In passing in The Great Dissent by Thomas Healy, he mentions that Justice Holmes wrote a dissent in Buchanan v. Warley, but withdrew it. Huh, I thought? Did anyone else know this?
In a book review in the Yale Law Journal, David Bernstein and Ilya Somin explain this point:
Yet Holmes drafted a dissenting opinion, arguing that the white plaintiff (who was barred from selling his property to a black man) could not assert the rights of blacks disadvantaged by the statute and that the law did not infringe on the plaintiff’s property rights in a way that violated the Fourteenth Amendment. See 9 Bickel & Schmidt, supra note 100, at 592 illus. (providing a copy of Holmes’s undelivered dissent in Buchanan). Only eleven days before Buchanan was released, Holmes was still considering whether to issue his dissent. Id. at 805 n.255. He ultimately did not, probably not because he changed his mind on the merits but because he could not get a second vote. Id.
Holme’s famous dissent in Lochner would also give him ground to dissent in Buchanan, a case that would have upheld massive racial segregation. If anyone has a copy of the draft opinion, please share.
On the whole, with the book, I felt left down. I was expecting some massive revelation about how Holmes’s jurisprudence evolved. I only got glimpses of that, and found the author was really stretching to piece things together. The few letters he exchanged with Learned Hand were really, really overblown. And what about Brandeis? There was very little there. The most persistent theme was that others tried to get into Holme’s good graces to influence him, or profit. It was really sad. I wonder how many of his “friends” actually cared about him, and how many wanted to gain from his celebrity.
As David notes in his review:
He ultimately received (non-physical) affection, and adulation as well, not from his lover but from his young Progressive acolytes like Harold Laski, Felix Frankfurter, and others. But that adulation depended on Holmes’s staying in their ideological good graces, and once his “circle” had decided that freedom of speech needed judicial protection, it’s not surprising that Holmes indulged them by protecting it. Which is not to say that Holmes didn’t really change his mind, but if he had been a happy man not inclined to pay attention to young sycophants, he may never have had the occasion to rethink his position (unless, of course, Brandeis’s influence has been understated).
Reading this book has given me an even lower image of Holmes than I had before. Towards the end, I saw the shadow of a great jurist, who still had the same rhetorical flair of his youth.His constant desire to impress others, and not any deep or profound belief in individual freedom, undergirded the opinions that most remember him for (such as in the First Amendment context). All other opinions, that whitewash over freedom, such as Buck v. Bell, are generally disregarded, even though the basis of those opinions would fully support the basis of the withdrawn dissent in Buchanan.
On a stylistic note, I think the book tried to do too much. There was way too much time spent on chronicling the socialist and anarchist movements of the early 20th century. For long stretches I was bored. The various characters and scenes felt disjointed, connected only by the fact that the they were before the Court. And the buildup to the “Great dissent” was so anticlimactic, as the author kept hinting along the way exactly what was going to happen. I write this as an author who wrote a 300-page book about a case decided two years ago, that everyone knows how it will end. I worked really hard to keep it suspenseful, and threw in some twists and turns.