Advisory Opinions - Progressivism and Eugenics in the Court of Justice Holmes

Episode Date: July 30, 2024

Sarah and David welcome special guest Anthony Sanders, director of the Center for Judicial Engagement at the Institute for Justice, to eviscerate Justice Oliver Wendell Holmes Jr. Plus: David’s rant on Presumed Innocent. The Agenda: —Judicial engagement —Social Darwinism and “putting to death the inadequate” —Progressive forgiveness for progressives —First Amendment —Civil rights and judicial abdications —Holmes’ defense of sterilization —The difference between judicial progressives, liberals, and libertarians —Spoiler alerts for Presumed Innocent Show Notes: —Kelo v. New London —Institute of Justice’s Bound by Oath podcast series —Oliver Wendell Holmes’ The Common Law —Moore v. Dempsey —Buck v. Bell —Albert Alschuler’s Law Without Values —Giles v. Harris —Bailey v. Alabama —Buchanan v. Warley —Skinner v. Oklahoma —Lochner v. New York —Minersville School District v. Gobitis Advisory Opinions is a production of The Dispatch, a digital media company covering politics, policy, and culture from a non-partisan, conservative perspective. To access all of The Dispatch’s offerings—including Sarah’s Collision newsletter, weekly livestreams, and other members-only content—click here. Learn more about your ad choices. Visit megaphone.fm/adchoices

Ready? I was born ready. Welcome to Advisory Opinions. I'm Sarah Isger, that's David French, and we've got something special in store for you guys today. At the end of this podcast, we will do our rant on the end of the Apple TV series, Presumed Innocent. David has thoughts. So, spoiler alert, when we get to the end of the main show, there's going to be some

presumed innocent talk if you haven't finished it. Also a couple of notes from our last episode about election law. But we're saving the boneless chicken wing fiasco for the next episode. Second billing, of course, will be Justice Kagan's remarks to the Ninth Circuit, as well as some various insundry. There's a Fifth Circuit FCC case. But yeah, that's all for the next episode because this episode, the entree, the appetizer, the dessert is Anthony Sanders. Anthony is at the Institute for Justice,

great organization, but that's not why you're here, Anthony. You're here to crap on a dead guy who can't defend himself. Exactly, exactly. That's something I'm very good at, by the way, highly skilled over the years. You win all those debates. You cannot be beaten. That's right. And thanks so much for having me on, guys. Very much long-time listener, first-time caller. And one thing we do at IJ is we promote the philosophy of judicial engagement,

which we like to think is a happy little medium between judicial activism and judicial abdication, which is where judges, right, just let the majority do whatever it wants. And this guy, Oliver Wendell Holmes Jr., is the embodiment of judicial abdication. And so, in what we do at IJ, the cases we have, we're probably most well known for, if you know of, for anything. It's Kelo versus New London, the eminent domain case, but we've done all kinds of other stuff. And what I do at our little Center for Judicial Engagement is promote the value of judges enforcing the Constitution.

And one of the things we do is a documentary series called Bound by Oath, where we talk about legal history of the Constitution. And I have found in helping out on that documentary, which is mostly done by my colleague, John Ross, is that over and over again, this shadow of justice homes comes up. You can't practice in the area and write in the area of enforcing constitutional liberties without swinging a cat and hitting justice homes. So there's something about him more than other past justices who have written lots of opinions that gets at the core of what it means to have a constitutional government, and he is very much on the other side of that.

So before we just dive into the indictment of Justice Holmes, is there anything, we're not going to come here and like crap on his military service for the Union Army, are we? We're just talking, we're moving forward from that, right? I mean, how comprehensive is this trashing here? Yeah, we're going to do a lot of trashing, but I do have some disclaimers to give about his good side.

So he does have some, you know, he wasn't a serial killer. He just kind of believed, believed that you would expect. Yeah. Right? Okay. Yeah, a high one, of course. You would expect a serial killer to maybe have the beliefs that he has,

but he didn't act out on them. So the thing that know about justice, and I'll get to those in a moment, but the thing to know about Justice Holmes is I think the genesis for our podcast today, right, is that your friend Jonah was looking to cast Justice Holmes in the same light that he likes to cast Woodrow Wilson. I don't know if you have the cue, the music there, but you know, that guy. So say what you want about the tenets of Woodrow

Wilson, to steal a phrase. At least he had an ethos. Woodrow Wilson was a committed progressive. He was in some ways a terrible man. He was an out and out racist. But he had this vision of the Hegelian vision of the state sub being an organism and helping the people. He believed in that stuff.

Just as Holmes at bottom, really was a nihilist. If you can describe him having any belief system, it's true social Darwinism. He thought that life is struggle, only the strong survive, to steal another phrase, and that that's really the only right and wrong in the world. So you would understand a serial killer, you know, fighting for yourself out there in the jungle.

But he did have some upsides. I'll get to in a minute. But I think it's really important to enforce this. He was a fellow traveler of progressives. But he did not really believe what they believed about, you know, social welfare legislation and all that stuff with one incredibly important exception, and that's eugenics legislation. He was all about breeding the race to be stronger and even

the race to be stronger, and even killing off some of the weak along the way, which is beyond what almost everyone else in America at that time believed about eugenics. Here's just a few things that he had to say about eugenics and law more generally. I take no stock in abstract rights, and I equally failed to respect the passion for equality. All of my life, I have sneered at the natural rights of man. I see no reason for attributing to a man a significance difference in kind

than that which belongs to a baboon or to a grain of sand." And on eugenics itself, he wrote of substituting artificial selection for natural by putting to death the inadequate. So in other words, we got science to the point where we can just do this ourselves instead of letting the natural system sorted out. He wrote a provenly of killing, quote,

everyone below standard and putting to death infants that didn't pass the examination. Now I think in his mind, this was like a future where, you know, we got the science a little bit more worked out, but he is above and beyond almost any Anglo-American eugenicist of that time. It's not like it was part of, you know, what he believed, of what was going on at the time. He went above and beyond that. Okay.

