Abstract
Apparent contradictions in Oliver Wendell Holmes’ jurisprudence have caused our image of him to remain bifurcated. The deferential Holmes of Lochner has not been reconciled with the Holmes who famously defended the speech of dissenting minorities in Abrams and Gitlow. This essay uses Holmes’ speech cases as a lens through which to explore this apparent dichotomy. First, it argues that Holmes may be better understood by deemphasizing the importance of judicial “tests” in his jurisprudence and focusing instead on his pragmatic common law approach. Second, it shows that the Abrams dissent sought to square Holmes’ deference with a defense of speech by distinguishing between deference to the legislature and deference to the executive.