The Worst Supreme Court Justice: Oliver Wendell Holmes (Part I)

Oliver Wendell Holmes was a bigoted, hypocritical, and out of touch progressive who had no business being on the Supreme Court. Holmes was known as the “great dissenter” for his many famous dissents. Maybe his worst decision was when he wrote the majority decision in Buck v. Bell in 1927. In this case the Court upheld a Virginia statute making compulsory sterilization of the intellectually challenged legal. In his opinion Holmes says of the Buck family: “three generations of imbeciles is enough”. Kerri Buck was sterilized by the state following this decision. Holmes and the majority sided with Harry Laughlin and his theories of eugenics. Hitler also followed the theories of Laughlin to make the German race pure. This opinion would be somewhat overruled in Skinner v. Oklahoma in 1941 where the Court ruled that procreation was a fundamental right. This decision alone should make Holmes one of the worst judges of American history.

Buck v. Bell personally offends me. After Dred Scott (Blacks had no constitutional rights), Roe v. Wade (Fetuses have no constitutional rights), and Korematsu (Japanese Americans had no constitutional rights – although temporary), I would then place Buck v. Bell as the worst decisions of all time. That is right, I would place Buck in front of Plessy (created the separate but equal doctrine). I had an Aunt born with cerebral palsy and she had a very low IQ. In her 20s she could not ride in a car without her eyes being covered, or even open a can of soup. No one thought she would amount to anything and would be a burden on the family for her entire life. By her mid-30s after much pain and hard work she was an independent woman. She lived by herself in an apartment and worked in the AT&T mailroom. She even got her driver’s license and drove a Mustang. Unfortunately, she died in mid-40s from breast cancer. Over 7,000 people attended her funeral. She touched so many people with her compelling story of resilience. If she had children, I am certain she would have been a better mother than most. She is missed. To think an elitist like Holmes would have tried to stop a life like my aunt speaks volumes. From what I can see and read, my Aunt was a much better human being than Holmes would ever dream of becoming. Still, for some reason (oh yeah he was a progressive) history views Holmes favorably.

Holmes bigotry towards women goes further than sterilizing them. Before getting into this, we must first understand the type of lawyer Holmes was. This can be explained in his dissenting opinion in Lochner v. New York. This case dealt with work hour limitations for bakers. Holmes is correct that the majority should not have elevated the “freedom of contract” to a fundamental right (although “freedom of contract” is listed in the Civil Rights Act of 1866 which is an interpretation of the Fourteenth Amendment). But historians and Holmes are incorrect to say that all state statutes must be “presumed” constitutional and the “burden of proof” falls on citizens to prove federal and state laws are unconstitutional. Most historian’s side with Holmes and say Lochner was incorrectly decided. But even if you accepted the narrative (rationale) that working in a bakery was a “dangerous” occupation, the law could easily be seen as arbitrary or discriminatory for several reasons. First, the law only focused on one “dangerous” profession and secondly, the law favored big corporate bakeries over “mom and pop” shops since big bakeries could afford to pay workers for 3 shifts over 7 days a week whereas a “mom and pop” shops could not afford to do so. The law drove many small bakeries out of business. So, for these reasons, striking down the New York hour limitation statute could be seen as rationale. Holmes practiced what is commonly referred to as “judicial restraint”. He applies “restraint” from striking down government laws because he presumes a law is constitutional first and foremost and the burden is on the people to prove the law in unconstitutional. Most people do not use the term “judicial restraint” correctly – it is not a good term to define a judge. In his Lochner dissent, Holmes said that the “word liberty, in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominate opinion”. That is some dangerous stuff for several reasons. First, to consider our liberty and the Fourteenth Amendment as “perverted” is troublesome at best and secondly, it is important to note that a majority of Americans had a low opinion of intellectually challenged persons so that must make their liberty guaranteed by the Fourteenth Amendment moot or worthless as Holmes decided in Buck.

In Bailey v. Alabama (1911), the Court struck down an Alabama law (using the Thirteenth Amendment) where blacks that signed work contracts were imprisoned and sentenced to hard labor if they did not honor the contract. It was obvious Southern states were coming up with imaginative and creative ways to keep blacks as slaves and they devised this scheme. Holmes could not see through the guise of Alabama to oppress blacks so he dissented. Holmes said that this law “mainly concerns the blacks does not matter.” Holmes, all the sudden in this case is in favor of the “freedom of contract” by saying “the Thirteenth Amendment does not outlaw labor contracts.” And neither did the Fourteenth Amendment in Lochner v. New York. He also says “But if it is a perfectly fair and proper contract, I can see no reason why the state should not throw its weight on the side of performance.” He also contends the way Alabama set up this scheme (whites did not get work contracts) “it does not make the laborer a slave” since “imprisonment with hard labor is not stricken from the statute books.” If the law only affects blacks, then yes, it is discriminatory and its purpose is to make blacks slaves again under the guise of prison labor. From this, it is obvious to know how Holmes would have sided on Plessy v. Ferguson decided just fifteen years prior. He would have said “separate but equal” was constitutional because that is what a “majority” of Americans prefer. Remember, Holmes was friends with President Woodrow Wilson (another bigot) who segregated federal employees. Buchanan v. Warley decided in 1917 was a unanimous decision. Holmes wanted to dissent and even wrote a scathing dissent but was finally convinced to join the majority. In this case, the Court held that a Kentucky law forbidding home sales to blacks in white neighborhoods was unconstitutional using the “perverted” Fourteenth Amendment. Holmes wanted to side with state “police power” to uphold the law because it would “preserve the peace” by keeping neighborhoods segregated. Or as the defense said in the case “to maintain racial purity”.