I want to back up for a second. Oliver Wendell Holmes Jr., born in 1841, fought in the Civil War, as you mentioned, David, honorably. He's appointed to the Supreme Court by Teddy Roosevelt, serves on the court from 1902 to 1932, and becomes, you know, potentially the most famous sort of historical Supreme Court justice. I mean, when you think of, you know, old Supreme Court justice, old tiny whatever, like, you're kind of picturing Oliver Wendell Holmes. And his book, The Common Law, becomes

biblical in a sense, like right next to Blackstone's commentaries. Except nobody reads it. But yeah. I read it before law school. How dare you, sir? How dare you. I think no one reads it and really gets what he's talking about. No, yeah, no, I didn't understand one word I wrote, I read. But I actually visited him before I decided to go to law school over at Arlington National Cemetery when I was working on the Hill and at Harvard Law School, highly feted as being from there. He went

there both for undergrad and law school and taught there as well, I believe. Why did he become such a luminary figure and so celebrated for the last hundred years? Yes, great question. So there's a narrow answer and a bigger answer to that question. The narrow answer is he had a group of fanboys around him later in his life, most importantly, Felix Frankfurter, who then went on to the Supreme Court. And they were committed to him. Now, they weren't eugenicists in the same way, but they loved what he was doing by trying to let social welfare legislation go through. And we'll talk about that struggle in a little bit. And they promoted his legacy afterward. The funny thing about his legacy is

his papers were under lock and key at Harvard for a long time. A lot of these quotes are actually from his letters that I just read and they didn't come out until really the 1980s. A series of people tried to do an official biography of him and just kept failing. One of them is the famous contract professor Grant Gilmore. He spent 15 years with Holmes' papers, and yet never came out with this biography.

Here's what he said about that experience. Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was a myth, concocted principally by Harold Lasky, The great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was a myth, concocted principally by Harold Lasky, who was a British labor politician, and Felix Frankfurter about the time of World War I. The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in

the course of human life nothing but a continuing struggle in which the rich and powerful imposed their will on the poor and weak." So that's the narrow answer. The larger answer is Holmes, as seen as a champion of the Pregnant Rest of Cause, has kind of swept up with all the other folks of that time on the progressive side of things, FDR, Wilson, and others. And he's just seen as someone who was fighting for, you know, against market fundamentalism, yada, yada, yada, which is been debunked as a myth in later years. But that was just the, the conceptual wisdom for a long time.

Can we also talk about his most famous quote? The life of the law has not been logic, it has been experience? Yes. What did that mean? Yeah. So that sounds profound. But the thing about that quote is it's not like it was a novel insight.

That's about the common law and the evolution of the common law. And that wasn't new. What he added in the common law and then this later essay called The Path of Law, is really trying to decouple law from values. And I'm not putting that as part of my indictment. I'm not a jurisprudential philosopher, and so I'm not as in detail about those things. Some people, a Judge Posner was probably his biggest modern champion in this way, think

that he was tremendous and that common law is the greatest book on law ever written by an American. And some are very much of the other persuasion. But he had a big impact on, say, having law for purported non-value, non-moral judgment ends. Law and economics, the whole area is arguably to some extent descended from him. But what he really did that damaged the law is what he did in his constitutional jurisprudence in my opinion. But I'll give you now the upside of how he wasn't all bad. You're right, David, he fought valiantly in the Civil War. He enlisted in the Union Army before he graduated,

he was going to graduate that spring, he had to be called back to do his exams. He was shot three times, once in the chest, once through the throat, and once in the ankle. Those injuries which would keep him out and then he would come back actually probably saved his life because his unit was decimated during the war. Before the war, he was of a notable Boston family.

His father, Oliver Wendell Holmes Sr., was a doctor and a man of letters, helped start the Atlantic Monthly. He was very famous in his own right. He was of his social class. He seemed to have been a mild abolitionist. His mother was an abolitionist. But after the war, he seemed to have gotten these new social Darwinian beliefs. And who knows, maybe it's because of the terrors that he saw in the war, maybe something else.

But that's what happened to him afterward. He is famous for some of his free speech opinions later in his career. And we should note that. Some people say that even there he's kind of doing it in a social Darwinist way like he wants a marketplace of ideas so like people can fight it out because he likes those metaphors. But even so yes we we cite some of his free speech work at IJ at times. He had seemed to have a soft spot for criminal defendants at times. He wrote this case Moore versus Dempsey about a mob that was trying to impact a jury verdict.

He seems to have a interesting but later in their marriage, a good relationship with his wife. His wife also was an odd duck. They met at the age of 10. They didn't marry until they were about 32. She was a bit of a recluse at times. But she did beautiful embroideries, I guess, that were displayed in museums.

But then when they moved to DC, when he went on the court, she destroyed most of them for some reason. They never had children, by the way, because it may have been because she had rheumatic fever early in their marriage. He was a brilliant wits, he was utterly brilliant, but he seems to be a great conversationalist.

If you were going to an Edwardian dinner party, Justice Holmes is the guy you would want to sit next to because it would be an extraordinary evening. That doesn't mean that he wasn't a monster. Our sponsor for this episode is the American Property Casualty Insurance Association, the primary national trade association for home, auto, and business insurers.

