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About that Oliver Wendell Holmes Jr. Quotage by Obama…

May 27, 2009

In introducing Sonia Sotomayor as his nominee for the US Supreme Court  Barack Obama (attempted) to quote Oliver Wendell Holmes Jr.

Holmes a former US Supreme Court Justice himself as appointed by Theodore Roosevelt in 1902.

Obama’s word smiths have failed once again. The twisting of historical text in order to suit Obama’s agenda is a direct insult to the intelligence of American citizens. If the Obama Admin actually think there will be no fact checking, then it is they who are the fools.  Not the American public. Which on the surface is indeed what it would seem, in that they believe American’s are  fools.  An insult in itself.  A constant occurrence, but I digress.

Moving along.

In his desire to legitimize “judicial activism” which he favors over and above  “judicial restraint”.  Obama overtly misinterprets Oliver Wendell Holmes Jr.

The original quote from Holmes “The Common Law” published in 1881.

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

In Obama’s words.

For as Supreme Court Justice Oliver Wendell Holmes once said, “The life of the law has not been logic; it has been experience.”  Experience being tested by obstacles and barriers, by hardship and misfortune; experience insisting, persisting, and ultimately overcoming those barriers.  It is experience that can give a person a common touch and a sense of compassion; an understanding of how the world works and how ordinary people live.  And that is why it is a necessary ingredient in the kind of justice we need on the Supreme Court.

Full text

Roger Clegg  – Bench Memos (NRO) gives the above Obama statement a thorough fisking.
In: Obama & Holmes

This is a gross distortion of Holmes—who, incidentally, wrote this line before he was a judge, let alone a “Supreme Court Justice”—for at least two reasons and probably three.

Holmes was speaking descriptively, not normatively—that is, he wasn’t saying that judges should favor experience over logic, just that they did.


Second, the line comes from the first paragraph in Holmes’s first lecture on The Common Law, and so he was writing about “the common law,” duh, and not constitutional or statutory law.  That is, he was writing mostly about cases in which judges really had no publicly enacted laws to apply.  So the phenomenon of judges ignoring legal texts in favor of their own policy preferences—the definition of “judicial activism”—was not something that Holmes was describing, let alone endorsing.

Read the rest


Oliver Wendell Holmes Jr —  judicial restraint  vs. judicial activism

He believed that judges should not impose their private beliefs on law, especially law created by a legislature. When reviewing the constitutionality of legislation, Holmes said a legislature can do whatever it sees fit unless a law it enacts is not justified by any rational interpretation of, or violates an express prohibition of, the Constitution (Tyson & Brothers United Theater Ticket Offices v. Banton, 273 U.S. 418, 47 S. Ct. 426, 71 L. Ed. 718 [1927]). Holmes was skeptical about his ability to determine the “goodness or badness of laws” passed by the legislature, and felt that in most situations he had no choice but to practice judicial restraint and defer to the desires of the popular will.

Holmes’s dissenting opinion in LOCHNER V. NEW YORK, 198 U.S. 45, 25 S. Ct. 539, 49 L. Ed. 937 (1905), is recognized as his most famous opinion. It is based on the idea of judicial restraint. In Lochner Holmes disagreed with the majority, which struck down a New York law that limited the number of hours a baker could work during a week. The majority held that the law violated the “liberty of contract” guaranteed by the FOURTEENTH AMENDMENT, which provides that no state is to “deprive any person of life, liberty, or property, without DUE PROCESS of law” (§ 1). In his dissent Holmes suggested that the majority had based its decision on its members’ personal ideological preference for freedom of contract, and not on the Constitution. He said it was improper to overturn a legislative act simply because the Court embraced an economic theory antagonistic to government work regulations.

In lieu of butchering Holmes words, Obama should study the man and his words much closer. I’d be embarrassed for the man if he was worth pitying.

For good measure a couple of choice Holmes quotes Barack Obama perhaps should pay particular attention to.

If there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought — not free thought for those who agree with us but freedom for the thought that we hate.

“Young man, the secret of my success is that at an early age I discovered I was not God.”



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