An American Original … Revisited

THE OPEN MIND
Host: Richard D. Heffner
Guest: Max Lerner
Title: An American Original…Revisited”
VTR: 9-11-88

I’m Richard Heffner, your host on THE OPEN MIND. In 1943, when Max Lerner, my guest today, edited and commented so brilliantly upon the speeches, letters and judicial opinions that composed what he called “The Mind and Faith of Justice Holmes”, this popular scholar, journalist and commentator wrote: “If it be asked why I present such a volume now, in the midst of the most terrible war in history and while America is caught in the greatest peril of its career, I can only answer that today more than ever we need the first-rate minds of our past. Holmes is not simply another amenity of civilian consumption to be eliminated on the basis of military priorities. Democracy is what we are fighting for – and Holmes was in a deep sense a democrat. Freedom is what we are fighting for – and Holmes formulated more precisely than anyone else that freedom lay in the competition of ideas. A stoic fortitude is what we shall require to face an incalculable future – and that fortitude is in Holmes, with his acceptance of life’s limitations, his lack of any personal illusion of centrality in an unfathomable cosmos, and yet also with this quiet determination to continue within his own area in the cosmos as craftsman and creator”.

“Today more than ever” – Max Lerner wrote nearly a half century ago – “we stand in need of Holmes the good soldier, Holmes the partisan of civil liberties, Holmes who was skeptical of the omniscience of any elite, yet Holmes who for all his skepticism rested finally on a fighting faith”.

And today – now – more even than in the midst of World War II, we can appreciate Max Lerner’s decision to revisit Holmes and to republish his seminal volume with a stunning new Transaction Press afterword essay that illumines all the more Holmes’ mind and faith (Mr. Lerner calls it “a unique faith”)…and, of course, his relevance for our own times. So that I must begin by asking my guest, my dear old friend, just what that faith was, and what its relevance is today, Max…

Lerner: It was not a religious faith. If he ever was going to have a religious faith it got knocked out of him in the Civil War. Edmund Wilson did an essay in “Patriotic Gore” in which he describes what happened to that religious faith. He was wounded three times, twice left for dead on the field. It was not a religious faith but it was a faith in what? In the whole revolutionary process, in the cosmos…that he was in the cosmos, not the cosmos in him, that he was part of the evolutionary process. A faith in the nation, a deep and passionate love for the nation, a soldier’s faith which continued even after the Civil War up until his death. A faith in America as an organism and its viability, a faith in the competition of ideas, in free trade and ideas, and an almost idealistic faith that in the struggle between truth and falsehood, truth would win out if it were given a fair chance, that I call a fighting faith and the interesting thing was that when my book first appeared in a rather skeptical period, the thing about it that was most radical, in a sense, that hit hardest in its reception, was my title, “The Mind and Faith of Justice Holmes”. People had known he had a great mind. They had not thought he had a faith.

Heffner: Have you changed your mind? Is your faith in what he believed in different now that it was nearly a half century ago?

Lerner: Well, basically, my assessment of him, my belief in him, my – in a sense – my use of him almost as a model for a complete life, a complete man, has not changed. What I have found in going over the history of the past 45 years, in terms of the Law school cultures which have been criticizing and assessing Holmes, was that his reputation had quite a rocky career. He flourished up until the mid 40s. From the mid 40s to the 60s his reputation declined. It reached a nadir in the late 60s and early 70s. It began to go up again in the mid 70s. It’s at a pretty high point again now. But in…and I have made an effort in this long afterword essay of mine to try to reassess him as best I can, especially in the light of the challenges that were thrown at him during that period when he became the butt of criticism, but I end up feeling as much as I ever did that his greatness was real.

Heffner: You know Max, we’ve spoken on this program a number of times about your won intellectual odyssey since those days and before, and your own changing attitudes. And I wondered whether the Darwinism that characterizes Holmes is more acceptable to you today than it was then.

Lerner: No, about the same I would say. I have never been a total Darwinist, certainly not a social Darwinist. That is, I don’t believe that the fact that you’ve survived means that you were necessarily fitter. You may be fitter for survival but you are not fitter necessarily as a human being. I’ve never been a social Darwinist in that sense. I had an empathy with Holmes then, and still have with him in terms of the necessity for viability in a cosmos, that very often seems an unfeeling cosmos and I have an empathy for his idea that struggle is what counts but the struggle is not necessarily with others, it is also within oneself.