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It's time for sensible reform. To learn more about third-party litigation funding, visit apci.org. That's apci.org. Okay, you've talked about some of his virtues and many of his virtues are pretty impressive, but we're about to get to the indictment and you've already read some of his views, which are pretty reprehensible. So, but my question is,

I know elements of the indictment and it's really bad. What's coming is really bad. And so the question I have is, to what do we account the historical halo around him? And my theory is this, and I want you to react to my theory, is once you get sort of labeled on the progressive side of history, then you kind of have the historical wind at your back.

And the other person like this would be a Woodrow Wilson. So Woodrow Wilson spent generations sort of in the afterglow of this was a great man, a great president. There was, he was considered a visionary in some ways. And now there's been a historical reappraisal overdue. And we realized sort of much more the, all the worst elements of his story, which are terrible. And I wonder if that's the same with Oliver Wendell Holmes,

that there he was sort of on the progressive side of history, so to speak. And that meant that he had the historical wind in his back. He had kind of a historical halo and he's overdue for a reappraisal. Is that, would that be a fair assessment of why we think so? Kind of by default, think so highly of him? I think that's absolutely right, David. There's really no other way to understand this continuing myth of Holmes.

I will say he has looked more skeptically than he used to be. There's been some good scholarships that, scholarship that has come out the last couple decades. I mean, even on a, you even on just Buck v. Bell alone, which we'll get to in a little bit, should be an indictment against him. But some of this was in his letters and it took a while to get out there. But yeah, people don't want to be against people on their team, so to speak,

because then, well, that might mean there's bad things about other people on my team. But the thing that good progressives listening, but modern progressives, which are different than progressives of his day, should understand is you can be into some of the stuff he was a fellow traveler with at the time and still think he was a bad guy. Some of what I have to say today I've taken from a great book by Professor Albert Al Schuller, who was at the University of Chicago, wrote a biography of Holmes.

And he says, champions of the Holmes myth appear to be the equals of Ptolemaic astronomers in devising epicycles to maintain their theory. So bad thing comes out about Holmes. Well, there is this. Another bad thing comes about Holmes. Well, you can do. I think Judge Posner is probably an example of that, because he was a big Holmes fan boy himself. But yeah, it needs to be understood, though, that you can think Holmes was a bad guy and still be on the progressive side of things. That's

okay. Well, this gets to something David and I at least talk privately about plenty, which is, you know, calling someone a Republican, you now are going to have to really distinguish between whether you mean a Republican from the Goldwater Reagan Bush era or a Republican post 2016. Maybe we'll start calling those conservatives versus Republicans. We obviously already use the term MAGA.

When it comes to progressives, I think it's really important to distinguish that the progressive movement that included folks like Teddy Roosevelt and Woodrow Wilson, that was across political parties. It is just not synonymous at all with what today's progressive movement talks about or thinks or how they're aligned with one political party, for instance. Yeah, there's commonalities, of course. The progressives of today have their ancestors of those progressives, but they changed over time. There were a lot of changes after. The MAGA movement has their ancestors in the Republican Party, like the Conservative Party

of Goldwater, but they have literally diametrically opposed views on several areas. Yeah, absolutely. I'm glad you mentioned Teddy Roosevelt and because- Who appointed Holmes. Right. And that in itself is a great story. I don't know if it's part of the indictment, but Holmes in the late 1800s at some point, 1890s, gave a speech where he was really into this, you know, social Darwinist rhetoric at that point, and talking about you need to fight,

you need to struggle through life, and kind of like a motivational speaker type of thing. And TR at the time, before he was even vice president, saw this. And so later, when he was contemplating who to put in the court, he said to Holmes' friend, Senator Lodge, by Jove, that speech of Holmes was fine. So he was predisposed to put Holmes on the court.

He also needed someone who would be on side with him for some of the funny business he was doing in the Philippines and the court was pretty split at that time on that so just like a lot of people get on the court for something very in the moment that is right forgotten about years later Holmes was basically put on the court partly for that reason TR even had a secret meeting with Holmes where he got him to you know commit commit, yeah, I'll be your guy in the Philippines, and then gave him the job, a meeting that was later

denied. I guess later he was kind of wishy washy on some of those things, and so TR called him a bitter disappointment. But that's a side note. I feel like TR was bitterly disappointed in a lot of people by the end of the whole thing. Can we walk through perhaps a little more systematically some of Holmes's jurisprudential buckets? Yes. So you mentioned the First Amendment. Can we talk some cases? Because it also changes

over time. And the court's jurisprudence on the First Amendment changes dramatically from when Holmes joins the court to, I guess, about 20 years after he leaves, we see huge swings in what the First Amendment means. Yeah. So the First Amendment really didn't... So this is not, I'd say, mostly part of the indictment. The First Amendment really wasn't interpreted at the US Supreme Court level until near the end of World War I, where there were these Espionage Act cases coming of socialists and anarchists who were writing things pretty tame by today's standards, but were basically anti-American.

And so he has his first couple cases where he makes the famous phrase, fire in a crowded theater as an analogy to what you could do to ban free speech. And then it seems that over the next just months, his thinking on the issue changes and he writes his famous dissent in Abrams, where he says that we should protect this speech and we should protect the marketplace of ideas. People argue about whether he really changed his mind

or it was just there were different facts in that case or what have you, but it does seem that he took a little bit more of a civil libertarian view at that point and later. It could be he was like 78 by that time, so it could just be a little bit of getting older. Also Brandeis was in the court at that time, and Brandeis, he was not a nihilist. He was a civil libertarian. He hated the 14th Amendment, but he liked some other parts of the Constitution.

