 00:25:46.160 --> 00:25:48.460 On the surface, a group of Russian Jewish immigrants 00:25:48.460 --> 00:25:50.579 in New York throw leaflets out of a factory window. 00:25:50.819 --> 00:25:53.039 They are criticizing President Wilson for sending 00:25:53.039 --> 00:25:55.059 American troops to Russia to fight the Bolsheviks. 00:25:55.140 --> 00:25:57.460 They call for a general strike in munitions factories. 00:25:57.700 --> 00:25:59.579 So more leaflets, a slightly different message. 00:25:59.799 --> 00:26:02.000 Right. The majority of the court looks at Schenck, 00:26:02.019 --> 00:26:04.039 looks at Abrams, and says, well, Holmes just 00:26:04.039 --> 00:26:06.539 gave us the rule. This is a clear and present 00:26:06.539 --> 00:26:09.420 danger. Guilty. 20 years in prison. 20 years. 00:26:09.539 --> 00:26:12.579 20 years in federal prison for throwing leaflets 00:26:12.579 --> 00:26:15.900 out a window. But this time, Holmes switches 00:26:15.900 --> 00:26:19.980 sides. He dissents. Why? What changed in six 00:26:19.980 --> 00:26:23.559 months? Two things, probably. First, the facts 00:26:23.559 --> 00:26:25.660 were slightly different, and he saw the difference. 00:26:25.940 --> 00:26:28.309 These guys were nobodies. Holmes called them 00:26:28.309 --> 00:26:31.329 puny anonymities. He looked at their silly leaflet 00:26:31.329 --> 00:26:33.569 and thought, this isn't a clear and present danger. 00:26:33.710 --> 00:26:36.170 This isn't a threat. Nobody is listening to these 00:26:36.170 --> 00:26:38.190 guys. The republic isn't going to collapse because 00:26:38.190 --> 00:26:40.849 of some Russians in a loft. OK, so a difference 00:26:40.849 --> 00:26:42.970 of degree. And the second thing. Intellectual 00:26:42.970 --> 00:26:46.349 pressure. In the summer of 1919, Holmes was hanging 00:26:46.349 --> 00:26:48.410 out with young progressive intellectuals like 00:26:48.410 --> 00:26:52.029 Harold Lasky and, crucially, a Harvard law professor 00:26:52.029 --> 00:26:54.539 named Zechariah Chafee. And Chafee had written 00:26:54.539 --> 00:26:56.880 a very influential law review article criticizing 00:26:56.880 --> 00:26:59.119 Holmes' reasoning and chink. So they basically 00:26:59.119 --> 00:27:00.720 sat him down and said, hey, Ollie, you got this 00:27:00.720 --> 00:27:03.539 one wrong. In a very polite, academic way, yes. 00:27:04.440 --> 00:27:06.859 There's a story about a tea party where Chafee 00:27:06.859 --> 00:27:10.099 gently cornered Holmes. He argued that free speech 00:27:10.099 --> 00:27:12.160 wasn't just about the speaker's right. It was 00:27:12.160 --> 00:27:15.099 about a social interest. Society needs to hear 00:27:15.099 --> 00:27:18.680 all ideas. If you silence criticism, you lock 00:27:18.680 --> 00:27:21.619 the country into error. You prevent society from 00:27:21.619 --> 00:27:24.440 finding the truth. And Holmes, at age 78, listened. 00:27:24.660 --> 00:27:27.099 He changed his mind. He listened. And in his 00:27:27.099 --> 00:27:29.319 Abrams dissent, he writes what I consider the 00:27:29.319 --> 00:27:31.160 greatest paragraph in Supreme Court history. 00:27:31.440 --> 00:27:33.880 He completely reframes the First Amendment. He 00:27:33.880 --> 00:27:36.400 introduces the marketplace of ideas. Can you 00:27:36.400 --> 00:27:38.599 share some of it? He writes, when men have realized 00:27:38.599 --> 00:27:41.059 that time has upset many fighting faiths, they 00:27:41.059 --> 00:27:43.759 may come to believe. that the best test of truth 00:27:43.759 --> 00:27:46.299 is the power of thought to get itself accepted 00:27:46.299 --> 00:27:48.599 in the competition of the market, and that truth 00:27:48.599 --> 00:27:50.859 is the only ground upon which their wishes safely 00:27:50.859 --> 00:27:53.380 can be carried out. Time has upset many fighting 00:27:53.380 --> 00:27:56.319 faiths. That line gives me chills. It goes all 00:27:56.319 --> 