Wednesday, September 18, 2013

The "Holmesian Voice" on the Supreme Court

Carlo A Pedrioli has posted an interesting article on the social science research network, in which he says Supreme Court opinions that show fidelity to precedent are expressions of the "Holmesian voice" in constitutional law, taking Holmes as the model of a common-law judge. He contrasts the Holmesian voice with the more activist or result-oriented opinions of Justice Brennan for the Warren Court. He doesn't extend his analysis to consider whether Holmes's common-law jurisprudence stands in opposition to the doctrinaire "textualism" of Scallia et al., which seems equally result-driven.