America’s Great Modern Justice

America’s Great Modern Justice

A new biography of Oliver Wendell Holmes Jr. illuminates the Supreme Court during the centennial of his most momentous dissent.

by LINCOLN CAPLAN Harvard Magazine

IN THE SPRING of 1864, Oliver Wendell Holmes Jr. was fighting in the Civil War as a Union Army captain. He had enlisted three years earlier, soon after the war began, when he was 20 and in his last term at Harvard College, in the class of 1861. As an infantry officer in Virginia, he had received a near-fatal wound at Ball’s Bluff in his first battle, where he was shot through the chest in a Union raid that backfired. He had proved his valor by rejoining his men after he was shot, defying an order to have his wound tended. At Antietam a year later, where he was briefly left for dead on the bloodiest day in U.S. Army history, a bullet ripped through his neck. At Chancellorsville, in another eight months, an iron ball from cannon shot badly wounded him in the heel. Near there in winter, “Holmes lay in the hospital tent too weak even to stand as he suffered the agonies of bloody diarrhea,” Stephen Budiansky, M.S. ’79, writes in a new biography of Holmes: “The disease killed more men than enemy bullets over the course of the Civil War.”

That spring, generals Ulysses S. Grant and Robert E. Lee met on the battlefield for the first time. Grant, the newly appointed commander of the Union Army, had shifted its main target from Richmond, the capital of the Confederacy, to Lee and his roving Army of Northern Virginia. The Battle of the Wilderness was the opening fight. In fierce encounters over two days, of 119,000 Union soldiers, one of seven died or was injured; one-sixth of Lee’s 65,000 troops were casualties. Holmes filled a new role as an officer on horseback in the Wilderness. As Budiansky recounts, he faced “the most intense and nightmarish episode of the entire war for him, nine weeks of nonstop moving, fighting, and killing that would often find him falling asleep in the saddle from sheer fatigue, escaping death by inches, and witnessing carnage on a close-up scale that eclipsed even his own previous experiences.”

It is impossible to imagine a current Supreme Court justice being forged in such circumstances—with the survival of the nation, as well as of the multitudes fighting, so uncertain. In part because of changes that Holmes himself brought to the law, and ultimately to the Court, it is now a very different institution from the one he served on. The lives of the justices appear distant from the experiences of their fellow citizens. Yet there are important parallels between Holmes’s era and the current one, and between the challenges for the Court in his time and now. A century ago, as today, politics splintered the nation and inequality segregated it. The Court was subject to ideology, unchecked partisanship, and the kind of political warfare expected only in high-stakes campaigns.

In these circumstances, Budiansky’s new Oliver Wendell Holmes: A Life in War, Law, and Ideas—coming during the centennial year of Holmes’s most momentous opinion, which was a visionary dissent about free speech—is especially consequential. It’s the latest in a considerable library of biographies and studies. Many scholars have recognized the war’s critical influence on Holmes. Yet Budiansky, whose previous books include six on military history, renders Holmes’s war, and how it lodged in his psyche, as no writer has before.

“In a war where romantic chivalry, high-minded zeal for a great cause, and even heroism in the conventional sense of the word had lost its meaning in an orgy of almost random death,” he writes, “duty was one thing he could cling to.” The war gave Holmes “a profound lesson in the practical courage of everyday life.” As Bass professor of English Louis Menand wrote of the abolitionist Holmes in The Metaphysical Club, “He had gone off to fight because of his moral beliefs, which he held with singular fervor. The war did more than make him lose those beliefs. It made him lose his belief in beliefs.”

That outlook shaped his legal thinking, and in turn, shaped a set of principles for the law and the Supreme Court that are now valuable to reconsider. More broadly, Budiansky’s is now the most engrossing of the major Holmes biographies. It vibrantly recounts the influence on his extraordinary public experiences of his extraordinary private ones. The result matters because, as Warren professor of legal history emeritus Morton J. Horwitz put it, Holmes was the “one great American legal thinker.” He was the first member of the Supreme Court to face up to the reality that, contrary to what nineteenth-century legal thinking held, justices were not oracles who divined principles of law. In applying law to facts, he made clear, they were law-makers, unconstrained by law itself—a role society would accept only if these law-makers were not tainted by partisanship.

For 40 years, from the end of the nineteenth century to the end of the Great Depression, including Holmes’s time on the Court, a conservative majority (it did not include him) repeatedly struck down federal and state laws regulating social and economic conditions intended to improve the lives of America’s have-nots. The conservatives did that because of their policy views: they objected to what they saw as unjustified government meddling in the market. Today’s Court continues on a similar, half-century-long move to the right. It’s unsurprising that, in the past two terms, Chief Justice John G. Roberts Jr. ’76, J.D. ’79, has joined a few times with the liberal justices to make five-vote majorities—about as often as he did in his first 12 terms on the Court. He has assumed its swing-vote seat as a result of its right-ward movement and his concern about its reputation for partisanship. The Court is widely seen as partisan in this way: the justices (five Republican-picked conservatives, four Democrat-picked liberals) have regularly voted in the most divisive cases as they would be expected to, based on what members of the party of the president who picked each justice likely want to happen.

As a justice, Holmes did what current justices seldom seem to: in dissent, he regularly voted to uphold laws whose policy impact he despised. The approach he employed to justify his decisions and preserve their legitimacy was judicial restraint: except in rare instances, he believed, courts should uphold laws as long as they had a reasonable basis, because they reflected the will of the community enacted by elected legislators. Between his tenure and now, judicial restraint became a political slogan, invoked by conservatives who disliked the liberal judicial activism of the Warren Court of the 1950s and ’60s, and by liberals who have disliked the conservative judicial activism of the Burger, Rehnquist, and Roberts courts since the 1970s.

For Holmes, judicial restraint was a professional imperative, the key to reconciling the role of the independent judge in assessing the lawfulness of democratically arrived-at laws in an undemocratic way. In taking that stance, he redefined the position of an American justice. He has bedeviled Holmes scholars who have struggled to reconcile his powerful analytic bent with his recognition that the world intrudes on ideals. Some have savagely faulted some of his opinions and prejudices. But in this centennial year of the 1919 Holmes judicial opinion that redefined the purpose of free speech in American life, it’s illuminating to recall how he became, with Chief Justice John Marshall, one of the two most illustrious justices to serve on the Supreme Court.

Skepticism

MANY SCHOLARS have contended that Holmes was a cynic—icy and aloof, mean-spirited and dark, and supremely self-centered. To Budiansky, the Civil War made Holmes a skeptic—doubting and fatalistic—but not a cynic: it made him question “the morally superior certainty that often went hand in hand with belief: he grew to distrust, and to detest, zealotry and causes of all kinds.” It also helped make him charming, exuberant, and very ambitious, searching, open-minded, and unquenchable. As he put it in a letter to a friend: “My old formula is that a man should be an enthusiast in the front of his head and a sceptic in the back. Do his damndest without believing that the cosmos would collapse if he failed.”

