We like to look back at our history and view it as a series of steps taken based on belief, knowledge and research. Yet more and more we find that particular pivot points in our past, some integral to our national identity, were based more on personal feeling and human connection than anything else. When The Beatles sang, “All You Need Is Love,” they likely didn’t know how true that was.
The Great Dissent by Thomas Healy tracks Supreme Court Justice Oliver Wendell Holmes through the years and months leading up to what became his most monumental contribution to legal history, his 1919 dissent in the decision in Abrams v. United States, a decision that upheld an amendment to the Espionage Act of 1917 and thus restricted free speech.
While precedent usually comes from the majority opinion, with the power, flourish and emotion Holmes invested in this dissent he pushed the pendulum towards the First Amendment understanding and freedoms we take such advantage of today. His dissent helped cement the “clear and present danger” test for free speech, which became fully imbued in the law later on when used in the majority opinion in a later case. Without Holmes, I may very well not even have been able to write this review, nor you to read it.
Holmes was something of a hero to the left-leaning Socialist crowd in his day, but he never quite understood why. Some of their ideals aligned, but he not quite in the same manner. Concerning individual rights, he was less of a believer, preferring a hands-off approach from the government. If people were going to do something stupid and possibly detrimental to their own health, he wasn’t incredibly concerned:
“If my fellow citizens want to go to hell I will help them,” was another favorite saying. “It’s my job.”
He saw his job on the bench as enforcing the law as written, not interpreting whether the laws were valid or constitutional. Overturning congressional opinions was not something he believed to be a core element of wearing the hallowed robe. Yet he had a young friend, a teacher and intellectual named Harold Laski, whom Holmes looked on as a son. They would spend many hours talking and impressing each other with their intelligence and understanding of a variety of legal topics. Even in written correspondence their affection for one another was incredibly clear. And Laski saw the increased criminality of speech in the Espionage Act and the Sedition Act, and feared for the country and the future of Democracy.
He fed a steady series of books to Holmes over time, wearing him down and softly tugging him over to his point of view. By the time Holmes was assigned the dissent in the Abrams case, the Justice had fully shifted to the other side, even to the point of admitting that his own recent decisions had been incorrect.
The Great Dissent is not just about how we got freedom of speech as we know it today, but also about the friendship of these two men and how it influenced history. Holmes witnessed numerous friends and associates getting in trouble because of the government crackdown on free speech, but it truly hit home when Laski himself was attacked both in his personal and his professional life for his beliefs, nearly run out of his teaching position at Harvard. Holmes saw what happened when the individual’s right to free speech is not only infringed upon, but openly attacked and subjugated. Holmes was able to lend support to Laski, though in the end Laski found he would never get promoted at Harvard and the dream of a professorship with tenure there had become impossible.
After Holmes issued his dissent in the Abrams case, he still had no idea how it would resonate through the annals of time and Democracy. He had a lifelong dream of leaving an indelible mark on the legal world, but it didn’t come about in the way he intended. From that moment forward, judges for years to come would look back on his dissent and use it as justification for their own decisions, until it was finally included in a majority opinion on the Supreme Court, thereby stamping it into legal precedent forever.
Healy covers this integral moment of legal and historical importance with drama and presence, so it never feels dry or overly weighed down by SAT vocabulary. It’s incredibly open and inviting to the casual reader who has the least bit of curiosity about where this permission at the very core of our country came from.
The Great Dissent brings the origin of the First Amendment to life and makes its champion, Justice Holmes, a layered, multi-faceted figure at the crux of our personal freedoms.