00:27:58.599 the way back to the Civil War. He had a fighting 00:27:58.599 --> 00:28:01.960 faith in 1861. The Confederates had a fighting 00:28:01.960 --> 00:28:04.519 faith. He saw that history destroys absolute 00:28:04.519 --> 00:28:07.619 certainty. So his logic becomes, since we can 00:28:07.619 --> 00:28:10.759 never be 100 % sure we are right, we must allow 00:28:10.759 --> 00:28:13.319 a free trade in ideas. So we have to let the 00:28:13.319 --> 00:28:16.059 bad ideas into the market. Yes, because the only 00:28:16.059 --> 00:28:18.680 way to prove the good ideas are actually good 00:28:18.680 --> 00:28:21.759 is for them to survive the competition. We have 00:28:21.759 --> 00:28:24.019 to tolerate speech we loathe. It's a defense 00:28:24.019 --> 00:28:26.140 of liberty based on skepticism. It's not let 00:28:26.140 --> 00:28:28.119 them speak because every voice is sacred. It's 00:28:28.119 --> 00:28:30.279 let them speak because we might be wrong. Exactly. 00:28:30.480 --> 00:28:33.569 It is humility born of trauma. The Constitution 00:28:33.569 --> 00:28:36.250 is an experiment, he says, as all life is an 00:28:36.250 --> 00:28:38.289 experiment. You have to let the experiment run, 00:28:38.430 --> 00:28:40.450 even if it's dangerous. It's beautiful, it's 00:28:40.450 --> 00:28:44.690 inspiring, but we promise a deep dive. And deep 00:28:44.690 --> 00:28:46.650 dives have to look at the shadows. They do. We 00:28:46.650 --> 00:28:49.230 have to talk about Buck v. Bell. We do. And this 00:28:49.230 --> 00:28:50.829 is where the listener might want to brace themselves. 00:28:51.509 --> 00:28:53.670 Because the same philosophy that gave us the 00:28:53.670 --> 00:28:56.730 marketplace of ideas led Holmes to a very, very 00:28:56.730 --> 00:29:00.789 dark place. The year is 1927. The eugenics movement 00:29:00.789 --> 00:29:04.150 is, well, it's popular. It's mainstream among 00:29:04.150 --> 00:29:06.549 the intellectual elite. It was considered settled 00:29:06.549 --> 00:29:09.430 science by the elites at Harvard and Yale and 00:29:09.430 --> 00:29:12.910 Stanford. The idea that we can breed better humans 00:29:12.910 --> 00:29:15.950 and stop the unfit from reproducing was seen 00:29:15.950 --> 00:29:18.349 as progressive. And the state of Virginia passes 00:29:18.349 --> 00:29:21.230 a law allowing the state to forcibly sterilize 00:29:21.230 --> 00:29:23.930 feeble -minded people in state institutions. 00:29:24.109 --> 00:29:26.210 And they need a test case to make sure it's constitutional. 00:29:26.809 --> 00:29:29.029 And their test case is a young woman named Carrie 00:29:29.029 --> 00:29:31.950 Buck. Who was she? Carrie Buck was an inmate 00:29:31.950 --> 00:29:34.650 in a state colony for epileptics and the feeble 00:29:34.650 --> 00:29:37.390 -minded. The state claimed she was the daughter 00:29:37.390 --> 00:29:39.890 of a feeble -minded mother and that she herself 00:29:39.890 --> 00:29:42.369 had given birth to a feeble -minded, illegitimate 00:29:42.369 --> 00:29:44.750 child. So they're arguing there's a pattern of 00:29:44.750 --> 00:29:47.950 genetic defect. Yes. They wanted to cut her fallopian 00:29:47.950 --> 00:29:50.970 tubes against her will to prevent her from passing 00:29:50.970 --> 00:29:53.769 on her defective genes to a fourth generation. 00:29:54.250 --> 00:29:56.390 But before we get to the ruling, we need to clarify. 00:29:56.509 --> 00:29:58.950 The facts of the case were a complete lie, right? 00:29:59.150 --> 00:30:02.809 A total fabrication. A sham. Historians later 00:30:02.809 --> 00:30:05.109 uncovered the records. Carrie Buck was likely 00:30:05.109 --> 00:30:08.130 of normal intelligence. She had been institutionalized 00:30:08.130 --> 00:30:10.450 to hide the shame of being raped by a relative. 