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On Dating Mr. Justice Holmes, 9 University of Chicago Law Review 1 (1941)


I T HAS taken a decade to elevate Mr. Justice Holmes from deity to mortality. When he left the bench in 1932, he was an Olympian who in judgment could do no wrong. His opinions were norms by which to measure the departures of his Court from the true path of the law. A distinguished scholar, now in apostolic succession, reviewed his career upon the bench with but a single word of mild criticism. And the specialist, inclined to find technical fault or confusion, was careful to be soft-spoken. Questions about the breadth of Holmes' reach, the factual foundations of his views, the stuff of time and place out of which his opinions were fashioned were not raised. The neat phrase, the deft thrust, the quotable line were ultimates; and beauty of form was commuted into wisdom of utterance. For the Court, but especially in dissent, thus spake Holmes and the subject was closed.

After ten years it is no longer so. As months pass, the immediate recedes, the body of opinions takes on perspective. The leads he proferred are no longer new; utterances once fresh bear the taint of the antique; later jurists have taken trails on which his feet were never set. The course of events, with its vision from after the facts, has applied its discount to his prophetic vision. And as a liberalism-which he was far from professing- changes character and elaborates a new program, the Holmes of the law reports is remade. His Court divides on an issue he never raised; he is rescued from an aloofness in the skies, becomes a creature of his own circumstance, takes a human role in the blindly moving affairs of his own age. The myth becomes the man.

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