And so maybe he brought Holmes along a little bit on those issues as well. Then there were more First Amendment cases into the 20s and early 30s that Holmes wrote on. And he and Brandeis kind of pushed the court in a bit more of a First Amendment direction. And so that's why, you know, even if maybe he wanted it for social Darwinist reasons, that law still lives with us today. And so we'll take it. All right. Civil rights issues popping up in the first 30 years of the 20th century. Yes. So Holmes is placed on the court in 1902. And he writes a series of decisions, which are, as we say at IJ, judicial abdicationists.

So let's take the first one, not a super memorable one, but I think it should be, Giles versus Harris, 1903. So this is about the state of Alabama basically disenfranchising its entire black population. So blacks voted at a pretty good rate before 1901 in Alabama. Then they have this constitutional convention, which is seen by everyone openly admitted to be the white supremacist convention. And so they try to change all kinds of things about Alabama law, including voting rights

to cement white supremacy. And one of those is that a voting official could deny you for nebulous reasons not voting. And by and large, blacks were not allowed to vote because of this. So there's a lawsuit for an injunction, actually under what is today's section 1983, goes up to the court and Holmes says, you know, I get you're asking for the right to vote, but you're also saying the whole system is just unconstitutional and that doesn't make sense that you get an injunction to vote in a system that's unconstitutional and so we're gonna just throw the case out. Sounds too clever by half. There's also some indication, he says, well, this problem of voting rights is just too big a

deal for the court to solve, so I'm gonna wash my hands of it. A few justices dissent, including your friend Sarah, Justice Harlan, and said, you know, this is pretty run of the mill of what courts do, try to issue injunctions when there is a violation of the Constitution, but in any case, that's that case. Then a few years later, there's a case Bailey versus Alabama. This is about Cooley laws in the South. So there were a number of states that made it a crime

to break a labor contract. This fellow Bailey, he got advanced $15 to work for an employer. He worked and got most of the work done, but then it seems not because he was trying to skip out of town or anything. He didn't complete the work. And so, those few bucks that the employer paid him or he didn't work, that becomes a crime. And then he's sentenced to hard labor for a number of months. And often in this system, people would

be put into working for that very employer that maybe they just didn't cross a dot every I and cross every T for. So the court says, look, if you add all this up, this is indentured servitude. This is a 13th Amendment violation. And the court cites the Civil Rights Act of 1866 and a whole bunch of other things that say, come on, this is like why we fought a civil war, so you can't do this homes dissents and he says hey This is just about criminalizing Conduct states do that all the time

We don't need to pretend that this says anything to do with race because it's not it's racially neutral Right because a plessy is on the books. And so I think this is perfectly fine continuing on civil rights Let's get to one of the big ones, Buchanan versus Worley. This is a 1917 case. And if there is one case in constitutional law that is underrated, I would nominate this case as that one. So, this is about explicit racial zoning. Zoning was just coming in as a thing at this time. It's then blessed constitutionally by the court a few years later. Of course, the sad history of zoning is it's been used for racial segregation in all kinds

of ways through minimum lot sizes and all that business. That's become much more understood the last few years, which is a really good thing. If this case had gone the other way, there could have been explicit racial zoning and segregation could have been even worse than it was. So the court unanimously says that you can't have this. So what the law said is if there's a majority of white people on a block, a black person can't live there. If there's a majority of black people on a block, white person can't live there, right? Separate but equal. So what's

the problem? Problem is the court says this is interfering, interfering with property rights. You should be able to alienate property as you wish. And so they distinguish that plessy line of cases and say this is unconstitutional. Now, Holmes drafted a dissent in this case that for some reason he didn't publish. But we have a copy of the dissent. You can find it online. Basically, he says, well, this seems like it wasn't, we don't have jurisdiction because it was kind of a sweetheart suit test case that was drawn up. And that's to some extent true as to how it actually got before the court. But also he says, you know, separate but equal and there's not much of a diminution in value

because if you can't sell to a black person, well, at least you can sell to a white person. And so I don't see the constitutional problem. Whatever reason, it wasn't published. Now add all those up, you see two themes. One, he doesn't care too much about racial segregation, but two, he just doesn't think the government or the court should get involved when the majority wants to do something. That's all with this social Darwinian. It doesn't make sense, right? Because the real social Darwinists would just say,

it just have a dictatorship and might makes right. But he kind of has this halfway like democracy is the law of the jungle and I'm not getting involved. One of the things that, you know, when I think of Oliver Wendell Holmes, and I don't wanna skip to the main event, but I do wanna talk about the main event. The main event is Buck v. Bell, right? His eugenics opinion. Yeah. Buck v. talk about the main event. The main event is Buck v. Bell, right?

His eugenics opinion. Yeah. Buck v. Bell is the main event. So let's not just skip to the main event, but let's talk about Buck v. Bell. What's going on there with that opinion? How does something like that happen in American law? Tell the folks what Buck v. Bell was. Let's do the main event.

We want to be sure to touch on Lochner too, but let's do Buck V. Bell, because that's why the folks are tuning in. Lochner can be for dessert. Oh, I love that. I love that. So, Buck V. Bell. This is 1927 case, so near the end of his time on the court, you know, when he supposedly mellowed, and I think he really did mellow in some ways on other issues, but he's still a raving eugenicist, even at this point. So after World War I or so, states were, as part of the progressive program, states were adopting sterilization laws. So this really is coming out of the whole social Darwinist view of the world.

And so if you were judged to be of poor, feeble stock, we don't want you propagating and weakening the race, and so we're going to sterilize you. And so it's justified on, you know, the mentally handicapped or what have you, we could sterilize these people. How it's actually implemented a lot of the time is it's really just social undesirables, people of loose morals, you might say, that are subjected to this. Now, the thing is, and a lot of this is detailed in Judge Sutton's book, 51 Imperfect Solutions, that I highly recommend to everyone. A lot of state courts had found these laws unconstitutional, either under a federal constitution or their own state constitutions.

