On the Dangers of Good Writing

Published:October 12, 2009 by Brendan Wolfe

Oliver Wendell Holmes Jr.

Supreme Court Justices are dashing off cheap novels in the guise of opinions. Chief Justice John Roberts, for instance, channels Sam Spade in a recent dissent:

North Philly, May 4, 2001. Officer Sean Devlin, Narcotics Strike Force, was working the morning shift. Undercover surveillance. The neighborhood? Tough as a three-dollar steak.

To which Terry Teachout replies that sometimes writing in Supreme Court decisions can be too literary. Take Oliver Wendell Holmes Jr.:

I’ve found that experts are less inclined to admire Justice Holmes than laymen, not because he wrote too prettily but because the beauty of his style sometimes lent undeserved force to deeply problematic views.

So true. Buck v. Bell anyone? In justifying Virginia’s institutionalization and castration of a developmentally disabled woman whose daughter was alleged to be the same, Justice Holmes famously wrote, “Three generations of imbeciles are enough.” Teachout calls Holmes’s decision “an aesthetically exquisite piece of rhetoric,” but hardly one we should admire.

I squirm at the thought that the pith and vigor of his style may have increased the willingness of his fellow justices to order the eugenic sterilization of a teenage girl on wholly specious grounds.

Clement Greenberg said it: “There are, of course, more important things than art: life itself, what actually happens to you . . . Art solves nothing, either for the artist himself or for those who receive his art.” Perhaps the world would be a better place if more judges wrote well—but somehow I doubt it.

Well put. (But not too well put!)

IN ADDITION: Holmes came by his rhetoric honestly. His father, after all, was a poet who wrote beautifully about viewing photographs of dead soldiers of Antietam in 1862. His son, the future Justice Holmes, had been injured at the battle. Read about it in our entry on photography during the Civil War.

IMAGE: Oliver Wendell Holmes Jr. (Virginia Historical Society)