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

In Muller v. Oregon (1908) the Court upheld a law that placed a limit of 10 hours per work day for women. In the majority decision (Holmes concurs), by using data presented by experts (men – in particular future Supreme Court Justice – Louis Brandies) the Court had the following quotes: “widespread belief that women’s physical structure, and functions she performs …. Justify special legislation restricting or qualifying the conditions under which she should be permitted to toil”; “this is especially true when the burden of motherhood are upon her”; “healthy mothers are essential to vigorous offspring, the physical well-being of women becomes an object of public interest and care in order to preserve the strength and vigor of the race”; “woman has always been dependent upon man”; “she is not an equal competitor with her brother”; and “two sexes differ in structure of body, in the functions to be performed by each, in the amount of physical strength, in the capacity for long continued labor, particularly when done standing, the influence of vigorous health upon the future well-being of the race, the self-reliance which enables one to assert full rights, and in the capacity to maintain the struggle for subsistence. This difference justifies a difference in legislation”. The Court was following the biases it outlined in Bradwell v. Illinois where the Court held a woman could not work as a lawyer even though she passed the bar exam. In Adkins v. Children’s Hospital (1923) the Court struck down a statute wanting to create a minimum wage for women. The majority decision was written by Justice George Sutherland who as a Senator was instrumental to get the Nineteenth Amendment passed (women’s suffrage). Sutherland knew the law in Adkins was discriminatory because it only affected women and would make it more difficult for women to get work in the future. Holmes of course dissented, even though he alluded that the law would hurt a women’s prospect at getting work. In his dissent Holmes writes this bigoted reason to uphold the law “It will need more than the Nineteenth Amendment to convince me that there are no differences between men and women, or that legislation cannot take those difference into account.” This is okay because Holmes was after all, following the majority public opinion at the time – women are inferior to men.

Holmes dissented over Meyer v. Nebraska (1923) where the Court struck down a law that prohibited children learning a foreign language before reaching 10 years of age. Holmes is also famous for his First Amendment cases. In Schenck v. United States (1919) Holmes wrote the majority opinion that upheld the Espionage Act of 1917. Holmes wrote that during times of war (emergencies) the government can restrict free speech when there is a “clear and present danger” because someone cannot “falsely shout fire in a theatre and causing a panic”. Holmes would write the majority opinion upholding a similar case (Debs v. United States – 1919) where Eugene Debs, a socialist, was imprisoned under the Espionage Act of 1917. These were the first restrictions on the First Amendment and were used for decades to lockup harmless socialists and communists. Although Holmes would change his view over time, the damage was done. In Abrams v. United States (1919), Holmes changed his views on the First Amendment, but the majority decision was able to use his opinions in Schenck and Debs to uphold First Amendment restrictions. However, Holmes truly conflicts his argument in Abrams and that of Lochner. In Abrams Holmes says “That at any rate is the theory of our Constitution. It is an experiment as all life is an experiment.” In Lochner, Holmes says “But a Constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.”

What makes Holmes a bad judge is not just his bigoted views, but the fact he changes his view of “contracts” and the “theory” of the constitution to meet his ideals of presumption to uphold the opinions of the majority of the people even if the opinions were racially and gender discriminatory. History has a favorable view of Holmes, but that is consistent with history having favorable views of Wilson (segregating federal offices), FDR (interning Japanese Americans), Truman (dropped the A-Bomb), and LBJ (the Vietnam fiasco). We know why, because they were progressives, even if they did regressive, oppressive, or bigoted acts. History has a way of remembering what it wants to remember and redacting what it wants to disappear.