Justice Oliver Wendell Holmes, by Edward White
Oliver Wendell Holmes is customarily called America’s greatest jurist, but outside of the legal profession few today can be aware of his influence. With his piercing eyes and imposing handlebar mustache, he gazes out at us from photographs as the embodiment of an alien, 19th-century ethos: a kind of Rough Rider in robes. Yet when Holmes died in 1935, just shy of his ninety-fourth birthday, he had already helped to launch the biggest revolution in legal thinking since John Marshall made the Supreme Court into the definitive arbiter of the Constitution’s meaning. The effects of Holmes’s revolution, moreover, are still very much with us.
More forcefully than any other jurist of his time, Holmes argued that judges could no longer afford to bury themselves in ancient treatises, pretending that the law followed an autonomous logic conceived in an abstract realm beyond social existence; instead, the law must acknowledge its subordination to political institutions, which were themselves influenced by powerful social forces that judges could not ignore.
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