Vanderbilt Law Review

First Page



In an opinion that seems destined to live as long as the ideals of democracy survive, Justices Holmes and Brandeis rejected their colleagues' narrow conception of free speech, yet concurred in the judgment affirming conviction. Though the accused had claimed protection under the appropriate constitutional provision, she had failed at the trial level to raise the "clear and present danger" issue. Raising it in the Supreme Court was futile, thought Holmes and Brandeis, because "Our power of review in this case is limited not only to the question whether a right guaranteed by the Federal Constitution was denied [in the state court] ... but to the particular claims duly made below and denied." It may be said, of course, that Holmes and Brandeis had "no feel for the dominant issues"; that, preoccupied with "crochet patches of legalism on the fingers of the case," they let a technicality prevail over Justice. Others may suppose the two great judges, well aware of what was at stake, deemed themselves not free to do Justice, but bound to do justice under law, i.e., in accordance with that very special allocation of function and authority which is the essence of Federalism and the Separation of Powers. The point is, one's estimate of a judge hangs on one's conception--articulate or otherwise--of the judicial function.