Holmes and Alito

Paul has offered detailed comments on the NYT story about the Hobby Lobby leak and the broader anti-choice campaign to, as Paul puts it, "meet, cultivate, and influence the justices through friendship and other contacts." Some regard the latter as the greater scandal.

Some of the hand-wringing about the "influence peddling" sent me to Justice Holmes, the House of Truth, and Holmes' many about free speech with Learned Hand, Harold Laski, Walter Lippmann, Zachariah Chafee, Felix Frankfurter, and others in 1919, during the eight months between Holmes' majority opinion in Schenck and his dissent in Abrams. Put differently, progressive activists and other non-parties and non-colleagues engaged with Holmes in-person and by mail in social, non-judicial settings, attempting to influence and change (ultimately successfully) his First Amendment views; those changes reflected in subsequent opinions, which the Justice's supporters praised and celebrated. This effort spread beyond free speech to bigger progressive causes such as labor organizing and workers' rights (with which Holmes was on board).

What, if anything, provides a meaninful difference between Holmes' engagement with Hand, et al. and Alito's engagement with Schenck, et al.? (Note I am focused not on the Hobby Lobby leak but on the broader campaign to kibitz with the Justices).

The money presents the obvious variance. Some people donated substantial sums (including to the Supreme Court Historical Society) for the access Alito (as well as Thomas and Scalia), which was not the case with Holmes and his clique. But I do not know how important money is to this story. Donors did not give money to the Justices. The money placed them in the room with Alito, just as participating in 1910s progressive politico-legal circles put people in the room with Holmes.

Many of Holmes' conversations (especially his exchanges with Hand) were general and philosophical, less overtly ideological, partisan, or political; Holmes was talking to academics (Laski, Chafee, Frankfurter), judges (Hand), and journalists (Lippmann). The people engaging with Alito are activists, part of a large, coordinated political and social movement revolving around these issues. Again, however, many of those in the House of Truth were activists committed to political causes who joped to sway Holmes to their positions (some of which Holmes shared, others of which he had to be convinced).

The difference may be "times change." Paul discussed the different ethical norms of the early-and-mid-2oth-century Court and the Justices' deeper immersion in politics. But a colleague with knowledge of this period on the Court offers another difference--political, social, and impact-litigation movements of the '10s and '20s wielded less influence on the Court as an institution and thus were smaller and less well-organized. Brown demonstrated how these movements can succeed on the Court on a massive scale. Subsequent movements--including Schenck and the anti-choice movement--are larger, better organized, better funded, and more committed to wielding power to political ends. Laski and company played minor-league ball, a difference in kind from modern social-movement machines.