Heffner: But when you talk about viability you do mean survival.

Lerner: I mean survival in a healthy way. Here I am trying to be viable as a person. I’ve had a long life. It isn’t enough for me to survive. I go back to what Faulkner said in that Nobel Prize speech of his “Man will not just survive, he will prevail”. And when I speak of viability I mean surviving in a functional way, prevailing.

Heffner: Yes, but I’m puzzled about that because this is what I pick up as I reread Holmes. This emphasis…you talk about free trade in ideas. Does that mean that any idea that has survived in the trade of ideas, in what others have called the marketplace, by its survival is worthy of our acceptance?

Lerner: Well, you see, part of the problem with the Darwinians, the social Darwinians was that it would follow from their thinking that if an idea survived it therefore was the truth. It doesn’t follow for me. I’ve been through too much, especially at a time when we were not at all sure whether the future belonged tot eh Nazis or to us. I’ve seen too much of what happened with the Communists and the memory hole when they stuck truth down the memory hole. To believe that simply because an idea survives therefore it is true…Now, Holmes had the opposite actually. I said he was almost an idealist in this. He and Milton, John Milton, believed, what was it Milton said, “If you put truth and falsehood together in a free and open combat who ever knew truth to be beaten, to be defeated?” Now that’s the idealist, that’s John Stuart Mill, that’s Holmes, too. In the competition of ideas he felt that truth will prevail and there I don’t go with him entirely, very often truth falls to earth.

Heffner: Because there is no equal competition?

Lerner: Sometimes because there is no equal competition, sometimes it’s because dark and ugly forces of mans’ deep aggressive, destructive nature bring truth to the ground.

Heffner: Holmes was aware of that darkness, wasn’t he?

Lerner: He was aware of it. You see he was not entirely consistent in his thinking. He was not a Darwinian in Abrams against the United States which is one of his great free speech cases. There, you know, he says when time is tempered, our fighting faiths we will realize that the best test of truth is the capacity of the idea to get itself accepted in the competition of the market. Now, notice what he says – “The best test of truth”…that’s all. It’s a test. That does not mean that inevitably the truth will prevail.

Heffner: Yes, but that notion…hasn’t it been taken to mean just what you say Holmes doesn’t mean?

Lerner: Yes, that’s right. It tends to get that way. But if we do some rigorous thinking we will prevent ourselves from ending up there.

Heffner: Where is the Holmes tradition today in the Supreme Court?

Lerner: One of the things I try to do in the essay in tracing the history of the Holmes reputation is to indicate to what extent at various periods the members of the Supreme Court did or did not follow him. The court that Roosevelt appointed mostly followed him but there were a number of people in the court who after a while diverged from him. Douglas was one. Hugo Black was one.

Heffner: In what ways did they move away from Holmes?

Lerner: You see, Holmes believed in what we called at the time the Doctrine of Judicial Deference, that is that when a state legislature or Congress passed a law if it was not unreasonable, then the Supreme Court should defer to it, even though they might disagree very strongly with it. His very great dissenting opinion in Lockner against New York was the beginning of a revolution in thinking in which we came to understand that judges have their own intellectual universe inside of their minds, and many judges have a notion of what ought to be in the society. What the best economics is, the best politics, the best sociology and Holmes said in that opinion what the Supreme Court…the Constitution does not enact Herbert Spencer’s Social Statics and change. Legislatures change. And so, he said we must, even if we don’t like what the legislatures have done, we must defer to them. And that doctrine of judicial deference became, eventually, a doctrine of judicial self-restraint. Now what happened was that Holmes was using it against the judicial activists of the conservative court before Roosevelt. And part of his greatness lay in his strategic understanding that this was the kind of doctrine that could meet the power of that conservative majority. However, the Roosevelt judges, when they came in, a number of them then became liberal judicial activists, and this was even truer in the Warren Court and from that standpoint, of course, Holmes had reached the nadir of his reputation in the Warren Court because they wanted to be activists, liberal activists with the kind of social engineering, translating their own basic social ideas into the Constitution and Holmes never really believed in that.

Heffner: How sympathetic were you and are you to that judicial activism on the liberal side?

Lerner: It’s interesting. I have maintained a, I have to say, a fair consistency in that way. I was against the conservative judicial activism in the 1920s and 1930s. That’s when I was writing my law review articles, and in the 40s when I wrote the Holmes book. I was against the conservative judicial activism. I am still against judicial activism when it has become liberal activism.

