In this series, however long it goes, I will examine Holmes' opinions for what they show about the influence of his personality and his pragmatism philosophy. I will not be examining them for legal soundness, although that will probably inevitably come into play.
Holmes was sworn in to the high court on December 2, 1902. Very quickly by today's standards he was assigned to write an opinion for the majority. That came on January 5, 1903 in Otis v Parker, 187 U.S. 606. These are the portions of the opinion that stood out to me on the foregoing criteria.
But general propositions do not carry us far. ...[I]t by no means is true that every law is void which may seem to the judges who pass upon...based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view...Otherwise, a constitution...would become the partisan of a particular set of ethical or economical opinions...
...a deep-seated conviction on the part of the people concerned as to what that policy required. Such a deep-seated conviction is entitled to great respect.
No court would declare a usury law unconstitutional, even if every member of it believed that Jeremy Bentham had said the last word on that subject, and had shown for all time that such laws did more harm than good.
In this opinion, affirming the California Supreme Court that the California Constitution, in a stock speculation provision, did not violate the 14th Amendment of the U.S. Constitution, Justices Brewer and Peckham dissented without opinion. In Justice Holmes' first five majority opinions, Justice Peckham dissented twice, evidence of a serious difference of jurisprudence. Today we are used to very long Supreme Court decisions with lengthy and bewildering concurrences and lengthy dissents. Holmes' opinion here is lengthy for that time, although only five pages long. There was no written dissent from Brewer and Peckham.
Right away we see multiple examples of Holmes' pragmatism.
1) "general propositions do not carry us far." Pragmatists detest little so much as general naval contemplation. "What is the cash value?" they ask impatiently. What does it matter for the ordinary man who stubs his toe that there is philosophical difference of opinion on whether a rock is "real"?
2) Neither do judges "conceptions of morality". There are others, you know? What does any conception of morality have to do with it? What is the cash value of morality? This is the great issue for me and pragmatism’s skeptics. Pragmatism explains everything we need to know, except what a man is willing to die for. It is an amoral philosophy.
3) "Considerable latitude must be allowed for differences of view". Pragmatists want to "keep the conversation going"; Calling a person "wrong" or egad, "immoral" is just about their third rail.
4) "deep seated convictions". That is the sine qua non for pragmatists. In his Memorial Day Address Holmes lauded the deep seated conviction of those who fought the Civil War to preserve and extend the enslavement of Black people, who killed Holmes' friends and thrice-wounded him. Noble.
5) Jeremy Bentham. Holmes was an intellectual, a truly learned man who knew the writings and sometimes the persons of his time who wrote learned texts. In a later opinion he writes that the Constitution does not enact "Mr. Herbert Spencer's Social Statics."