00:30:10.990 --> 00:30:14.150 Her child, who the state's expert called feeble 00:30:14.150 --> 00:30:16.789 -minded at eight months old, actually went on 00:30:16.789 --> 00:30:18.769 to make the honor roll in elementary school before 00:30:18.769 --> 00:30:22.089 dying young. The case was a setup to get a legal 00:30:22.089 --> 00:30:24.309 green light. But the Supreme Court didn't know 00:30:24.309 --> 00:30:26.829 that or didn't care to look too closely. They 00:30:26.829 --> 00:30:28.690 took the record as it was presented to them. 00:30:28.829 --> 00:30:30.890 So the question before the court is, can the 00:30:30.890 --> 00:30:33.269 government surgically mutilate a citizen for 00:30:33.269 --> 00:30:36.269 the benefit of the gene pool? The vote was 8 00:30:36.269 --> 00:30:39.809 to 1, only one dissenter. And Oliver Wendell 00:30:39.809 --> 00:30:43.130 Holmes Jr. wrote the majority opinion. He upheld 00:30:43.130 --> 00:30:45.930 the sterilization. How does the man who protected 00:30:45.930 --> 00:30:48.890 the puny anonymities in Abrams justify this? 00:30:49.309 --> 00:30:51.289 It connects directly back to the soldier. It's 00:30:51.289 --> 00:30:53.519 the same cold logic. Listen to his reasoning, 00:30:53.599 --> 00:30:55.740 he wrote. We have seen more than once that the 00:30:55.740 --> 00:30:57.700 public welfare may call upon the best citizens 00:30:57.700 --> 00:30:59.920 for their lives. He's talking about the draft. 00:31:00.019 --> 00:31:03.220 He's talking about Antietam. Yes. He's saying, 00:31:03.279 --> 00:31:06.099 look, the state can force the best and brightest 00:31:06.099 --> 00:31:08.680 young men to go die in the mud for the collective 00:31:08.680 --> 00:31:11.619 good. If we can ask that ultimate sacrifice, 00:31:12.039 --> 00:31:15.519 surely we can ask for a lesser sacrifice sterilization 00:31:15.519 --> 00:31:19.059 from those who sap. The strength of the state. 00:31:19.180 --> 00:31:21.460 That is, it's logically consistent, but it is 00:31:21.460 --> 00:31:23.839 morally horrific. We can kill you for the state, 00:31:23.900 --> 00:31:25.799 so we can definitely sterilize you. And then 00:31:25.799 --> 00:31:28.220 he delivers the line, the one that stains his 00:31:28.220 --> 00:31:31.720 legacy forever. Referring to Carrie Buck, her 00:31:31.720 --> 00:31:34.200 mother, and her infant daughter, he wrote, Three 00:31:34.200 --> 00:31:37.299 generations of imbeciles are enough. Three generations 00:31:37.299 --> 00:31:39.160 of imbeciles are enough? It's so cruel, it sounds 00:31:39.160 --> 00:31:40.980 like something a villain in a movie would say. 00:31:41.240 --> 00:31:43.420 It is the bad man theory applied to biology. 00:31:44.029 --> 00:31:46.410 It reveals the danger of his judicial restraint. 00:31:46.650 --> 00:31:48.710 Remember Lochner? He said, if the majority wants 00:31:48.710 --> 00:31:51.829 a law, let them have it. Well, the Virginia legislature 00:31:51.829 --> 00:31:54.650 representing the majority wanted eugenics and 00:31:54.650 --> 00:31:57.289 Holmes deferred to them. So he didn't see a natural 00:31:57.289 --> 00:31:59.990 right to bodily integrity that trumped the state's 00:31:59.990 --> 00:32:01.630 interest. He didn't believe in natural rights, 00:32:01.710 --> 00:32:03.930 period. He believed in the power of the state 00:32:03.930 --> 00:32:06.269 to ensure its own survival. But wait, hold on. 00:32:06.309 --> 00:32:09.349 In Abrams, he protected the minority opinion 00:32:09.349 --> 00:32:12.880 because we might be wrong. Why didn't he apply 00:32:12.880 --> 00:32:15.799 that skepticism here? Why didn't he say, hey, 00:32:15.920 --> 00:32:18.579 maybe our science about eugenics is wrong, so 00:32:18.579 --> 00:32:20.700 we shouldn't do something irreversible to people? 00:32:20.900 --> 00:32:23.319 That is the great contradiction, isn't it? When 00:32:23.319 --> 00:32:26.339 it came to ideas, Holmes was a skeptic. He thought 00:32:26.339 --> 00:32:28.759 ideas, even bad ones, couldn't hurt you immediately. 