Heffner: What happens, though, in your longish afterword essay? You write, “The faithful on the Burger and Rehnquist courts in the 1980s picked only a single strand of Holmes for their fealty, judicial restraint, but they turned it into a historicism of original intent which attenuated what he meant and missed the richness of his range. Now how do we explain that in terms of what you just said?

Lerner: Well, what happened…it’s hard, actually, to maintain a true Holmesian view over a period of what, 45 years in the history of the court. The great Holmesians on the court, the Roosevelt Court were Felix Frankfurter and Bob Jackson. I dedicated that book originally to Felix Frankfurter. But their view did not prevail in the 50s and in the 60s and in the 70s. Now, what happened in the 70s and in the 80s; in the 70s with the Burger Court and in the 80s with the Rehnquist Court was that they went back to the Holmes doctrine of judicial deference, judicial restraint with respect to legislation, but they felt that they had to fight the liberal activism and what they chose to fight it with was historicism and there they went back to Hugo Black, who is the first of the justices. The great justices really do historical explorations in order to get back to what the original intent of the 14th Amendment, say, was, or one of the congressional acts after the Civil War.

Heffner: That’s a slippery slope, isn’t it?

Lerner: I think it’s a slippery slope and it’s not one that I go along with and from that standpoint I don’t have too much empathy with some of the conservatives on the court today. I must say, however, that Burger and Rehnquist have come through by following the Holmesian doctrine of judicial deference, judicial self-restraint. They’ve established a pretty good place for themselves in the history of the Supreme Court.

Heffner: You know I took that quote, and I took the one on the preceding page because you write “Judicial review is the greatest American achievement in the arts of the polity”.

Lerner: Yes.

Heffner: And I have to ask you to explain yourself.

Lerner: Well, when you examine what the basics of our polity, our political system are, you’ll find, for example, majority of rule, presidential government, congressional government with its checks and balances upon the presidency and so on, a whole set of things. Of those, none of them are original except for the doctrine of judicial review which is an original American institution and which no other country…they’ve tried but they’ve not been able quite to follow it. And our way of interpreting a written constitution in such a way that we give it a hold upon people’s minds through the symbolics, both to the Constitution itself and the symbolics are for a court appointed for life, and therefore, independent of political interference. That way of ours, that way of ours of establishing a set of precedence, but also establishing a set of guidelines by which change can be brought to those precedence. That is an achievement and from my standpoint, the greatest achievement of the various elements that form our polity.

Heffner: It puzzled me so, because here on the one hand, and I look at it as on the one hand…and on the other your paean of praise for judicial review…and on your other your expression of continuing support, your fealty, not just Rehnquist’s and Burger’s, for judicial restraint. Is there no contradiction?

Lerner: But you see…No, judicial review is part of the tradition. I mean judicial restraint is one of the elements of the tradition of judicial review. Judicial activism is another, but both of them are elements of the whole long tradition of judicial review. And of those two I choose judicial restraint as Holmes did, but the view thing, the institution of judicial review, the ways in which we have come to feel these judges really have…that when they say something it holds. I would be a daring president indeed to challenge, for example, Brown against the Board of Education. President Eisenhower didn’t really believe in it but it would have been very difficult for him to challenge it and this is true of every president with every Supreme Court decision.

Heffner: Max, we’re almost a half-century away from the original “Mind and Faith of Justice Holmes”. Would you now find that, in terms of developing on these shores, the good society, the good life, that you would find deeper and more profound respect for, or less respect for judicial activism as opposed to judicial restraint? Which has brought us closer to the good life?

Lerner: To the good life? Let me see if I can put it this way, instead of choosing one or the other: I would say that as a continuing rule, I would say judicial restraint is better, simply because by the way it is a more critical ingredient of the ideal democracy of majoritarian rule. After all, the Supreme Court judges are not elected, they are appointed. Legislatures are elected by majorities, Congresses are elected by majorities, a president is elected by majorities. This is majoritarian rule, which is a very critical element of democracy. And so judicial restraint allows majorities to prevail unless what they do is so unreasonable and so much against the Constitution that it must in some way be inhibited. Now, as a continuing principle I go for judicial restraint, but there are times when this sort of…allowing legislatures to have their way simply will not work with any justice to the people and the health of the community. One was the Dred Scott case and what happened there was that the Supreme Court majority under Chief Justice Taney declared that Dred Scott was not a human being, he was a piece of property because a rigid reading of the Constitution made them feel that way and the result was the civil War to a considerable extent. Now, then came the 1950s and we began to get a sense that something was happening to a large segment of our population – the Blacks – and that they were not being given a chance of equal access to equal life chances, particularly in the schools, and there judicial restraint would have determined that the legislatures of the states should prevail, that there should not be any interference with them but true statesmanship would no. And it’s interesting that the great Holmesian on the court, Justice Frankfurter, got together with the new Chief Justice Warren and together they conspired in a way to get a rehearing of the cases that had formerly been disposed of, get a rehearing and get a new vote on the court and eventually they got a unanimous vote in Brown against the Board of Education. Now, that is not judicial restraint but it is judicial statesmanship which knows when there has to be flexibility.

