From Justice Holmes (1905) to Judge Sotomayor (2009) — VOICES for REASON

Those following the debate over Judge Sonia Sotomayor’s nomination to the Supreme Court may be interested in my article, recently published online free of charge, in The Objective Standard.

In that essay, “Justice Holmes and the Empty Constitution,” I focus on the constitutional theories of Justice Oliver Wendell Holmes, Jr., as reflected in a single dissenting opinion written in 1905 in the case of Lochner v. New York. Although the details of the case are long forgotten (it involved a law setting maximum hours for bakeshop workers), the various Justices’ opinions on constitutional interpretation have had lasting impact.

Holmes’s central point was that the Constitution does not embody any fundamental principle defining the relationship between man and the state—a point that would come as news to the Founding Fathers, who expressly declared their intention to form a government that would protect individual rights against the state. In Holmes’s view, it’s not a document for preserving liberty or implementing any political view at all. Rather, it’s an empty vessel into which society pours its ever-shifting, subjective opinions of what conduct should be permitted and what should be banned.

The Sotomayor nomination is a logical consequence of this Holmesian orthodoxy. If the Constitution is not anything in particular, then we don’t need Supreme Court justices who are committed to interpreting it objectively—there’s nothing substantial to interpret. And if there are no enduring individual rights, then the Court’s job is simply to make sure the Constitution is not seen as imposing obstacles to the process by which social views coagulate into law.

Since white males, on this view, have historically shown themselves most likely to block social progress by overturning laws based on some imagined constitutional barrier, the Supreme Court needs to “represent” women, Hispanics, gays, and a hundred other counterbalancing political pressure groups. Sotomayor is by this standard the perfect nominee. She will give free reign to her “Latina soul,” unburdened by any need for impartiality or objectivity. Impartiality, in her words, is nothing but an unreachable “aspiration” which “denies the fact that we [women and people of color] are by our experiences making different choices than others.” Objectivity? No such thing. “Personal experiences affect the facts that judges choose to see,” she casually admits, and in any event, “‘there is no objective stance but only a series of perspectives.’” The bottom line? A Latina judge will typically “reach a better conclusion than a white male who hasn’t lived that life.”

In my article, I describe Holmes’s self-satisfaction in feeling “the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought.” Well, here we are, still moving to the measure of his thought, as proven by the fact that an emotionalist such as Judge Sotomayor could be nominated to the Supreme Court.

Those who are interested in challenging her confirmation may want to start, not by reviewing her hundreds of opinions, but by studying Holmes’s short, powerful dissent in Lochner v. New York.