And so, they weren't really being implemented all that much. Virginia had a version of one of these laws, and they had had some trouble in court, and so they wanted to really get a test case in a good way for them that would cement its constitutionality. So there was this institution in Virginia called the Virginia Colony, and it had an inmate named Emma Buck. Now, Emma had had a relationship with a man, I think they were married a couple of times,

they had at least three children. They probably had pretty rough lives, Not a lot is known about her. But she had one of her children was Carrie Buck. So Carrie is born, I think she's not even illegitimate. It's said that she was later. Her parents remarried right before she was born. But because of the home situation, she's raised by a foster family.

So Emma at some point is institutionalized, and it seems she was really just institutionalized because she was playing around or seemed to be playing around. She was accused of prostitution. I don't even know if that's true. And Carrie is raised by this family, and when she's getting near the age of 18,

she is raped by a nephew of the family and she gets pregnant. To deal with this, the family sends her to the same mental institution, the Virginia colony. She gives birth to a child. The child is later said to be a feeble-minded, like she's said to be a feeble-minded. None of that is true. Carrie did fine in school, it seems.

There's no reason to think she was mentally handicapped in any way. Her child, tragically, after the case, died of measles, about the age of 11. But while she was alive, she seems to have done well in school herself. So none of these three women are feeble-minded, as we would call it today or really have any reason to think that, setting aside of course, even if they were, they should not be sterilized. So Virginia though, picks Kerry for some reason as the woman for the test case. So the way the system works is it goes before the superintendent or the board of the Virginia colony.

They say, yeah, she should be sterilized. She's given a lawyer. The lawyer is in cahoots with the colony to do this test case. So the record doesn't have most of these facts I just told you in there. It's pretty much a sham proceeding. It goes up, goes to the highest court in Virginia, and then it goes to the US Supreme Court. So the only defense we can give of Justice Holmes is some of this wasn't in the record, but he didn't really care.

He should have known that something was up, but this was like, this was his big issue, finally, after all these years coming before him, and he was going to seize it with relish. So he says in the opinion, Carrie Buck is a feeble-minded white woman who was committed to the state colony above mentioned in due form. She is the daughter of a feeble-minded mother in the same institution and the mother of an illegitimate, feeble-minded child. He goes on and he says, oh, there's all this process that was given here. Everything is going as fine. And he then analogizes to drafting people into service in war.

And he kind of had to read between the lines, but he basically says, if you can draft men into war and then they're going to die You can do something much more minor like make sure they can't have children And then he gives this uh, some of the most offensive Lines in the history of american law It is better for all the world if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind.

The principle that sustains compulsory vaccination, which had been upheld at that point, is broad enough to cover cutting the fallopian tubes. Three generations of imbeciles are enough. That's it. That's the famous line. Buck v. Bell still has not been overturned, correct? No, although it, a few years later, Skinner versus Oklahoma, the issue comes up again and the court says that it is unconstitutional. So you wouldn't get very far signing it in court these days.

Well, no. But yeah, it's true repudiation is still on the table. I'll give you that. A little like Korematsu in that sense, although Korematsu, at least in dicta, has been overruled in the Trump travel ban case. Yes. All right. I want to do Lochner quickly, if you can give your quick Lochner-Holmesian vibes. Yes.

So, Lochner versus New York can be its own podcast, right? We don't need to go into the facts. People know it's about bakers and hours and all that. The majority says the restriction is unconstitutional based on the facts. Lead dissent by Justice Harlan said, well, actually, it's constitutional based on the facts that may lead dissent by Justice Harlan said, well, actually, it's constitutional based on the facts. Both of them probably could have been written more clearly, but that's what's going on. And Holmes is the only one in his dissent.

He's the only justice who basically says, I don't care what the facts are. The Constitution just doesn't protect this stuff. Other than an extreme, an extreme. When you say the Constitution doesn't protect this stuff, what do you? Liberty of contracts. Yeah. Right. Well, he says liberty of contract, but how he's often read is that, you know, the Constitution

just doesn't enumerate liberty of contract, unlike say free speech later. And that's the way like Justice Scalia, right, viewed the Constitution. Unenumerated rights, oh, we really don't want to protect those. But enumerated rights, yeah, that's what we're here for. Holmes, that is not the message from his Lochner dissent. His Lochner dissent, his majority can really do whatever it wishes. And then he says this line, which I think maybe goes back to your question, David, about his legacy, the Constitution does not enact Mr. Herbert Spencer's social

statics. Herbert Spencer was a basically libertarian philosopher of the 19th century, that wrote about the law of equal freedom. And he was kind of like the 19th century version of Robert Nozick's entropy statement utopia to be real top level. And so he says, you know, Herbert Spencer argues for you should be able to do what you want as long as you don't hurt your neighbor. And so Holmes is saying that's not what the Constitution does. But he cites Herbert Spencer, who today is only remembered really for being a social Darwinist.

Because if you read social statics, there's like a small section that is pretty much social Darwinism. It's been argued how much he really was in that camp, but it's hard to read it otherwise. So people read that today and they think Holmes was against social Darwinism. Look, he's putting down Herbert Spencer. Nothing could be more opposite. He's putting down Herbert Spencer because he's not into protecting rights in the Constitution. And he himself is actually much more of a social Darwinist than Herbert Spencer was. Okay. So this takes us to what I think is the grand finale as the fireworks go off over the bay, in which I think

we define IJ's three buckets here. I don't think they're necessarily, David, I don't think there are three buckets, but I think they're really helpful for listeners to hear about, which is judicial activism, judicial engagement, and judicial abdication. How would you define those three buckets as how you see the legal world at the Institute for Justice? Yeah, you bet. So judicial activism is where courts just, like true judicial activism, is where courts just make stuff up. So you want to implement social policy.