Heffner: Max, in the years since Holmes, who as far as you are concerned, not carried out Holmesian doctrine but rather has been in his place as a great, great jurist?

Lerner: As a justice or a legal scholar?

Heffner: As a justice.

Lerner: As a justice, I think since Frankfurter and Jackson and Black I have not seen them. Black, by the way, has not carried out the Holmesian doctrine but after Holmes, Black was perhaps the greatest justice we have had. He had a combination of a certain amount of Holmesian influence along with his historicism, along with a capacity for judicial activism which he kept within bounds.

Heffner: Do I understand you to say, though, that since Black…

Lerner: Since Black there’s been no giant figure on the court. There have been some great figures in the Law schools in the interpretation of the Constitution. To me the greatest was Alexander Bickle at Yale who died recently and whose critiques of the Warren Court are among the masterpieces in legal literature. But since Black we have not had a major figure on the court. There were giants in those days, they don’t exist now.

Heffner: You’re saying “There were giants in those days”. Are you saying that there were giants in other fields and in no field, or in few fields?

Lerner: Oh, there were giants. There have been giants recently. I’m saying that in the history of the Supreme Court…what really has happened was that the reaction against judicial deference, judicial restraint, toward liberal activism has been so strong that it has carried justices along who, if they had made an independent stand might have become a Holmes, but they didn’t. For example, Warren, himself, was not a great judicial figure but, someone like Fortas was a very considerable figure, of course, he had a pretty bad…and Justice Brennan today. He has a kind of judicial mind which has the elements of greatness in it but he goes along with the liberal activism so that there is no originality, no sense of stature.

Heffner: Scalia?

Lerner: Scalia has the possibilities of it. Scalia is very much a non-conformist. We don’t know where he will go next but in intellectual terms, he has the capacity.

Heffner: And the role of the court…

Lerner: By the way, Bork, if he had been given the chance, might have shown greatness.

Heffner: I should have asked you about that because I remember the columns you wrote at the time…

Lerner: And I did a New Republic article saying that while Bork was not a Holmesian, in any sense, he had the stuff of greatness in him if he were given a chance. Yes.

Heffner: And the role of the court today? Does it provide an opportunity for the stature of a man with the mind and faith of Justice Holmes, in the dynamics of American life?

Lerner: I think it does. I think that we are now in the period where we have become so disillusioned with intensities of Warren Court judicial activism, liberal activism that we may get some justices in our lifetime…yours certainly, I’m not sure about mine…who will again assert an independence of judgments such as Holmes did, a strategic sense and as he had. Now, as to whether they will have the literary style…what was it Walter Lippman said, that Holmes has the purist style writing in America today, at that time, he was still alive…The purist style, I think, of all the justices, one of the great writers in the American literary firmament. Whether that’s possible for justice, I would doubt but, in legal an intellectual terms I think it’s still possible.

Heffner: You’re always, if not an optimist, a possiblist and I appreciate that, Max Lerner. Thank you so much for joining me today.

Lerner: Good to be with you.

Heffner: And thanks, too, to you in the audience. I hope you’ll join us again next week, and if you care to share your thoughts about today’s program, today’s guest, please write to THE OPEN MIND, P.O. Box 7977, FDR Station, New York, NY 10150. For transcripts send $2.00 in check or money order. Meanwhile, as another old friend used to say, “Good night and good luck”.

Continuing production of this series has generously been made possible by grants from: The Rosalind P. Walter Foundation; The M. Weiner Foundation of New Jersey; The Mediators and Richard and Gloria Manney; The Richard Lounsbery Foundation; Mr. Lawrence A. Wien; and The New York Times Company Foundation.