Exploration On Holmes’s Dual Identity

Holmes is not only a great jurist, but also is one of the most famous judge, he was in theUnited States occupies an important position in the history of law. However, Holmes thought,especially his judicial ideas, people have not stopped arguing. He often posted on a variety oflabels: realism, pragmatism, skepticism, idealism, nihilism, liberalism, conservatism, and soon. This paper mainly through research Holmes related of famous case: one is he in Schenckcase, Abrams case and Gitlow case，put forward the principle of "clear and imminent danger"and this related of "thought market" theory, the principle of later became United States onspeech free case of judicial review standard; the other is in Lochner case, he put forward "most great of judicial objections ", by extended out of judicial restraint thought to later UnitedStates Supreme Court judicial judgment produced deep impact. He showed in the differentcases of seemingly contradictory ideas of Justice can unify in his possession, which is thetopic of this paper. Apart from the introduction and conclusion, this paper mainly consists ofthree parts.First part of this paper we focused on the famous Holmes in a freedom of expressioncase of judicial activism. Schenck v United States case, Abrams v United States case again tothe case of Gitlow v NY, he played judge’s activity, proposed and develop a "clear andimminent danger" principles of Justice United States later review standards for freedom ofexpression cases.The second part of the article, in Lochner v. New York State, Holmes are analyzed inmuch of their doctrine of judicial restraint, and judicial opinions. Holmes in the case againstthe Supreme Court to judge on behalf of Harlan’s personal judgment of the economicperspective into the Constitution, insisted the judicial precedents compliance legislation.The third part through to Holmes, the famous "the life of law is not experience but logic"the law of empiricism, as well as what Court of law is actually a forecast prediction of legaltheory analysis, found that although Holmes as judges judicial activism on the one hand, onthe other hand, showed judicial restraint, that does not make the ideological confusion ofHolmes. Because he judges the case Foundation is based on the legal theory of realism, isbased on the real needs of the community. Not Justice Holmes ’ opinion in different, butchanging social realities and needs of the different tendencies in his case are different.