The Constitution doesn't actually say that. But we're going to do it anyway. Give us some of your justices who are your poster children for judicial activism from the past, whenever. Who are poster children for judicial activism? Yeah, I want justices for each bucket too. I want definitions and poster children. Most judges have not been judicial activists. There are times where they have practiced judicial activism. And so I would say some of the members of the Warren Court did that at times, but at other

times they were very judicial abdicationists. So I'll leave it at that. For judicial abdication, right, that's Holmes. That's let the government do whatever it wants, even if the Constitution says that it can't because that's not what judges are for. On judicial abdication, how does that marry up with judicial minimalism? Something, for instance, Justice Frank Furter was a huge fan of, and it leads him to say things that I struggle with, because I disagree with so many of his opinions, but as he's describing it, in the GoBitis case, for instance, about Jehovah's Witnesses, probably a case that David hates the most,

and leads to thousands of Jehovah's Witnesses across the country being subjected to violence in just the month after the GoBitis decision is made, what Justice Frankfurter says is, I don't like this law. I wouldn't vote for this law. But in my reading of it, the Constitution doesn't prevent a state from having a law forcing all students, regardless of their religion, to, I believe in this, what was it, David? It wasn't standing for the Pledge. It was reciting the Pledge maybe, something like that, that the Jehovah's Witnesses objected to. So it was a neutral law and was

being applied in a very Smith-like fashion, which David hates. But this is what Justice Frankfurt described as judicial minimalism. Defer to the political branches where you can. And yes, it takes away some of the counter majoritarian aspects of the court when it's in that gray area of neutrally applicable laws, for instance. So is judicial abdication a meaner word for judicial minimalism or a more descriptive word perhaps? Yeah, I would say, well, judicial abdication

is kind of the end of the spectrum, but judicial minimalism is fairly close to it. Judicial restraint is also, of course, a more polite way of saying a lot of those things. But any time that you have, that you're not taking the Constitution seriously and you're overly deferring to the political branches, that's on the side of judicial abdication. We're not saying in judicial engagement, we're not saying that the government can never win. We're not saying in judicial engagement, we're not saying that the government can never win We're just saying you got to take the Constitution seriously and you can't defer to the to the government just because they're the government That's true of law. That's also true of facts, right? Like the rational basis test. You can just make up facts

That's judicial application. So judicial engagement this sweet spot for the Institute of Justice This is also where, as you say, there's this balance. You want judicial, well, engagement, I guess. You want to bring back the privileges and immunities clause. You want to revisit Lochner-era economic liberties, things like that, that you'd put on the more engagement side. But as you said, there's other things where you still are in the more conservative or traditionally legal conservative camp of judicial restraint, minimalism, abdication.

Yeah, I don't think that's true. I think what maybe you're getting at is we don't want to just make stuff up. Right. So just because we're libertarians doesn't mean we think courts should just, you know, who cares what the Constitution says? We're going to do the right thing. No, you should follow what the Constitution says and not every law is unconstitutional, but a lot more of them are than courts find them to be. Whether now or whether, you know, during Justice Holmes' area, the court wasn't perfect during that time at all. It found some laws to be unconstitutional that were. It upheld some others. It had a lot of problems, even aside from what we've talked

about. But what a good judge should be doing is finding what the Constitution proscribes and then enforcing them. Anthony Sanders, Director of the Judicial Engagement Center at the Institute for Justice, thank you for doing this debate with Justice Holmes. It was vigorous. I felt like. Yeah, I thought he scored a few points. I got more punches in there.

And I appreciate that the sort of aura around this conversation is, I hope, trying to get at some of those distinctions between judicial progressives, judicial conservatives, and judicial libertarians as we continue to explore all those things on advisory opinions. So thank you for coming and helping with that. Yes, thank you very much. Thank you. It's been such a pleasure.

Well, David, that was a treat. Yeah, yeah. A lot of these older cases, I think, are important to remember, you know, that American constitutional history is messy. It is very, very messy, and people contain multitudes. And some people who've written good opinions and done good things have written horrific opinions and done horrific things. It's important to hold those two realities together in our minds.

And I think we probably do need to spend more time. Perhaps in the fall, we'll find a case where we can dig into the economic liberty issues that the legal libertarian movement is focused on. This is some of those licensing cases that you have to have a license to be a florist in Louisiana or to practice horse dentistry in Texas that IJ has really been working on for so many years

with endless frustration. And how you think about that spectrum between having a license for being a florist or a home decorator, but also a license for being a doctor and a lawyer. Like, how are you going to distinguish between those two state police powers? So we'll find a case in the fall for that. But David, two quick notes from our last episode about election law and campaign law. First, fun fact that

I did not know that the reason that Win Red and Act Blue report all their contributions to the FEC, even those below $200, is not out of the goodness of their heart, but is in fact a requirement under 52 USC 30116A6A8. Sorry, oh my gosh, A8, not A6. How dare I get that wrong? So yeah, that's just required under law that there are no anonymous contributions, regardless of the amount, if you use one of those platforms. Second, and this one is just nuancing something I was talking about. I was saying that President Biden running for the nomination of the Democratic Party in 2024 and saying Kamala Harris was his running mate has no legal force or effect because

she's not the nominee. Right. You can, however, run for vice president because there's a nominating convention for that. So if you wanted to have a campaign for vice president in a primary, you absolutely could. And in fact, the regulations include a line for how you would start a pack for your vice presidential run. But that's not what happened here. So it is nevertheless. Well, maybe it's relevant to my point in the sense that Harris could have had that pack and didn't. And they could have split donations to that pack or raised more money into that pack if they wanted. And in fact, I kind of wonder why you don't do that when you're an

incumbent president because you can raise more money that way potentially. But David, let's get to the star of this show. At the very end. The presumed innocent series based on the book by Scott Turow. It was made into a movie in the 90s with Harrison Ford. They made it into an Apple TV series with Jake Gyllenhaal. And remember, we said, I said, do you think they're going to change the ending? And spoiler alert, everyone, if you haven't seen it, save this last few minutes of the AO podcast for another time. So David, they changed the ending.