Holmes’s anti-exceptionalism helped define what made the United States exceptional in the twentieth century. In the decade after the Civil War, in the intellectual precincts of Brahmin Boston where he was born and bred an aristocrat, Holmes constructed ideas with other gifted thinkers, and helped shape pragmatism, the most American of America’s contributions to philosophy. It was “an idea about ideas,” Menand wrote, which “changed the way Americans thought” and “changed the way Americans live.” These thinkers believed, as he wrote, that ideas—“like forks and knives and microchips”—are tools that groups of people “devise to cope with the world” and that “their survival depends not on their immutability but on their adaptability.” The test of an idea was its impact.

The Civil War preserved the Union, but turned America into a different country. Menand emphasized, “For the generation that lived through it, the Civil War was a terrible and traumatic experience. It tore a hole in their lives. To some of them, the war seemed not just a failure of democracy, but a failure of culture, a failure of ideas,” because those ideas had become ideologies, “either justifying the status quo” in the South or “dictating some transcendent imperative for renouncing it” in the North.

In 1864, when Holmes began Harvard Law School’s then-two-year program, Budiansky writes, he “applied himself to the work with an intensity not dampened by the intellectual incoherence of the subject as it was then presented to students.” In 1865, he began listing each book he read in a small leather-bound volume. When he died 70 years later, two days short of his ninety-fourth birthday, they numbered more than 4,000: Plato and Homer in Greek; Dante in Italian; Balzac, Proust, and Rousseau in French; literature,   plays, and poetry; history, religion, science, philosophy, economics, and sociology, plus murder mysteries; and, most of all, law. (He also read German and Latin.) (HOLMES with TAFT)

After getting his degree in 1866, at 25, he took his first of many trips to Europe. At a dinner in London, he was invited to join a climb in the Swiss Alps. Soon after, he scaled the Balmhorn, a 12,000-foot peak first climbed only two years before. The few weeks he spent in the Alps were the only time in his life that he climbed, yet to Budiansky, Holmes’s climbing reinforced his view that “true skepticism meant recognizing that the universe cares nothing about our existence, and that man ought to return the favor, and get on with life.” As Budiansky summarized, “Before Holmes had even begun to think of developing a comprehensive philosophy of law, he had worked out a philosophy of life.”

In Boston, Holmes practiced law ably for 15 years. He argued maritime, insurance, and tax cases for businesses before the U.S. District Court and the Massachusetts Supreme Judicial Court and won an admiralty case in the U.S. Supreme Court. He became a contributor to the newly launched American Law Review and, in a few years, its co-editor. With James B. Thayer, class of 1852, LL.B. ’56, a prominent Boston lawyer who became an influential professor at the law school, he undertook a revision of Kent’s Commentaries on American Law, spanning the scope of the law. He completed the work in 1874, when he turned 33.

“Though fragmentary,” Holmes’s articles for the American Law Reviewambitiously aimed to “analyze what seem to me the fundamental notions & principles of our substantive law.”

In 1879, describing the scope of his ambition in a letter to an English legal colleague, he noted that the articles he had been writing for the American Law Review, “though fragmentary in form and accidental in order are part of what lies as a whole in my mind—my scheme being to analyze what seem to me the fundamental notions & principles of our substantive law.” He completed the job in the lectures that became a paradigm-shifting book.

The Common Law, published in 1881, was Holmes’s giant contribution to the literature of pragmatism. The prevailing view about this form of law in the late nineteenth century was that judges didn’t make law, they expertly applied it from legal precedents and customs. Christopher Columbus Langdell, the law school’s dean for 25 years beginning in 1870, was a leading proponent of this view. His appointment as dean marked the start of the school’s national influence in American law.

In contrast, Holmes famously began: “The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.” He lampooned Langdell as “the greatest living legal theologian.” He rejected the notion that the common law was “a brooding omnipresence in the sky” that judges apprehended. Instead, as Budiansky recounts, he “set out to study the history of the law for the same reason Darwin studied fossils: to elucidate the actual purpose and functions underlying its accumulated appendages and outer forms.” From research on what Budiansky describes as “the gamut of the law”—governing contracts, torts, property, wills, crime, and more—he reached conclusions that were “strikingly original, as well as a radical assault on legal tradition.”

The law evolved “in a way that tended to hide the fact, by continually inventing new explanations for old rules.” Judges made choices and, in doing so, made law and policy—“solutions that addressed actual problems and needs of society,” reflecting “efforts by courts to work out a balance between competing interests in society.” And “most shocking to conventional sensibilities, the law as it actually was applied had little concern with moral culpability: in all branches of the law, there had been an evolution away from trying to determine whether a man had acted with evil intent, substituting rules based on external standards of conduct that reflected social needs and norms of behavior.”

Budiansky calls The Common Law “the single most important book in the history of American legal scholarship,” as others have similarly praised it. The book inspired the movement known as Legal Realism, which focused on law’s concrete effects rather than its formalistic axioms, and it remade American law.

On the strength of the book, Holmes rose from a part-time lecturer at the law school to a full-time, very short-term, faculty member in a new professorship endowed for him. At the end of 1882, after only his first academic term of full-time teaching, the Massachusetts Republican governor, who was about to be replaced by a Democrat, offered Holmes a seat on the state’s Supreme Judicial Court—and gave him an hour and a half to make up his mind. He instantly accepted. In December 1882, at 41, Holmes became the court’s junior justice.

In the Fray

HOLMES WAS ERECT, lean, and six foot three when he took the bench, with thick brown hair, radiant blue-gray eyes, and a thick brown handlebar moustache. He spent 20 years on the state court, the last three as chief justice. (Harvard awarded him an LL.D. in 1895.) In December 1902, when he was 61 and not widely known outside Massachusetts, President Theodore Roosevelt, A.B. 1880, LL.D. 1902, selected him for the U.S. Supreme Court, where he served for 29 years until he was almost 91. By his ninetieth birthday, he had become an American hero (“the great overlord of the law and its philosophy,” his successor Justice Benjamin Cardozo called him) and appeared on a special 30-minute national radio broadcast honoring him. His hair and moustache retained their thickness as he aged, but turned white. By the time he retired almost 50 years after becoming a justice, he embodied the role—he was the Yankee from Olympus, as the biographer Catherine Drinker Bowen dubbed him in her bestseller. His judicial career was Herculean, leading the Supreme Court to grapple with what Menand described as “the way of life we call ‘modern.’”

His reputation, however, is also stained. The most controversial evidence comes from the opinion Holmes wrote in 1927, at the age of 86, in Buck v. Bell. By 8-1, the Court upheld the decision of the Virginia State Colony for Epileptics and Feebleminded to sterilize Carrie Buck, an 18-year-old woman placed there after she was raped and became pregnant, because she was “feebleminded.” Buck’s mother was there for the same reason. Buck gave birth to a baby girl considered feebleminded, too. If the nation could call on its “best citizens” to sacrifice their lives in war, Holmes wrote, it could demand a “lesser” sacrifice of those who “sap the strength” of society because of their dependence on it. One blunt sentence of Holmes’s short opinion made it infamous, playing up the accepted term then for people later termed retarded and now called intellectually disabled: “Three generations of imbeciles are enough.”