00:32:29.039 --> 00:32:31.740 But when it came to biology and survival, he 00:32:31.740 --> 00:32:34.740 was a scientific materialist. He looked at society 00:32:34.740 --> 00:32:37.559 like an organism. If a limb is gangrenous, you 00:32:37.559 --> 00:32:40.069 cut it off. He trusted the science of his day 00:32:40.069 --> 00:32:42.250 way more than he trusted political speech. It 00:32:42.250 --> 00:32:44.369 serves as a profound warning, doesn't it? If 00:32:44.369 --> 00:32:46.690 you divorce law entirely from morality, if you 00:32:46.690 --> 00:32:49.609 remove that sense of conscience, you can rationalize 00:32:49.609 --> 00:32:52.509 atrocities with perfect, cold logic. You absolutely 00:32:52.509 --> 00:32:55.569 can. Buck v. Bell is the shadow of legal realism. 00:32:55.789 --> 00:32:57.549 It's what happens when you view humans merely 00:32:57.549 --> 00:33:00.390 as biological inputs in a state machine. The 00:33:00.390 --> 00:33:02.509 Nazis later cited Holmes' opinion at the Nuremberg 00:33:02.509 --> 00:33:05.009 trials to defend their own sterilization programs. 00:33:05.430 --> 00:33:08.329 That's horrifying. So, moving toward the end 00:33:08.329 --> 00:33:10.710 of his life, the man just kept going. He stayed 00:33:10.710 --> 00:33:12.930 on the court until he was 90 years old. He set 00:33:12.930 --> 00:33:16.089 the record at the time. He became this wizened, 00:33:16.130 --> 00:33:19.589 mustachioed sage of Washington. A living legend. 00:33:19.890 --> 00:33:22.670 But he had one more gift for us. A very important 00:33:22.670 --> 00:33:29.279 one. Silverthorne lumber. Ah, yes. 1920. The 00:33:29.279 --> 00:33:31.619 Fruit of the Poisonous Tree. Sounds like a fantasy 00:33:31.619 --> 00:33:34.019 novel title. What's it about? It's a crucial 00:33:34.019 --> 00:33:37.240 Fourth Amendment doctrine. The feds had illegally 00:33:37.240 --> 00:33:40.140 raided a lumber company without a warrant. They 00:33:40.140 --> 00:33:41.940 seized all their papers, took them back to the 00:33:41.940 --> 00:33:44.579 office, copied them, and then a court ordered 00:33:44.579 --> 00:33:46.539 them to give the originals back. All right, so 00:33:46.539 --> 00:33:48.759 the company gets its stuff back. Right, but the 00:33:48.759 --> 00:33:50.799 government said, fine, we gave the papers back, 00:33:50.960 --> 00:33:53.059 but we're going to use the copies we made to 00:33:53.059 --> 00:33:56.240 prosecute you. So... We cheated, but we're keeping 00:33:56.240 --> 00:33:58.599 the info we got from cheating. And Holmes, writing 00:33:58.599 --> 00:34:01.299 for the court, said absolutely not. He ruled 00:34:01.299 --> 00:34:03.440 that if the source of the evidence, the tree, 00:34:03.640 --> 00:34:06.940 is tainted by an illegal search, then the evidence 00:34:06.940 --> 00:34:10.260 you get from it, the food, is also tainted. You 00:34:10.260 --> 00:34:12.380 can't use any of it in court. Why not? Because, 00:34:12.460 --> 00:34:15.659 again, he's a cynic about power. He knew that 00:34:15.659 --> 00:34:17.800 if you let the police benefit from breaking the 00:34:17.800 --> 00:34:20.300 law, you are incentivizing them to break the 00:34:20.300 --> 00:34:23.449 law. The only way to stop the bad man with a 00:34:23.449 --> 00:34:26.489 badge is to make his cheating useless. It's incredible. 00:34:26.610 --> 00:34:28.829 The father of modern free speech, the father 00:34:28.829 --> 00:34:31.610 of the exclusionary rule, and the author of Buck 00:34:31.610 --> 00:34:36.090 v. Bell. He retired in 1932. On his 90th birthday, 00:34:36.309 --> 00:34:38.570 he gave a radio address to the nation. Which 00:34:38.570 --> 00:34:41.929 is just wild in itself. Born in 1841, broadcasting 00:34:41.929 --> 00:34:44.829 on the radio. He quoted a Latin poet about death. 00:34:45.050 --> 00:34:48.269 Death plucks my ear and says, live, I am coming. 