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Political Ideas of Justice Holmes.

David H. Burton. Fairleigh Dickinson University

Press and Associated University Press. 0 8386 3457 5.

American history is as strikingly marked by the pronouncements of its Supreme Court Judges as by the achievements of its Presidents and the legislation of its Congresses. Indeed four Justices left a sharper impact on their times -- and later -- (Marshall, Holmes, Brandeis and Frankfurter) than perhaps any but six Presidents (Washington, Jefferson, Jackson, Lincoln, Franklin Delano Roosevelt and Lyndon Baines Johnson). Indeed, one man was unique: that |good Ohioman' William Howard Taft served both as Chief Justice and as President, though not, of course, simultaneously. And he was the heaviest physically as well as one of the most learned: he weighed three hundred pounds.

Not all who read this thus far will agree with the choice either of Justices or of Presidents as persuaders; and may be irritated even more by the omissions than by the inclusions. But it would be hard to quarrel with the view that Oliver Wendell Holmes was one of America's great judges, richly experienced, liberal, wise and-fortunately-long-lived. And since he had also almost a Franklinesque capacity for letter-writing--witness his correspondence with Harold Laski, Franklin Ford, William James and Sir Frederick Pollock, to cite only a few-any biographer is swamped by material.

David Burton is thus a brave man. He masters a voluminous correspondence and a mass of legal judgements in order to attempt a digest of Holmes' political views. His is a readable and fascinating commentary on an American immortal, who was a soldier, scholar, jurist and philosopher; he happened, also, to be a famous and liberal son of a less liberal but equally distinguished father. His view of law was a product not of autocracy but of scepticism.

Like other Supreme Court Justices, Holmes had a clear philosophy of government, even if he, like them, judged cases on their merits. But few were as significant as Holmes in their blend of respect for the authority of the State legislatures and Congress on the one hand with -- on the other -- their dissents in support of liberal causes -- like shorter working weeks and in criticism of child labour. His judgements were clear--peppered with aphorisms--and paradoxes. In one of his most penetrating chapters, |Theory as Construct', David Burton follows in the steps of Laski and Frankfurter, to conclude that |the Congress was the supreme political branch of government. Presidents were ordinarily passive agents executing the legislative will ... It was Congress making law that the Court was expected to pass judgement on ... presidents at best were only politicians'. But he is fully aware, tested as Holmes had been in the Civil War, that after the Fourteenth Amendment |the central government grew more prestigious because it grew more powerful. Moreover Holmes bridged the years from the Civil War, in which he was seriously wounded three times, to FDR's New Deal. The liberal and the Puritan was centralist and nationalist also, so that David Burton's character study forms an urbane and shrewd analysis of seventy years of rapid and total change, and of the need for social reform as its legacy.
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Author:Wright, Esmond
Publication:Contemporary Review
Article Type:Book Review
Date:Sep 1, 1993
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