LAW WITHOUT VALUES: The Life, Work, and Legacy of Justice Holmes

##### LAW WITHOUT VALUES: The Life, Work, and Legacy of Justice Holmes.

By Albert W. Alschuler. Univ. of Chicago Press. 325 pp. $30

When I ask law students to name three leading Supreme Court justices, Oliver Wendell Holmes, Jr. (1841–1935) always gets mentioned. Was he, as the students maintain, one of the great liberal justices on the Court? The answer is a definite maybe.

Along with those who resolutely defend Holmes’s liberal credentials, there are those who vigorously challenge them. Grant Gilmore, selected by the Holmes estate to write the justice’s authorized biography (a project he never completed), reached this conclusion: "Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was a myth, concocted principally by Harold Laski and Felix Frankfurter, about the time of World War I. The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak."

Alschuler, a professor at the University of Chicago Law School, quotes Gilmore’s statement, adopts it, and makes it his theme. He charges that Holmes injected a poisonous skepticism into the body of American law, that he permitted government to behave unjustly, and, worst of all, that he did not believe in a divinely imposed distinction between right and wrong. The book bespeaks careful scholarship and a long-term, intense, and, one might say, obsessive interest in Holmes and his legacy.

Like other Holmes biographies (this is the fourth in 12 years), Law without Values says much about the main event in Holmes’s life, the battlefield woundings he suffered as a Union soldier in the Civil War. For the rest of his years, Holmes reflected on his military service. He often described life itself as a battle carried on by soldiers blindly following orders drafted by an unseen hand.

After the war, Holmes attended Harvard Law School. He did some teaching. He wrote The Common Law (1881), a book that is still in print, still being scrutinized by cheerleaders and detractors. He tried practicing law but didn’t like it. When offered an appointment to the Massachusetts state trial court, he grabbed it. In 1902, President Theodore Roosevelt appointed him to the Supreme Court, where he served for 30 years.

Moral preferences are "more or less arbitrary," Holmes wrote. "Do you like sugar in your coffee or don’t you? . . . So as to truth." He believed that these "more or less arbitrary" choices ought to be made by legislators, not judges, so he was disinclined to strike down laws as unconstitutional. He voted to uphold progressive laws (hence, in part, his liberal reputation), but he also voted to uphold regressive ones. The author blames Holmesian moral skepticism for some of the social disintegration we see today—no discipline, no standards. Strange that Holmes, a man who imposed strict military discipline on himself, should be indicted for such an offense.

During his long lifetime, Holmes worked hard, read widely, knew many of the great personages of the day, and, especially in his letters, grappled with the big subjects—history, philosophy, literature, life, and death. After all the shot and shell, this intriguing figure remains standing.

—Jacob A. Stein