ConfirmThem

By AndrewHyman Comments () / Email this page » / Leave a comment »

Wendy Long and Stephen Presser have an online discussion about this whole judicial nomination business. They both are correct that --- by and large --- this is a contest between two camps: those who believe in the rule of law, versus those who believe in the rule of judges.

Presser and Long characterize Justice Oliver Wendell Holmes as having been a leader of the latter camp, and therefore Presser and Long are scornful of the old “Yankee from Olympus‿ (not scornful of his military service, but of his judging). However, Holmes --- also known as “The Great Dissenter‿ --- was evolving in the right direction. Teddy Roosevelt nominated him in 1902, and he was confirmed by the Senate TWO DAYS LATER. Holmes then served for 29 years, retiring at the nice round age of 90, in 1932.

One of his last dissents was in 1930, after the Great Depression had struck. Perhaps the stock market crash influenced his thinking. In any event, here’s what Holmes said, in Baldwin v. State of Missouri, 281 U.S. 586, 595 (1930) (joined by Justices Brandeis and Stone):

I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the States. As the decisions now stand I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. . . . Of course the words "due process of law" if taken in their literal meaning have no application to this case; and while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the States, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court's own discretion, the validity of whatever laws the States may pass. . . . It seems to me to be exceeding our powers to declare . . . a tax a denial of due process of law. . . . by evoking a constitutional prohibition from the void of 'due process of law' when logic, tradition and authority have united to declare the right of the State to lay the now prohibited tax.

I would only add that it is never too late to correct a gross misinterpretation of the Due Process Clause. Incidentally, Holmes became the oldest Supreme Court Justice in history. The youngest was Joseph Story, at age 32.