00:34:48.800 --> 00:34:51.119 He was ready. He was not afraid. And when he 00:34:51.119 --> 00:34:54.199 finally died in 1935, just days before his 94th 00:34:54.199 --> 00:34:56.360 birthday, his executors went through his apartment, 00:34:56.440 --> 00:34:58.380 and what they found really brings this whole 00:34:58.380 --> 00:35:01.079 story full circle. In his closet, hanging there 00:35:01.079 --> 00:35:03.980 after 70 years, they found his Civil War uniforms. 00:35:04.320 --> 00:35:06.579 The ones from the 20th Massachusetts. Yes. They 00:35:06.579 --> 00:35:08.900 were still stained with his own blood. They were 00:35:08.900 --> 00:35:11.400 torn by the bullets from Balls Bluff and Antietam. 00:35:11.639 --> 00:35:13.719 He had pinned a small piece of paper to them 00:35:13.719 --> 00:35:16.260 with a note about the battles where he was wounded. 00:35:16.619 --> 00:35:18.639 So he was the great dissenter, the Yankee from 00:35:18.639 --> 00:35:21.960 Olympus, the great legal philosopher. But when 00:35:21.960 --> 00:35:24.300 you strip it all away, he was always that soldier. 00:35:24.679 --> 00:35:27.280 He was the soldier who survived when his friends 00:35:27.280 --> 00:35:31.019 didn't. He viewed life as a war and law as the 00:35:31.019 --> 00:35:33.400 rules of engagement for that war. He also left 00:35:33.400 --> 00:35:35.079 his money to the U .S. government, didn't he? 00:35:35.179 --> 00:35:37.380 He did. He left the bulk of his estate to the 00:35:37.380 --> 00:35:40.280 United States. He famously said, taxes are what 00:35:40.280 --> 00:35:42.719 we pay for civilized society. He believed in 00:35:42.719 --> 00:35:44.480 the project of America, even if he thought its 00:35:44.480 --> 00:35:47.610 citizens were thick fingered clowns. So let's 00:35:47.610 --> 00:35:49.489 bring this home. What is the takeaway? How do 00:35:49.489 --> 00:35:52.309 we synthesize this man? Holmes reinvented American 00:35:52.309 --> 00:35:55.889 law. He smashed the old idea that law was a static 00:35:55.889 --> 00:35:58.469 logical science and showed us it was a living, 00:35:58.530 --> 00:36:01.650 breathing, messy thing born of experience. He 00:36:01.650 --> 00:36:03.949 forced the law to look at the world as it is, 00:36:03.989 --> 00:36:06.590 not as we wish it would be. But he also showed 00:36:06.590 --> 00:36:09.050 us the danger. He showed us that experience without 00:36:09.050 --> 00:36:11.710 a moral compass, without a belief in fundamental 00:36:11.710 --> 00:36:14.889 human dignity, can lead directly to Buck v. Bell. 00:36:15.030 --> 00:36:17.730 Correct. It's a double -edged sword. But I think 00:36:17.730 --> 00:36:19.929 his greatest legacy is that question he poses 00:36:19.929 --> 00:36:22.710 to all of us in his Abrams dissent. Time has 00:36:22.710 --> 00:36:25.929 upset many fighting faiths. Think about that, 00:36:25.989 --> 00:36:28.210 you, the listener. Think about the things you 00:36:28.210 --> 00:36:30.389 are absolutely certain of today. The political 00:36:30.389 --> 00:36:32.929 views you would scream at a stranger on the internet 00:36:32.929 --> 00:36:36.750 over. The ideas you think are as solid as natural 00:36:36.750 --> 00:36:40.429 law. Holmes asks, do you have the courage to 00:36:40.429 --> 00:36:43.329 treat those beliefs as merely fighting faiths? 00:36:43.369 --> 00:36:46.869 Can you admit that just maybe in 50 years the 00:36:46.869 --> 00:36:49.210 marketplace of ideas might prove you were wrong? 00:36:49.510 --> 00:36:52.449 It is a terrifying question. But in a polarized 00:36:52.449 --> 00:36:55.369 world full of absolute certainty, it might be 00:36:55.369 --> 00:36:57.610 the only question that can save us. And on that 00:36:57.610 --> 00:36:59.670 note, we're going to wrap up this deep dive into 00:36:59.670 --> 00:37:01.909 the life and mind of Oliver Wendell Holmes Jr. 00:37:02.539 --> 00:37:04.460 it's a lot to process but that's why we do this 00:37:04.460 --> 00:37:05.820 thanks for listening thank you