Invention . . . meet Necessity

Justice Oliver Wendell Holmes explained (in the Northern Securities Case, a controversial antitrust case) that:

“Great cases like hard cases make bad law.  For great cases are called great, not be reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

Is this true?  It depends what you mean by “bad law.”  If you mean a decision that does not follow precedent or the usual norms of judicial behavior, then Holmes was probably right.  But creativity is not always a bad thing. Marbury v. Madison, for example, is taught as a “great case” because of the political pressure that the Court faced (Madison boycotted the argument, Jefferson wouldn’t have complied with an order to give Marbury the commission). And Marshall’s opinion was certainly unorthodox.  But was it bad law?  Hardly, if you like judicial review.

I bring this up because I’m now writing an article on “The Obama Generation and the Supreme Court,” which will talk a fair amount about the constitutional challenge to the health care bill.  In looking at past cases where the Court from one generation (e.g., the Old Court in the 1930s) collides with a new generation (the New Deal), you can see that the resulting friction often leads to bad law in the narrow sense that Holmes was talking about, but that tension also generates new ideas that become integral parts of the constitutional culture.

Great cases, therefore, probably make good law about as frequently as they make bad law.

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