Warden on Disenchanting Justice Holmes @LSULawCenter @TulaneLaw @UIllLRev

Derek Warden, Law Clerk, Louisiana Supreme Court, is publishing Disenchanting Justice Holmes, in volume 2021 of the University of Illinois Law Review. Here is the abstract.

Over the last several years, the United States has seen the “cancellation” of numerous public figures. While the concept of “cancel culture” is of great concern to society, bringing recognition to the failures of public figures and powerful people is important. Truth should always be spoken to power. However, it is disheartening when those who have committed and encouraged some of the most heinous actions are continuously venerated by powerful institutions. The purpose of this letter is to encourage the discontinuation of such veneration for one jurist, Justice Holmes. I do not mean to “cancel” Justice Holmes in the modern sense, but to disenchant him. By this I mean to pull back the curtain, expose the wizard for the man he is; and, based on one opinion, show that such continued infatuation with Justice Holmes is improper. Of course, Justice Holmes is not the only Justice who has failed society. We have seen the Supreme Court fail on numerous occasions. Many of the Court’s worst decisions are deemed to have been wrong the day they were decided. This so-called “anticanon” represents America at its worst. We know these cases by the names of the litigants: Dred Scott, Plessy, Korematsu, and Lochner. Conspicuously absent from that typical pantheon of error is perhaps the worst of all, second only to Dred Scott—Buck v. Bell. Buck is the case which prompts this essay.

Download the essay from SSRN at the link.