Oh, changed the ending. So I have so much beef here, Sarah. Unload your beef, I'm here for it. Okay, okay. So my beef is, and keep in mind, as I share this beef, I was excited to watch every episode. Yeah. And then I was angry during every episode.

This is interesting, because there were certain things that I really liked. Please continue. Okay, well, there were some things that I liked. I'll start with what I liked. I thought the DA, Della Cruz, was a fascinating character. The best, so Scott and I agree, husband of the pod, the D.A. Delacruz was a fascinating character.

So Scott and I agree, husband of the pod, we are on a hundred percent mind meld, the best character in the whole show, who we started out really disliking as an actor and character. We came around to believe he was by far the most interesting, nuanced character. And it turns out David, he's British. So that whole like not moving his mouth, chin thing isn't how he talks at all.

That was acting. Like give that guy the Oscar, the Emmy, whatever. I was halfway through episode two and I was like, wait, he's the good guy? Like he was, and through it all, like he was kind of the North Star, sort of of the legal good sense, moral good sense.

And so he was, I thought, really good. I thought the guy who played Raymond Corgan was, I really enjoyed watching him. I thought the kids were really well done for most of the show. So there was a lot. And in Gyllenhaal, I will say this, it was a very compelling acting job, but he infuriated me the whole show

because it's essentially a show about what happens if they indict an innocent asshole. That's the twist on the show, from what I remember from reading the book, from what I, now the very ending also has an unearned twist. But the twist on this- But the twist on the show, I liked, you didn't like that,

it's a story of what happens when you indict an asshole. Yeah, I didn't, and I say this, Sarah- He's an asshole to his family, to his wife, to his kids, to his coworkers, just to his best friend. He's just not a nice guy. Relentlessly. At every opportunity, when he's given, like, people plead for him to be reasonable.

They plead for him to be a decent human being. And he will not do it, Sarah. He will not do it. He even represents himself, which is sort of the ultimate, like, come on, you are such an ego maniacal asshole. And then becomes an asshole as he's representing himself in many ways. And so the thing about it was,

and this is why on the one hand, I couldn't, when it came on, I was like, we're watching it, the new one's out, we're watching it. And the whole time I'm going, he's driving me nuts. It was very compelling and irritating at the same time from start to finish. And so I would just tell people, I think it's compelling and irritating

because at some point you're gonna say, can he just stop? And he will not. He will not stop. It's, I've really literally never seen anything like it. This is interesting. So what you disliked about the show, I liked because I think it's more, sadly,

a form of legal realism portrayed on TV. Yeah, true. You know, we forget whether we talked about this many years ago, that the Me Too movement seemed to take down people who everyone hated already. Yeah, right. So, the criminal justice system is going to be more likely to indict someone who everyone thinks is an asshole. Yeah.

And this sort of portrayed that. Now, what I also found interesting is that in order for it to be even remotely believable, that the jury would acquit him at the end, the case had to be useless. And it was. They had no case against this guy. There's no world in which he would have been convicted.

But the reason that it was compelling in a close call is because he was such a dick. And so you're like, maybe the jury will convict him, even though there's no evidence that he committed this crime in any realistic sense. I also thought it was really fun. So Maggie Gyllenhaal, Jake Gyllenhaal's sister is married to Peter Sarsgaard,

who plays the bad prosecutor. Yeah, Tommy Molto. The number two under the DA, who you and I both said we think is the star of the show. So Tommy Molto is also bad. The prosecutor and the defendant are both bad guys in this show, and they're in-laws. So funny.

But I will say, I feel like I became a bigger fan of Peter Sarsgaard, who plays the prosecutor who actually tries the case. As an actor, I thought he did an excellent job of showing how the subtlety of the personal vendetta coming out over time. Really, I guess I do wish they hadn't totally changed the ending, the acquittal, the representing himself, who did it, all of those things. Basically, the last third of the show is a total departure. But actually, the whole thing was way more compelling than the Harrison Ford movie. Like, Harrison Ford,

the super good guy who makes this, you know, one mistake by having an affair, and then his whole life is turned upside down and ruined. And it's like, this is a more compelling show with more depth of characters and their good sides and their bad sides. And everyone is sort of muddling along in their flawed, broken world. I will say his assholery made the show compelling and unpleasant at the same time. That's the that's the paradox of this show is that it's, I agree with you on everything you said, Sarah.

It's far more realistic. It's just far more realistic. I mean, as far as the way that Vendetta's come into play, the way that people get indicted and how a prosecutor would get tunnel vision. Yeah. You know, you could totally see how Tommy Molto would get tunnel vision.

