Holmes, Oliver Wendell
The canons of Holmes's judicial faith were strict and demanding. He preached
judicial restraint and firmly believed that popular majorities through their elected representatives should not have their will thwarted capriciously; when his colleagues on the court nullified social legislation—e.g., minimum wage and hour laws—as unconstitutional, Holmes vigorously objected. From his eloquent opinions in these cases he came to be regarded as the Great Dissenter. In cases dealing with free speech, however, Holmes felt it necessary for the judge to loose the bonds of restraint and prevent legislatures from assuming censorious powers. In defense of the First Amendment, he developed the
clear and present danger rule, which allows for restrictions only when the public interest is faced with immediate threat. Set forth in the Abrams and Gitlow cases in dissenting opinions, the rule was generally accepted by the Supreme Court. Holmes's published works include The Common Law (1881), Speeches (1891, 1913), and Collected Legal Papers (1920).
See biographies by M. D. Howe (2 vol., 1957–63), S. Bent (1932, repr. 1969), and S. Budiansky (2019); S. J. Konefsky, The Legacy of Holmes and Brandeis (1956, repr. 1974); F. Frankfurter, Mr. Justice Holmes and the Supreme Court (2d ed. 1961); A. W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (2000); T. Healy, The Great Dissent (2013).
The Columbia Electronic Encyclopedia, 6th ed. Copyright © 2023, Columbia University Press. All rights reserved.
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