Brandeis’s Seat, Kagan’s Responsibility

[groovedaddy]

IN her Supreme Court confirmation hearings last week, Elena Kagan cited Justice Oliver Wendell Holmes, Jr. as her model of judicial restraint in response to questions from Republican senators who want the court to overturn health care, campaign finance and economic regulations.

Ms. Kagan picked the wrong justice. Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold. Ms. Kagan would do better to look to the justice whose seat she has been nominated to fill: Louis D. Brandeis. Brandeis, who was succeeded by William O. Douglas and then John Paul Stevens, was not only a great and restrained judge but the most prescient critic of the “curse of bigness” in a time of economic crisis.

Both Holmes and Brandeis were heroes of the Progressive Era, when the constitutional debate eerily anticipated the one that unfolded in the Kagan hearings. Liberals denounced the pro-corporate bias of the conservative Supreme Court, and conservatives countered that only the court could protect economic liberty and personal freedom in the face of an out-of-control regulatory state.

Although Holmes and Brandeis both objected to conservative activist decisions striking down progressive regulations, Holmes, unlike Brandeis, had no personal sympathy for the Progressive movement. An aristocratic nihilist who once told his sister that he loathed “the thick-fingered clowns we call the people,” Holmes believed that judges should vote to uphold virtually all laws, even the ones they hate.

http://www.nytimes.com/2010/07/04/opinion/04rosen.html?th&emc=th