Imbeciles, the 2016 book by Adam Cohen ’84, J.D. ’87, a one-time president of the Harvard Law Review, uses Holmes’s role in the Buck case as the basis for a biting indictment of the eugenics movement and, more pointedly, of Holmes (see “Harvard’s Eugenics Era,” March-April 2016, page 48). “In Holmes’s view,” Cohen wrote, “life was naturally competitive and cruel, and he had little inclination to rein in its harsh injustices.” A crucial source of Cohen’s grievance is the chasm he perceived between the “true Holmes” and the justice with the reputation for “transcendent nobility.” Part of that was that Holmes was not “a progressive”—a liberal—despite being known as that. He had no sympathy for the downtrodden.

Budiansky calls the Buck case “the one that would cast the longest shadow over” Holmes’s name. For the justice, he says, the case was not difficult because the decision to sterilize Buck was based on a Virginia statute authorizing that practice by state institutions on people who had “idiocy, imbecility, feeblemindedness” or “hereditary forms of insanity,” and the law allowed an inmate or her guardian to contest a decision to sterilize, as a lawyer for Buck had done, futilely.

In defense of Holmes, Budiansky writes that he didn’t know Buck’s appeal “had been largely a sham” because of blatant conflicts of interest of the lawyer who represented her. He did not challenge bogus testimony that Buck, her mother, and her seven-month-old daughter were feebleminded. Had Holmes been aware of the collusive nature of the appeal, Budiansky thinks, “he might very well have taken a different view of the matter.” But more broadly, Holmes was not a liberal, and didn’t pretend to be one: he was willing, Budiansky writes, “to uphold the rights of unions, free speech for socialists, and regulation of the economy not from any ideological sympathy for liberal causes but often in spite of a magnificent contempt for them,” because he practiced restraint. His Buck opinion wrenchingly shows he was sometimes as captive of the era he lived in as he called out other judges for being: prejudices that judges share with others, he stressed, can override reason in court rulings. Providing the fullest measure of Holmes’s life yet, Budiansky makes a sympathetic-to-Holmes and convincing case that the justice should not be dismissed based on the worst opinion he wrote.

The Court Made Modern

THE SUPREME COURT WAS a much less powerful institution in Holmes’s era than it is today. It was a forum of last resort, correcting lower-court mistakes, as it had done for 135 years, required to hear appeals about all federal cases.

That changed fundamentally with the Judiciary Act of 1925, which Chief Justice (and former president) William Howard Taft got passed to reduce the justices’ heavy workload. It drastically cut mandatory jurisdiction, gave the Court control over most of its docket, and redefined it as a co-equal branch of the federal government, symbolized by the majestic building that Taft got the government to construct for it, which opened in 1935.

As the legal scholar Robert Post ’69, Ph.D. ’80, has explained, “Supreme Court opinions both reflect and constitute the role of the Supreme Court itself.” In most of the days of the Taft Court, they were written for the litigants in the case and largely concerned private legal matters. The law was “fixed and certain” because 9-0 opinions were routine: 84 percent of that Court’s opinions were unanimous. Opinions were “relatively short and succinct.” Now, opinions are much longer, written for the American public and the legal academy, and largely concerned with developing American law. They are also generally splintered: last term, the justices were in total agreement in only 26 percent of the cases they decided.

Holmes wrote a record 873 signed opinions as a Supreme Court justice, plus 30 separate concurrence opinions and 72 dissents. His opinions averaged 3.3 pages, notably shorter than other justices’ in his era, reflecting his view, Post wrote, that “the point of an opinion was to solve the legal puzzle” crisply, like “an oral utterance,” not “like an essay with footnotes.” (That concision can make it hard to understand fully what he meant—a source of a lot of Holmes scholarship.)

The Judiciary Act sparked what Post called “a revolution in the practice of dissent,” reflecting the transformation of the Court’s mission to shaping law “to achieve social purposes.” The ratio of majority opinions to dissents Holmes wrote in almost three decades on the Court was 12 to one. As Budiansky reports, he was “one of the justices most likely, in the interest of collegiality and unanimity, to go along with an opinion he had initially opposed.” Yet Holmes is properly known as the Great Dissenter. He wrote dissents that foresaw where American law would go. He was a modern justice on a bench that turned over completely after he retired, with nine new justices soon comprising a new—and modern—Court.

Three other justices took the unprecedented step of visiting Holmes at home to try in vain to talk him out of dissenting and, in their view, imperiling the safety  of the nation. return the favor, and get on with life.”

The most famous Holmes dissent—the one that best displays his pragmatic bent, and his commitment to restraint over ideology—came in Lochner v. New York, in 1905, during his third term on the Court. By 5-4, the Court struck down a New York State statute that regulated sanitary and working conditions in bakeries, limiting work to 10 hours a day and 60 hours a week, on the grounds that the hour limits were “an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best.” For decades, the conservative majority had struck down scores of state and federal laws they disagreed with, as the results of democracy run amok. They did so on grounds that the Constitution allowed no government regulation of the economy or private property except when that was essential to protect public health or safety, because of what they called liberty of contract. Holmes avowed that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire,” as in Lochner. High-profile subjects on which the Court came around to Holmes’s view included: upholding legislation regulating the wages and hours of workers and banning child labor; restricting yellow-dog contracts, which required workers to quit or not to join unions, and restricting injunctions against workers; ensuring fair trials for unpopular defendants; and protecting consumers.

In 2019, Holmes’s most monumental dissent is in the spotlight, because of the centennial of Abrams v. United States. By 7-2 in 1919, the Supreme Court upheld the conviction of five Russian Jewish anarchists under the 1918 Sedition Act, for interfering with the U.S. effort in World War I and criticizing the form of the U.S. government. The five committed their crimes in Manhattan by distributing 5,000 copies of two leaflets, one in Yiddish, the other English. They called the president a liar for deceiving the American people about U.S. war efforts to crush the Russian Revolution, and called for a strike in factories making munitions. Three other justices took the unprecedented step of visiting Holmes at home to try in vain to talk him out of dissenting and, in their view, imperiling the safety of the nation.

Instead, he laid the groundwork for free speech as we know it. His dissent, Menand wrote, “helped to make tolerance an official virtue in modern America.” Justice Louis D. Brandeis, LL.B. 1877, joined Holmes in the dissent and, soon, in refashioning this area of law, with Brandeis emphasizing that America’s democracy depends on speech’s freedom. As the journalist Anthony Lewis ’48, Nieman Fellow ’57, wrote, “Judges, serving for long terms and bound by their commissions to look beyond momentary partisan conflicts, are in the best position to give voice to the deeper values.” Holmes did that, he went on, “in words that forever changed American perceptions of freedom.”

The story about how, at 78, after 37 years on the bench, Holmes changed his mind about the meaning of free speech and the need for the Court to strengthen its protection deserves its own book. Thomas Healy, a legal scholar, published it in 2013, a wonderful history called The Great Dissent. He wrote that “with the country gripped by fear of the communist threat, Holmes was proposing something radical: an expansive interpretation of the First Amendment that would protect all but the most immediately dangerous speech.” Holmes had long supported the view that the government could punish speech that had no more than “a bad tendency”—the words might harm the public welfare at some point in the future, by inciting a crime or even just embarrassing a court.

