Friday, November 06, 2009

Oliver!

At the Reason website, Damon Root attacks James MacGregor Burns' Packing The Court much as I did a few months ago. But one statement popped out:

It’s also worth noting that despite Burns’ moist praise for Holmes’ “probing, original” intellect, there’s no mention of Holmes’ most famous piece of judicial handiwork, his majority decision in Buck v. Bell (1927).

I suppose you could say that Holmes' kicker in that case, "three generations of imbeciles are enough,” is his most infamous line. But while Holmes is the most quotable Supreme Court justice, I wouldn't say Buck is his most famous opinion.

Perhaps that would be Schenck, where he came up with the "clear and present danger" standard and noted "The most stringent protection of free speech would not protect a man in falsely shouting 'Fire!' in a theater...."

The year after Schenck, he authored a more pro-First Amendment opinion in Abrams, noting "time has upset many fighting faiths" and that what we need is a "free trade in ideas."

Many would say his greatest zinger comes from his Lochner dissent: "The 14th Amendment does not enact Mr. Herbert Spencer's Social Statics."

While we're at it, his most famous line is probably not from a case, but found in The Common Law: "The life of the law has not been logic; it has been experience."

So I wouldn't say Buck is at top. Let's just say it's in the top five and leave it at that.

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