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Oliver Wendell Holmes & Obama Care

Oliver Wendell Holmes

Oliver Wendell Holmes

Yes, you remember now, Holmes was a Supreme Court justice — but that was several decades ago, maybe a century ago, right? Just to refresh your memory, Oliver Wendell Holmes was an Associate Justice of the US Supreme Court from 1902 to 1932, when he retired at age 90. He’s one of the most widely cited Supreme Court justices. He often said that judges decide first and then look for the laws and precedents that will justify their decisions. He wasn’t being witty or making light conversation. In his very first law review article, written in 1870, he said, “It is the merit of the common law that it decides the case first and determines the principle afterwards.”

That may strike you as exactly the reverse of what should happen. But nothing that Holmes came across in his long life as a lawyer and judge made him change his mind. Indeed, he once told his fellow supreme court justices that he could take any established principle they wished to cite and he could use it to uphold or reverse any decision. Holmes may have spoken or written in ways that startle us, but by and large he was right in his view of how judges decide. Or how we all decide, for that matter.

You’ve noticed that Supreme Court decisions are generally not unanimous. Judging whether or not a law is constitutional requires that the justice interpret the Constitution. And — Surprise! — interpretations differ. Yes, old Oliver Wendell Holmes was right. Decide the case first and determine the principle afterwards.

We do need a national health insurance plan. Even Chief Justice John Roberts saw that right away. The reasoning came later, fashioned rather like a corkscrew, but it got the job done. We applaud the Chief Justice.

 

More Notes


Tim Carmody, in his excellent piece, "How Haiti Became Poor", notes that President Trump's racist policies and vulgar language have sullied the word "shithole" which used to be one of the all-time great swear words. He's right. It's another terrible power this careless President wields.