The broad brush statement is an easy one to make because it lacks specificity. Because it is easy, it is also a fairly feckless statement as well. I for one would be greatly interested in knowing in which cases she believes Justices Holmes and Cardozo voted in favor of sex and race discrimination. I would be greatly interested in knowing in which opinions did Justices Holmes and Cardozo write that women were inferior to men, or that white men were above all others in any sphere. Note that it is not hard to find a Holmes opinion that might offend the modern psyche--Buck v Bell, the much-discussed "eugenics" case, is remarkable chiefly for his closing comment "three generations of imbeciles are enough."Let us not forget that wise men like Oliver Wendell Holmes and Justice Cardozo voted on cases which upheld both sex and race discrimination in our society. Until 1972, no Supreme Court case ever upheld the claim of a woman in a gender discrimination case. I, like Professor Carter, believe that we should not be so myopic as to believe that others of different experiences or backgrounds are incapable of understanding the values and needs of people from a different group. Many are so capable. As Judge Cedarbaum pointed out to me, nine white men on the Supreme Court in the past have done so on many occasions and on many issues including Brown.
But Buck is also worthy for its illumination of Holmes' flavor of judicial reasoning--his concern is not some presumed universal moral "rightness", but merely the viability and observance of the law. Holmes specifically deferred to the prerogatives of the legislature in Buck: "In view of the general declarations of the Legislature and the specific findings of the Court obviously we cannot say as matter of law that the grounds do not exist, and if they exist they justify the result." He detailed at some lengths the procedural protections afforded the plaintiff in error to eliminate any contention that the plaintiff was denied due process. From an historical perspective, the question may be fairly asked: does Holmes' reasoning in Buck represent an endorsement of "negative eugenics" or of the primacy of legislatures in ordering society?
Nowhere in Sotomayor's lecture is there even so much as an allusion to such a question. The summation of Holmes' judicial reasoning is contained in the single simple assertion that he voted on cases that affirmed sex discrimination. Such an assertion, unsupported by textual evidences, is mere glibness at best, but is in every instance sloppy and shallow logic, an offense made worse by failing to account for the anecdotal aphorism attributed to Holmes:
We must be mindful that the standard of judicial review is not the achievement of some preordained notion or theory of "justice". The Supreme Court is not nor should ever be concerned with ethereal notions of moral right and moral wrong. The standard of judicial review for the Supreme Court of the United States is what was explicitly stated in Marbury v Madison two centuries ago: "It is emphatically the province and duty of the judicial department to say what the law is." Judicial review is no more and no less than this.There is a story that two of the greatest figures in our law, Justice Holmes and Judge Learned Hand, had lunch together and afterward, as Holmes began to drive off in his carriage, Hand, in a sudden onset of enthusiasm, ran after him, crying, "Do justice, sir, do justice." Holmes stopped the carriage and reproved Hand: "That is not my job. It is my job to apply the law."
Thus, while it may be arguably true that, on certain cases viewed from certain perspectives, Justice Oliver Wendell Holmes did render opinions that tolerated and even advanced a discriminatory legal framework, it may also be argued that, by so doing, he placed the burden of social justice and the equality of law exactly where it belongs--on the Congress and the legislatures of the states. So long as a law conforms to the framework laid out by the Constitution and its several amendments, the duty of the Supreme Court is to uphold that law, even if it achieves the basest and most repugnant of ends. If a law is unjust, it falls to the legislative branch of government to repair the injustice; no court contains the competence to effect such repair within its rulings.
Judge Sotomayor would argue--and did argue--to the contrary, and in arguing to the contrary offers up no more substance than the arrogant and rather self-serving assessment that she, being a "wise Latina woman" having lived a "rich life", is better positioned than others to grasp the nature of injustice, and to see what the fitting remedy should be. It is a petty, shallow, and withal silly framing of the judicial function: justice is what Judge Sotomayor deems it to be, and the proof that it is justice is that she declares it thus.