But, now, he wrote that the government could not punish speech unless it produced or intended to produce “a clear and imminent danger that it will bring about forthwith certain substantive evils that the United States constitutionally may seek to prevent.” That did not include what Holmes, about one of the offending polemics, called “the surreptitious publishing of a silly leaflet by an unknown man”—both leaflets, he wrote, were “poor and puny anonymities.”

To Holmes, the defendants in the case “had as much right to publish as the Government has to publish the Constitution of the United States.” The touchstone of that radical view was the insight of John Stuart Mill that a suppressed opinion may contain an idea that society needs, even a false one, to confirm a truth. Holmes wrote: “[W]hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundation of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based on imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”

A decade later in another celebrated dissent, Holmes distilled his understanding of freedom of expression to the tenet on which the law still centers: “[I]f there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.” Today, this tenet and every aspect of the freedom of speech are being contested, especially whether this prime right remains sacrosanct. Scholars and others are arguing ardently about how best to protect American speech so it serves the function that Holmes defined, without irreparably dividing the country—especially through fiery, intolerant reaction on social media to hated thought.

As a justice, mindful of the mayhem the Civil War unleashed, he believed his role was to help maintain American self-governance.

Free-speech campaigns invariably extol individuals whose freedom to express hated speech is in jeopardy. But to Holmes, that freedom is tied to the interests of society, not to an individual right: free speech is a listener’s right as much as a speaker’s. Democracy depends on deliberation and even, as Holmes demonstrated in the Abrams case, on doubting “one’s own first principles.” With that dissent, he helped launch a nation-defining movement. He tackled a decisive challenge for the twentieth century that is again decisive for the twenty-first: how to safeguard speech, for the sake of American democracy.

* * *

From early in his legal career, Holmes emphasized that the American Republic is an experiment in self-government. His skeptical side made him doubt that the American people would regularly make wise choices about the nation’s needs. But as a soldier, he had felt a duty to risk his life for the Union and the continuation of the experiment. As a justice, mindful of the mayhem that the Civil War unleashed, he believed that the contribution he could make, as the legal historian Robert W. Gordon ’67, J.D. ’71, explained, was to help maintain the experiment’s essential framework and fairness.

That meant protecting free speech so the strongest ideas would prevail in the marketplace, without government distortion of the competition or censorship of frightening ideas. That meant letting unions promote their interests and advocate for their members, the way capitalists could theirs. That meant encouraging evenhanded contests among all competing claims, even of unpopular defendants, and keeping entrenched interests from rigging the rules. In reconsidering Holmes’s invaluable life, Budiansky has performed the invaluable service of reminding Americans that the conservative Holmes insisted on the importance of those liberal principles.

Those principles of Holmes, for the sake of the Constitution, the American experiment, and basic fairness, remain eloquent and indispensable—including in challenging the current Court’s over-protection of big corporations, pushback against well-grounded economic and social regulation, and favoritism for haves over have-nots. What made Holmes the Great Dissenter a century ago would no doubt make him a Great Dissenter today. 

Contributing editor and journalist Lincoln Caplan ’72, J.D. ’76, a senior research scholar at Yale Law School and the senior editor at the Knight First Amendment Institute of Columbia University, was a colleague of Stephen Budiansky at U.S. News & World Report. “The Political Solicitor General,” his feature about the role of the S.G. and the politicization of the Supreme Court, appeared in this magazine’s September-October 2018 issue.

still howling at the ‘moon hoax’

50 years after Apollo, conspiracy theorists are still howling at the ‘moon hoax’

By Joel Achenbach Washington Post

The moon is having a star turn. This summer will mark the 50th anniversary of the Apollo 11 lunar landing, and the Trump administration has ordered NASA to put astronauts back on the moon by 2024.

None of this, however, will probably change the minds of people who live in a parallel belief universe where NASA faked the Apollo moon landings.

The moon hoax is a classic conspiracy theory — elaborate, oddly durable, requiring the existence of malevolent actors with a secret agenda. The moon-fakers are allegedly so competent they can fool the whole world (but not so competent that they can actually put humans on the moon).

Researchers suggest conspiracy theories are spreading more easily in today’s information universe, with the Internet functioning as a superconductor. A growing science of conspiracism seeks to understand who these people are, why they embrace such ideas, and whether there is anything that can dislodge a really magnetic conspiracy theory from the mind of a true believer.

Polls show that about 5 or 6 percent of the public subscribes to the moon-hoax theory, former NASA chief historian Roger Launius said. That is a modest number, but these folks showed up reliably whenever Launius gave a lecture on the topic: “They’re very vocal — and they love to confront you.”

As NASA celebrates Apollo 11, the space agency must decide whether, and how, to respond to the moon-hoax conspiracy theory.

In response to a query from The Washington Post, NASA spokesman Allard Beutel issued a statement saying there is “a significant amount of evidence to support NASA landed 12 astronauts on the Moon from 1969-1972,” and specified some of that evidence: NASA has “842 pounds of astronaut-collected Moon rocks studied by scientists worldwide for decades; you can still bounce Earth-based lasers off the retroreflector mirrors placed on the lunar surface by the Apollo astronauts; NASA’s Lunar Reconnaissance Orbiter imaged the landing sites in 2011 . . . ”

And so on. But it’s a tough situation for NASA.

The evidence that the moon landings were real is exactly what a conspiracist would expect to be manufactured by an agency committed to hoodwinking the public. This is the eternal conundrum for debunkers.

The theory never dies

In one iteration of the theory, the Apollo missions were filmed by legendary movie director Stanley Kubrick, who directed “2001: A Space Odyssey.”

Bill Kaysing, a former technical writer, published a book in 1976 titled “We Never Went to the Moon,” which became a foundational text in the moon-hoax mythology.

In 2001, the Fox TV network aired a documentary called “Conspiracy Theory: Did We Land on the Moon?” with actor Mitch Pileggi of “The X-Files” TV series (one theme of which was “Trust No One”) serving as narrator.

The conspiracy theory keeps popping up.

During a podcast discussion with other NBA players in December, basketball superstar Stephen Curry lobbed the idea that humans hadn’t gone to the moon. (He soon backpedaled, apologized and had a friendly chat with astronaut Scott Kelly.)

A key feature of the moon-hoax idea is that photographs taken by the Apollo astronauts (supposedly!) simply don’t look right. For example, where are the stars? Also, there’s no blast crater underneath the lunar lander.

NASA can explain all of these points.

The camera couldn’t pick up the faint light of stars behind the astronauts and other bright objects on the sunbathed surface. And in the moon’s gentle gravity field, the lander’s descent engine didn’t need to produce much thrust to settle onto the moon’s surface.

NASA responded to the book and film by putting out a statement citing the moon rocks as incontrovertible evidence: “The rocks and particles, still under study by scientists worldwide, were clearly formed in an atmosphere lacking oxygen and water and they show major chemical differences from any previously known Earth rocks.”

Astronomer Phil Plait dissected the hoax hypothesis in a 2001 blog post that holds up as the definitive debunking. “Their evidence is actually as tenuous as the vacuum of space itself,” Plait wrote.

A more direct response came from Apollo 11 astronaut Edwin “Buzz” Aldrin when he was hectored by conspiracy theorist Bart Sibrel outside a Beverly Hills hotel in 2002.

