Hand to Holmes: “Do Justice!”

There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, “Do justice, sir, do justice.” Holmes stopped the carriage and reproved Hand: “That is not my job. It is my job to apply the law.”
Judge Robert Bork

Holmes is particularly associated with what Anthony D’Amato and Arthur Jacobson call the “’Separation Thesis’—the thesis that law is entirely separate and distinct from any value-system such as justice or morality.” Famously, Holmes proclaimed: “I hate justice.” In a letter from Holmes to John Wu, the former wrote: “I have said to my brethren many times that I hate justice, which means that I know if a man begins to talk about that, for one reason or another he is shirking thinking in legal terms.”

Similarly, Hand characterizes his “job” in a letter to Harold J. Laski:

I have been in a minority of one as to the proper administration of the Sherman Act. I hope and believe that I am not influenced by my opinion that it is a foolish law. I have little doubt that the country likes it and I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.

Justice was not the only thing Holmes hated. “I hate facts,” Holmes frequently remarked; “the chief end of man is to form general propositions.” He was always careful to add that no general proposition is worth a damn.

Oliver Wendell Holmes

Oliver Wendell Holmes

Holmes hated objective, factual concrete propositions. Holmes hated subjective, theoretical abstract propositions. He felt that the judge should be an impartial arbiter, yet with no objective or subjective criteria to direct his judgments, there was nothing to bind the judge from exercising absolute impartiality.

Indeed, in Lochner Holmes stated: “General propositions do not decide concrete cases.” These dismissed “general” propositions include “justice” and “facts.” Holmes continues: “The decision will depend on a judgment or intuition more subtle than any articulate major premise.”

An intuition. This is the linchpin of Holmes’s jurisprudence. When facts and justice are removed from the equation, what remains is a judge with some sense too “subtle” to articulate. Holmes, ostensibly the model for the conservative judge, abandons any objective or subjective measures in favor of the judge’s own intuition as to which party prevails.

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