You know, as soon as you find out they've been having an affair, and oh, by the way, I'm jealous of this guy because I was in love with her anyway. And then he didn't even tell me that he was at the crime scene. And then you're like, I'm going to destroy him. So you can begin to see how that all unfolds. And I think the thing the thing that got me was if it had just been that, Sarah, from start to finish, it had been that Jake Gyllenhaal is not Harrison Ford. He is exactly the kind of human being who goes and has an obsessive long-term affair with somebody and can't give up on it, no matter the damage and wreckage he's inflicting

on everyone around him and everything. He's that narcissistic. And that was compelling. I thought that was compelling. If frustrating to watch the whole time. But then they go ahead and they throw in the twist and should we just say it? I mean, we've warmed spoiler, spoiler, spoiler alert. It's the daughter for no reason. For no reason. None. For no reason. All of a sudden, she now plays a big role in the family

in the last five minutes of the show. There had been no evidence that she'd been to the scene. There was no evidence that she knew about the affair at all before she went. There was no, nothing. She just, at the last, oh, by the way, I also showed up the night of the murder. Which almost, yeah, like, cause everyone else, I also showed up the night of the murder.

Which almost, yeah, like, cause everyone else, we knew the son had been there, had ridden his bike by, we knew the wife, knew about the affair. So they provided you clues for everyone else. And the fact that there were no clues for her was supposed to be the clue. But David, we need to get to the most important change from Harrison Ford to the Apple TV

show. Feminism! Because you're really watching, I think, the cultural change of how we view women over the course of 30 years. So in the Harrison Ford version, the woman in question is trying to sleep her way to the top. When she finds out that Harrison Ford doesn't want to be and run for district attorney, she dumps him and then starts sleeping with the district attorney so that she can be closer to

power and advance her own career because that's the only, you know, that's what feminism is. That's the only reason women are in these jobs is they're trying to like claw and take their way from men. And this is how women will work in the workforce as they start to enter the workforce. Really, when this movie is made. Fast forward 30 years, and women have a totally different role in this show. So the woman that Jake Gyllenhaal is having an affair with is just a junior attorney trying to get trial experience.

And if anything, it's never explicitly mentioned this way, but Jake Gyllenhaal takes advantage of a junior attorney who's trying to learn and she's a willing participant. She's into rough, kinky sex. And then he gets really obsessive and she doesn't want anything more from him. She's not trying to get him to leave his wife and the obsessiveness that he has,

she tries to find a nice way to say like, you know what, this is Renate's course. Thank you so much. I'm done with this and he can't let it go. And again, a far more realistic portrayal of what happens with women being in the workforce and having careers. The wife, of course, she has a job, but she puts her family first. She's devastated by the affair. He then goes back and continues to have an affair with her, gets her pregnant. The wife is still so concerned with the well-being of her children.

She's willing to keep the family together. He physically abuses her. She's still hanging around. She thinks about having an affair of her own, but she doesn't pull the trigger. There's something so realistic about that woman actually, who exists in a million households around the United States as well. So I love studying the portrayal of women and how it reflects our current views on feminism. I think Fatal Attraction is one of those movies that also shows a man being almost tricked into having an

affair with this woman who dresses like a man. she has masculine things about her. And that, right, this is what feminists are. They're man-eating gremlins in the 80s. So I just find that sort of cultural zeitgeist moment to be a really fun part of this, when they remake a movie from a different era. You look at the anti-hero aspect of it. In 1992, Harrison Ford had to be a different era. You know, you look at as the anti-hero aspect of it. In 1992, Harrison Ford had to be a good guy.

In 2024, Jake Gyllenhaal isn't Ted Lasso, therefore has to be an anti-hero of some kind. Although what's interesting here is I don't think he's an anti-hero. He's just a bad guy. It's just a show about- He's just terrible. He's a terrible person who is innocent of murder.

Yeah, we're more realistic about the criminal justice system now than we were 30 years ago, and then there's the feminist aspect. So I love the side-by-side. Yeah, no, I think that side-by-side is fascinating. I'm so glad you talked about that because it is a major, major difference. No question about it. No question about it.

But again, if the show had been nothing about those differences, I would have said, recommend, but brace yourself. Brace yourself. But then at the very end, you know, but this is the second consecutive sort of the prestige David E. Kelly shows that have sort of done this to us. I don't know if you remember the Hugh Grant and Nicole Kidman. Uh-huh. Wait, was that also David E. Kelly? I believe that was David E. Kelly. That's funny because Scott and I were comparing it throughout to that one without even knowing that it's the same guy

because there's a vibe to it that's very, very similar. Yeah, gripping, compelling, gripping, compelling. And then the denouement of the show is like this completely unearned what the what? You know, so you have this courtroom drama with who done it with what was it called? The undoing, I can't remember exactly. Yeah, the undoing.

And then it ends with a rescue, the most unrealistic chase and rescue on a bridge I've ever seen in my life, like what's going on here. So it's like land the plane, David E. Kelly. You've got me for 95% of it and then land the plane. I will say I'm surprised that Jake Gyllenhaal took this role of being a sort of women-abusing asshole given Taylor Swift's relentless PR campaign against him

to portray him as exactly that. Yeah. relentless PR campaign against him to portray him as exactly that. I always assume there's two sides to a story and that Jake Gyllenhaal has been maligned by Taylor Swift and the whole, you know, him keeping her red sweater thing is not true. But I don't know, Jake, after seeing you in this role, it now becomes very believable. Just kidding. This is all a joke. Except the part about, I believe that Taylor Swift probably has maligned Jake Gyllenhaal based on that. David, we have an exciting next episode this week. Very law heavy. We have so many cases to get

through. The law nerdery of the FCC tax on your phone bill that the Fifth Circuit has struck down is unconstitutional all the way to whether you can sue if your boneless chicken wing has a bone and so many other things in between, including Justice Kagan's Ninth Circuit interview, the Biden Title IX regs, Judge Ho's op-ed in the National Review. Oh man, we're going to have to just like zoom through those. So thank you listeners and we will talk to you again later this week.