Sibrel, brandishing a Bible and asking Aldrin to swear on it, said, “You’re the one who said you walked on the moon when you didn’t. . . . You’re a coward and a liar and a thief.”

WHAM.

Aldrin decked him with a right cross.

Often strange, sometimes toxic

Conspiracy theories may seem strange and fringe, but they are not harmless. They often transmit racist, anti-Semitic, Islamophobic beliefs. In their most toxic form, these theories have led to violence, including mass shootings. Behind many conspiracy theories lurks a pervasive rage. Many researchers and communicators who deal with fringe conspiracy theories endure venomous and misogynistic threats and harassment.

A conspiracy theory doesn’t have to provide all the answers. It has to only pry open the consensus narrative and expose potential gaps or anomalies in what we know. The classic conspiracy theory is thus an open narrative. The only thing the conspiracy theorist knows for sure is that what the experts are saying isn’t true.

In a 2012 paper titled “Dead and Alive: Beliefs in Contradictory Conspiracy Theories,” researchers showed that people with high degrees of conspiracism can embrace two mutually exclusive narratives, so long as both reject the mainstream consensus. For example, people more inclined to believe that Princess Diana faked her death were also more inclined to believe she was murdered. Both cannot be true.

In a 2013 paper, cognitive scientist Stephan Lewandowsky and two colleagues found that conspiratorial thinking contributes to the rejection of the scientific consensus on matters such as climate change, vaccine safety and HIV/AIDS. People susceptible to conspiracies begin with a mind-set — that the world is full of secretive forces with malign agendas — and can be induced to believe in newly fabricated conspiracies.

'Flat Earth' enthusiasts

The moon-hoax idea is closely related to “flat Earth” theory, which has gained adherents in recent years thanks to social media and viral videos.

“In reality, you are actually in a giant planetarium, slash terrarium, slash sound stage, slash Hollywood back lot that is so big that you and everyone you know and everyone you’ve ever known never figured it out,” declares a leading flat earther, Mark Sargent, in the documentary “Behind the Curve.”

In Sargent’s version of Earth, Antarctica is a 200-foot-tall wall of ice circling the disk of the Earth like salt abundantly applied to the rim of a Margarita. The sun and moon are two lights circling the sky like planes in a holding pattern.

When Asheley Landrum, a psychologist at Texas Tech University, attended the first Flat Earth International Conference near Raleigh, N.C., in 2017, she discovered that 29 of the 30 people she interviewed had embraced the flat Earth notion after watching YouTube videos, and the only exception heard about it from family members who had watched those videos.

Typically, they had been watching conspiracy videos about such subjects as the Sandy Hook school shooting or the September 11, 2001, terrorist attacks, and YouTube had recommended the flat Earth videos. They followed the trail blazed by computer algorithms.

The people Landrum interviewed reported being skeptical of the flat Earth notions initially. The conversion process involved continued investigation — what Landrum described as an attitude change coming from a “thoughtful systematic, or mindful, approach.” They were trying to get it right.

Landrum said she has found that people are more likely to be open to the flat Earth idea if they were low in science literacy and high in conspiracy mentality. Her research suggests that flat earthers occupy all points of the traditional political spectrum, but they share a common distrust of government and authorities.

At the conference, every person she interviewed said the moon landings were faked. They do not think the Earth is a planet. The Earth is a disc and its center is the North Pole (as anyone can clearly see in the official emblem of the United Nations).

“The most basic thing it affirms is that people are special. We’re not a speck of dust floating in this vast space, but the Earth is the center of things. We’re not moving. We’re not a planet. This is it. Heaven is above the Earth, hell is below the Earth,” Landrum said.

Trump and 'birther' belief

One conspiracy theory helped shape the political career of President Trump. Long before he ran for president, Trump stoked the “birther” belief that President Barack Obama was not born in the United States, and was not constitutionally eligible to serve as president. In her recent memoir, former first lady Michelle Obama said Trump’s birther promotion was “dangerous, deliberately meant to stir up the wingnuts and kooks,” and put her family’s safety at risk.

Trump has repeatedly called global warming a “hoax.” He has hinted that Supreme Court Justice Antonin Scalia died of foul play. While running for president, he claimed that, before the assassination of President John F. Kennedy, the father of his leading rival, Sen. Ted Cruz (R-Tex.), had met with Lee Harvey Oswald.

“I could say, with some degree of certainty, that he uses conspiracy theories to motivate his core supporters. Whether he believes them or not is a completely different question,” said Joseph Uscinski, a University of Miami professor and co-author of the book “American Conspiracy Theories.”

For years, Trump endorsed one of the most dangerous conspiracy theories: that vaccines cause autism. (He recently reversed himself and urged parents to vaccinate their children.) Leaders of the movement contend that pediatricians, the Centers for Disease Control and Prevention, vaccine manufacturers, medical journals, and epidemiologists around the world are hiding this terrifying truth. Anti-vaxxers have spread misinformation and dissuaded parents from protecting their children. This is a factor in the record-breaking measles outbreak that is still raging this year.

For any of these conspiracies to be true, they would have to be vast in scale, ruthless in implementation and strikingly efficient — with no leaks from conspirators. Apollo sent 24 astronauts to the vicinity of the moon and 12 walked on it, and not one of them has revealed their big secret.

Naomi Oreskes, a Harvard professor of the history of science, says all this conspiracy-mongering does matter when it comes to issues such as climate change and vaccine safety.

“Without trust in institutional authority — and particularly without trust in science — we are left with no way to correct disinformation,” Oreskes said. “And from there, it is a downward spiral.”

It’s time to make rich people uncomfortable again

It’s time to make rich people uncomfortable again

By P.J. O'Rourke Washington Post

May 20 at 3:38 PM

P.J. O’Rourke is the editor in chief of American Consequences and the author, most recently, of “None of My Business: P.J. Explains Money, Banking, Debt, Equity, Assets, Liabilities, and Why He's Not Rich and Neither Are You.”

Lately there has been a lot of anger and indignation about income inequality. Some blame this on . . . income inequality. I blame it on rich people in T-shirts.

I won’t mention Mark Zuckerberg by name. But, honestly, young man, you’re almost 35 years old, worth $72 billion, and you’re wearing your underwear in public.

Yes, I’m also going around in an untucked “My Kid Went to College and All I Got Was This Lousy . . .” But I’ve earned it. Or, rather, I haven’t. I can’t afford a Savile Row morning suit, Turnbull & Asser dress shirt, Hermès cravat and pair of bespoke John Lobb Oxfords. And — taking out the trash, gassing up the car and ordering an Egg McMuffin at the drive-through window — I wouldn’t be comfortable wearing them.

But Zuckerberg in his Fruit of the Looms seems too comfortable. And this makes us mad.

There was a time when wealth was distributed far less equitably, but we weren’t as resentful of the rich. We resented our poverty, but we were relieved that we didn’t have to put on striped pants and spats to have breakfast.

Being rich looked very uncomfortable. Rich people’s clothes were stiff and starchy, and they wore lots of them. Rich men were choked by tall collars and pinched by high-button shoes. Rich women were corseted to the point of kidney failure, constrained in so much crinoline and brocade that they might as well have been wearing off-the-shoulder burqas, and encumbered by bustles large enough that they couldn’t turn sideways without knocking over a footman and the parlor maid.

