Thomas Sowell on Judicial Restraint

The opposite of the results-oriented judge is the judge who will rule in favor of litigants that the judge may personally despise, if the law is on that side in that case. Justice Oliver Wendell Holmes, for example, voted in favor of Benjamin Gitlow in the 1925 case of Gitlow v. New York – and then said afterwards, in a letter to Harold Laski, that he had just voted for “the right of an ass to drool about proletarian dictatorship.” Likewise, Holmes dissented in  Abrams v. United States in favor of appellants whose views he characterized in his judicial opinion itself as “a creed that I believe to be the creed of ignorance and immaturity.” As he told Laski, “I loathed most of the things in favor of which I decided.” Conversely, he could rule against litigants he personally viewed favorably. In another letter to Laski, Holmes said that he hadd to “write a decision against a very thorough and really well expressed argument by two colored men – one bery black – that even in intonations was better than, I should say, the majority of white discourses that we hear.” Holmes was not taking sides or seeking “results,” but applying the law.

-From The Thomas Sowell Reader


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