Now we have Jeff Bezos in a New Kids on the Block bomber jacket, Bill Gates outfitted in Mister Rogers’s sweaters and Gloria Steinem’s old aviators and cutting his own hair, Elon Musk smoking pot on a live Internet show, and Richard Branson looking like the guy at the end of the bar muttering lines from “The Big Lebowski.” That’s not counting the various plutocrats caught in Us and Star magazines wearing nothing much at all.

If rich people start getting any more comfortable, police will be shooing them off park benches.

Rich people are also having fun — launching their own rocket ships, sending lewd selfies, buying private islands (Manhattan, for example). Having fun was something rich people didn’t used to do, at least not as far as we poor people could tell.

They went to the opera. It was like vaudeville except without the tap dancing, acrobatics, magic tricks, jokes or entertainment.

Rich people — and there were supposedly only Four Hundred of them — gathered in Mrs. Astor’s ballroom. They waltzed like sticks in the mud to music that would put the dead to sleep, and ate and drank tiny things from tiny plates and glasses. They never knocked the bung out of the beer keg or danced a polka.

Being rich meant living in a big drafty house with no privacy because the footman and parlor maid you clobbered with your bustle were always poking around.

You had to wait to eat dinner until 8 p.m. Table manners were complicated. Which knife do you use to eat peas? And strange foods were served — terrapin soup (boiled turtle), shad roe (eggs that not only weren’t fried but came from a fish) and pheasant under glass (dangerously breakable).

Rich people trying to have fun didn’t look like much fun, either. They got soaked in their yachts, broke their necks on their polo ponies and wore themselves to a frazzle walking all over tarnation hitting little white balls with a stick for no reason.

Even when relaxing they had to get dressed up according to strict social protocol. If you arrived at a yacht race wearing plus-fours and a tam o’shanter, Commodore Vanderbilt would dunk you.

These days rich people are behaving just like the rest of us. Or just like the rest of us would if we were rich. The trouble is we can’t afford to be rich slobs the way rich slobs can. (The wash-that-gray-away skivvies Zuckerberg sports are actually custom ordered from Brunello Cucinelli for upwards of $300.)

The rich aren’t satisfied with having all the money. They want all the fun, too. And that’s not fair.

Let’s make rich people uncomfortable again. Maybe tax the dickens out of them. But somehow taxation never enriches me. Let’s require everyone with a net worth over $100 million to wear a top hat at all times. This does nothing to fix income inequality — but what a swell target for snowballs, brickbats and rotten fruit.

He’s Bad, She’s Mad Tales of Holloway Prison, UK

He’s Bad, She’s Mad

Mary Hannity London Review

• 
  Bad Girls: The Rebels and Renegades of Holloway Prison 
• by Caitlin Davies
• John Murray, 373 pp, 

On 26 September 1849 the lord mayor of London, Sir James Duke, laid the foundation stone for the new City House of Correction at Holloway. The land had been intended for use as a burial ground for victims of the recent cholera epidemic, but the epidemic had subsided, and the anticipated dead had not arrived. ‘May God preserve the City of London/And make this place a terror to evil-doers,’ the foundation stone read. HMP Holloway, which was the largest women’s prison in Western Europe at its closure in 2016, at first held 120 men and 27 women, as well as a number of boys over the age of eight. Men and women occupied separate wings and had separate tasks: women did the laundry and men and boys worked the treadwheel that supplied water to the prison (this was dangerous work – the treadwheel at Aylesbury Prison was removed in 1843 after three prisoners were crushed to death in a single year). The women, most of whom had been found guilty of prostitution or drunkenness, lived on F Wing, on the eastern side of the prison. Each cell wall had a list showing the daily prison routine. The day began at 5.45 a.m. in summer and 6.45 a.m. in winter (‘Rise, open ventilator, wash, fold bedding’) and ended at 9 p.m. (‘Sling hammock and prepare for bed … lights out’). ‘The light goes out,’ wrote Sylvia Pankhurst, who was imprisoned at Holloway in 1906, and then ‘darkness, a long, sleepless night, and the awakening to another day like yesterday and like tomorrow’.

The conversion of Holloway into a women-only prison in 1902 reflected broader shifts in the British penal system. Before the centralisation of the prison estate in the later 19th century, criminal punishment mostly meant exile or execution. Convicts had been transported to British colonies in the Americas and later to Australia throughout the 18th century. After public hanging was abolished in 1868, the same year the last convict ship arrived in Western Australia, a prison term became the most common form of punishment, one practised as a monopoly of the state.

The Prisons Act of 1877, which brought prisons in England, Scotland and Wales under state control, encountered opposition in Parliament for ‘sapping the foundations’ of independent local administration. Until then, most prisons had been run by local authorities. Conditions varied hugely: wealthier inmates at Holloway, such as W.T. Stead, editor of the Pall Mall Gazette, could pay six shillings to entrepreneurial jailers for a private cell and a ‘first-class’ stay. (‘Never had I a pleasanter holiday, a more charming season of repose,’ Stead wrote of his incarceration in 1885, after he had ‘purchased’ a 13-year-old girl as part of an exposé of child prostitution.) At Newgate Gaol, established in the 12th century and finally closed in 1902, debtors and felons had to pay for their food, water and gin, and could purchase their release from fetters in a ‘trade of chains’. Male prisoners could ‘visit’ their female counterparts (who might afterwards ‘plead the belly’ to avoid execution) at the cost of sixpence. When the Quaker penal reformer Elizabeth Fry visited Newgate in 1813, she found three hundred women detained in a space designed for fifty, crammed together regardless of age or offence.

By contrast, the new Victorian houses of correction discouraged idleness and tried to induce reflection. In the early days of Holloway, inmates worked at oakum-picking (unravelling old rope for use in mat-making) in high-sided booths designed to prevent them from seeing or speaking to one another (at Pentonville, which opened in 1842, prisoners were made to wear masks while exercising). Keeping men and women separate was meant to curb the spread of criminal influence. ‘When woman falls,’ one prison director observed, ‘she seems to possess a capacity almost beyond man, for running into all that is evil.’ Women were thought to respond differently to detention: ‘Female prisoners, as a body, do not bear imprisonment so well as the male prisoners,’ according to the medical officer at Brixton’s all-female prison, which opened in 1853. The separation of men and women was difficult to enforce in mixed prisons, and so the prison commission – the establishment of which in 1877 furthered the process of prison centralisation – decided to ‘streamline the administration’ by sending the male inmates of Holloway to Brixton, Wormwood Scrubs or Pentonville and, in 1902, concentrating all of London’s female prisoners in Holloway.

The Gladstone Committee of 1895 suggested that ‘prison discipline … be more effectually designed to maintain, stimulate, or awaken the higher susceptibilities of prisoners’ and ‘develop their moral instincts’, marking an ostensible shift from a system of punishment to one of reform. The report also recommended the development of the borstal system for young offenders and the improvement of prison educational facilities. The argument for reform, however, conflicted with ideas of female depravity. Were women truly accountable for their actions? Were they redeemable? Did they have ‘higher susceptibilities’? As Caitlin Davies notes in Bad Girls, her history of Holloway and its inmates, incarcerated women were considered far more difficult to manage than men. Misconduct in Holloway, the prison inspector Arthur Griffiths insisted in 1870, was ‘intensified by hysteria, and those unsexed creatures respect no authority. At times the place is like a pandemonium.’ Selina Salter, one of the working-class prisoners Davies studies, was reported to have destroyed furniture in 13 cells and torn up six prison gowns. She was reprimanded four hundred times for refusing to work and two hundred times for violent conduct over the course of her repeated terms of imprisonment.

Descriptions of female temper may of course tell us more about contemporary expectations of femininity than about the experiences of female prisoners. In the year it became a women’s prison, Holloway had 949 inmates (when it closed, the figure was 590). As is still the case, most female prisoners were serving short sentences, which are associated with higher rates of recidivism. One woman served three weeks for begging, another one week for drunkenly disrupting a church service. Mary Spillane was sentenced to death after her baby was found dead in a dust heap, before being reprieved on account of her gender. (The baby’s father was charged but never stood trial.) Prison visits by upper-middle-class lady well-wishers, following Elizabeth Fry’s example, aimed to save the inmates from themselves: the Lady Visitors’ Association, founded in 1901 and active at Holloway, was ‘a body of earnest and devoted ladies with experience of rescue work and a keen sympathy with even the most degraded of their sex’. (In practice, these visits incited jealousy, disrupted prison routine, and provoked inmates into ‘simulating penitence’ to access privileges.) The governor lived to the left of the prison entrance, the chaplain to the right: one man for discipline, another for salvation.

Between 1906 and 1914 hundreds of suffragettes were imprisoned and force-fed in Holloway. They turned their resistance to prison rules into a political programme. Suffragette prisoners were held separately and forbidden from communicating, but if one of them smashed a window to protest against poor air quality, for instance, the others would follow suit. They documented their treatment and smuggled out letters and diaries. The WSPU rented a house nearby, and used it as a base to communicate with the prisoners – and to throw bombs and bottles at the prison. Suffragettes were greeted on release by applauding crowds. The governor resigned. ‘If you are not a rebel before going into Holloway, there is no reason to wonder at your being one when you come out,’ wrote Edith Whitworth, secretary of the Sheffield branch of the WSPU. The imprisonment of middle-class women, which was unusual, helped draw public attention to the treatment of incarcerated women in general, and the suffragettes agitated for improved prison conditions. Davies gives ample attention to their use of Holloway as an icon of struggle: a Holloway flag was waved on suffragette marches; Christmas cards were produced with an illustration of the prison (‘Votes and a Happy Year’); there were Holloway diaries, demonstrations, songs and poems (‘Oh, Holloway, grim Holloway/With grey, forbidding towers!/Stern are the walls, but sterner still/Is woman’s free, unconquered will’).

Other Holloway inmates did not feel themselves to possess such agency. ‘We all imagine we can mould our own lives,’ Edith Thompson wrote from Holloway, where she was executed in January 1923, having been found guilty of inciting the murder of her husband by her lover. ‘We seldom can, they are moulded for us – just by the laws and rules and conventions of this world.’ Thompson wasn’t wrong about the way in which women’s lives are made to fit particular shapes: the press dubbed her the ‘Messalina of Ilford’, after the ‘promiscuous’ wife of Emperor Claudius, killed for ‘conspiring’ against him. She was buried in an unmarked grave in the prison grounds – on which, it was said, no grass grew.

A reform programme in the 1930s – Mary Size was appointed deputy governor in 1927 with a brief to make Holloway ‘the best women’s prison in the country’ – brought educational improvements and a new stress on the importance of femininity: mirrors were allowed in cells, walls were painted pastel colours and one disused cell became ‘the shop’ – where, under a new scheme, inmates could buy cosmetics and make-up. (There was a demand for this: inmates had been using shoe polish for mascara and glossed their hair with margarine.) Flowerbeds were planted in the prison grounds. The early 20th century was a time of public scepticism about the value of imprisonment. In 1910, as home secretary, Churchill had criticised the ‘terrible and purposeless waste’ entailed in giving half of all prisoners sentences of two weeks or less; Alexander Paterson, a commissioner of prisons between 1922 and 1946, criticised the use of prison as a ‘ready handmaid’ to the courts. Prison ‘debases the currency of human feeling’, Sidney and Beatrice Webb declared in English Prisons under Local Government (1922). Policies like remission and probation, as well as the decision to allow people convicted of crimes time to raise money for fines, challenged the dominance of incarceration as a penal strategy, especially for petty offences: between 1908 and 1923 the number of fine defaulters going to prison dropped by 80 per cent.

The fall in the number of inmates at Holloway during the interwar years – by 1936 there were 350; in 1938 this dropped to 290 – corresponds to the use of these alternatives. The prison population in England and Wales halved between 1908 and 1939, from 22,029 to 11,086. Prisons were shut down, construction of new ones halted. Reading Gaol was briefly used as a driving test centre. The 1938 Criminal Justice Bill would have furthered the move away from custodial sentences, extending probation and providing new facilities for young offenders. The Home Office even made plans to relocate Holloway prisoners to the countryside. But these plans were shelved after war was declared in 1939, and the Criminal Justice Bill abandoned. The prison population began to grow again after the war (it quadrupled between 1900 and 2017, with half of this increase taking place since 1990). Wouldn’t it be practical, one local councillor said after visiting the empty cells at Reading in 1938, to ‘raze [the prison] to the ground, and utilise the site for a building more in keeping with our social needs’? The rural site the Home Office wanted to use for women prisoners is now Heathrow airport.

By 1946, Holloway had around five hundred prisoners, who were struggling with rationing: they were short of sanitary towels and were using pages of the Bible as toilet paper (Kathleen Lonsdale, a Quaker scientist and conscientious objector, was told to ‘use Moses’). Inmates worked during the day and were confined to their cells at 4.30 p.m., after a meal of bread and margarine with cheese or spam. In 1949, a group of younger inmates, returning from the wireless room, where they worked for a ‘large electrical company’ – then as now, prison was a place of cheap labour and corporate profit – barricaded themselves in a cell for 48 hours, their shouts heard all over Holloway. They emerged after hoses were brought and water aimed at the cell.

The original Holloway building was a flamboyant mock-up of Warwick Castle. What better place than a castle for all those women in need of rescue? As a child growing up nearby, Davies ‘would stop to stare at the magical castle jail, with its high turrets and gothic battlements’. ‘There is a story,’ Paul Rock writes in Reconstructing a Women’s Prison (1996), ‘that its façade [was intended] … to mollify suburban neighbours unhappy about the construction of a prison in the midst of their new-built homes.’ When an execution took place, crowds would gather outside the gates, as if the spectacle of the building itself substituted for the unseen scaffold within.

Ken Neale, who helped oversee the partial demolition and rebuilding of Holloway in the 1970s, described the original building as ‘a devilish hole, derelict, run-down, dirty and overcrowded’. Despite its external appearance, the interior of the old prison had been radial, on the lines of Jeremy Bentham’s panopticon, maximising surveillance and control. Now something not so explicitly disciplinarian was needed to suit the liberal discourse of women’s rehabilitation. ‘Most women and girls in custody require some form of medical, psychiatric or remedial treatment,’ James Callaghan stated as home secretary, going on to declare that, enhanced by open green spaces and communal living units as well as new medical and psychiatric facilities, Holloway would become ‘basically a secure hospital’ at the ‘hub of the female penal system’. The reconstruction took place with the prison inmates in situ at a cost of almost £40 million. Edith Thompson’s body was exhumed and taken to Brookwood Cemetery in Surrey, where the golden letters on her gravestone read: ‘Sleep on Beloved. Her death was a legal formality.’

Callaghan’s image of the secure hospital indicated a new form for an old idea: while the male prisoner represented the social problem of aggression, the female prisoner represented the ‘private’ problem of the body or the maladjustment of the mind. He’s bad, she’s mad. Women’s imprisonment troubles deep-rooted ideas of womanhood and so the place of their incarceration is often given a name other than ‘prison’: castle, hospital, immigration removal centre. Joanna Kelley, governor of Holloway between 1959 and 1966, thought it ought to be called Holloway Hospital. The name would have been appropriate enough: by the end of the 1960s, five thousand doses of medicine – Mogadon, Valium, Largactil – were handed out at Holloway every week and more than a thousand medical reports completed annually. By the 1980s, more psychotropic drugs were prescribed there than in any other prison in the country. ‘First they come round and ask you: “Who needs drugs?”’ one former prisoner said of the Holloway psychiatric unit C1, where women were isolated for up to 22 hours a day. ‘And then they ask: “Who wants drugs?”’

Some aspects of life at Holloway did improve after the prison was rebuilt. Lock-up time was later in the day and inmates were allowed to wear their own clothes. There were counselling groups, a swimming pool and gym; a hair salon (‘Hairy Poppins’) was introduced where prisoners could work towards an NVQ. There were fall-offs in the rates of suicide and self-harm. But the prison was still overcrowded, understaffed and unsafe. A new floor-to-ceiling window was repeatedly smashed and finally boarded up. At the beginning of the 1970s there were 800 women in prison nationwide; by 1980 there were 1500. When Greenham Common campaigners broke into Holloway in 1983 to protest against the incarceration of political activists and were arrested for disturbing the peace, their lawyer argued that there was no peace to breach. In 1986, Marc Sancto, a transgender inmate, was found trying to strangle himself in his cell. An hour later he had hanged himself with his cardigan. In 1995, David Ramsbotham, the chief prison inspector, walked out of Holloway halfway through a week-long inspection, appalled by rat infestations, heavy-handed security and bullying. In 2007, Jean Corston’s landmark review of the treatment of women with vulnerabilities in the criminal justice system, undertaken after the deaths of six women at Styal Prison, recommended systemic change. Among her recommendations were a reduction in the use of strip-searching – like force-feeding, a form of state-sanctioned assault – and keeping non-violent offenders out of prison.

*

What’s changed? Nearly four thousand women are currently imprisoned in the UK, most of them for non-violent offences like shoplifting (Davies says one woman was sent to Holloway for jumping out of a taxi without paying). The disproportionate increase in the female prison population over the last couple of decades – between 1995 and 2010, it more than doubled in England and Wales, from 1979 to 4236 – has little to do with changes in female offending, instead reflecting the decision of the courts to recommend custody more frequently for less serious offences. It is difficult therefore to see Holloway’s closure, which was announced by George Osborne in November 2015, as involving a move away from incarceration. It looks more like a large-scale ‘ghosting’, the term used by prisoners to describe their abrupt transfer from one prison to another (one male former prisoner recently told me he had been ghosted 32 times in six and a half years). Every week a group of thirty prisoners, out of the five hundred women who were at Holloway at the time of Osborne’s announcement, was moved out. Most of them were sent to HMP Bronzefield in Middlesex or HMP Downview in Surrey (which wasn’t fully up and running at the time two hundred inmates arrived). The transfer was justified on grounds of cost and counterbalanced by news of expansion elsewhere (nine new prisons). ‘More humane conditions’ were also promised. Holloway had specialist women’s services to which inmates lost access and which other prisons don’t replicate. After campaigns to reclaim the site, it has now been sold to the Peabody Group, which promises to provide six hundred affordable homes.

In 2016, 22 women died in prison, 12 by suicide, the highest number of self-inflicted deaths since 2004. On 11 January that year, three months before Holloway closed, Sarah Reed, a working-class woman of colour with severe mental health problems, killed herself while on remand there awaiting medical reports assessing her fitness to plead. The jury at the inquest wasn’t convinced Reed had intended to take her own life. Her antipsychotic medication had been reduced two months earlier after concerns about its effect on her lungs, but no other medication had been prescribed in its place. Reed was left in a distressed state. A total of 11 visits by her mother, partner and solicitors were cancelled by prison authorities in the three months leading up to her death, and in the few days before it she was locked in a cell in a segregation unit without any heating or hot water.

Davies’s claim that women are often criminalised for a failure to conform to norms of feminine behaviour helps explain the disproportionate imprisonment of black women in UK prisons. They are more likely than white women to be given custodial sentences and less likely to be granted bail. Focus groups containing black, Asian and minority ethnic women interviewed in 2016 by the charities Agenda and Women in Prison reported that they were treated differently by prison staff (‘For a white person it’s mental health … for a black person it’s classed as anger management issues’) and experienced a ‘double disadvantage’ at trial, where they were often faced by juries dominated by older white men. In 2017, the Labour MP David Lammy’s independent review into the treatment of BAME individuals in the criminal justice system found that for every hundred white women sentenced to custody for drug offences, there were 227 black women. For black men the figure is 141 for every hundred white men.

‘Very few female prisoners have ever posed a threat to society; instead most have been victims of circumstance and, in one way or another, victims of men,’ Davies writes. Most women in prison have complex needs and vulnerabilities: 46 per cent are survivors of domestic violence; 53 per cent report having experienced childhood abuse. Nearly a third have a previous psychiatric admission, compared with 10 per cent of male prisoners. The ripple effect of sending women to prison – on children, communities and housing – is greater. ‘Men have women to look after them, to bring in clothes and money, while women don’t,’ the penal reformer Frances Crook writes. But we have to move beyond seeing womanhood as a narrative of victimhood and struggle. The trouble with thinking about women’s prisons as exceptions to the male norm is that it tends to reinforce the association between masculinity and lawlessness, and thereby legitimates the mass incarceration of men. In Are Prisons Obsolete?Angela Davis doesn’t write about ‘women and prisons’ but about the way notions of gender affect systems of state punishment. To see the male prisoner as the norm undermines the abolitionist project; if it is more natural for a man to be imprisoned than a woman, it can follow that it is more natural to imprison a person of colour or a member of another marginalised group. Of course, women don’t have to be presented as victims. They can be outlaws, bad girls and rebels, activists and adulteresses. Davies is keen to include such figures in her history, but the narrative allure of the ‘bad girl’ – representative of some cultural fantasy of female transgression – romanticises the fate of the female prisoner and is a distraction from our collective accountability.