_Loper Bright_'s actual impact on agency deference has hardly been clear. Because while the majority opinion said it was overruling _Chevron_, a conspicuous paragraph in the middle of the Court's analysis seemingly reformulated _Chevron_, just under a new citation in the United States Reports. This paragraph—and other language in the opinion—led to Adrian Vermeule's post: [Chevron By Any Other Name](https://thenewdigest.substack.com/p/chevron-by-any-other-name).

The paragraph from _Loper Bright_ said:

> In a case involving an agency, of course, the statute's meaning may well be that the agency is authorized to exercise a degree of discretion. Congress has often enacted such statutes. For example, some statutes expressly delegate to an agency the authority to give meaning to a particular term. Others empower an agency to prescribe rules to "fill up the details" of a statutory scheme, or to regulate subject to the limits imposed by a term or phrase that leaves agencies with flexibility, such as "appropriate" or "reasonable." When the best reading of a statute is that it delegates discretionary authority to an agency, the role of the reviewing court under the APA is, as always, to independently interpret the statute and effectuate the will of Congress subject to constitutional limits. The court fulfills that role by recognizing constitutional delegations, "fix[ing] the boundaries of [the] delegated authority," H. Monaghan, Marbury and the Administrative State, 83 Colum. L. Rev. 1, 27 (1983), and ensuring the agency has engaged in "reasoned decisionmaking" within those boundaries. By doing so, a court upholds the traditional conception of the judicial function that the APA adopts.

(Citation modified.) So _Loper Bright_ overruled the part of the _Chevron_ framework that rested on statutory ambiguity as a trigger to defer to agency interpretations. But _Loper Bright_ did not overrule agency deference _in toto_.

For that reason, when a case that was decided before _Loper Bright_ gets re-litigated on the same facts and issues, it's worth analyzing. That happened in _[Hospital Menonita de Guayama, Inc. v. National Labor Relations Board](https://media.cadc.uscourts.gov/opinions/docs/2026/07/22-1163-2184163.pdf)_ (D.C. Cir., No. 22-1163, July 21, 2026).
### The Majority
The National Labor Relations Board adopted a rule requiring new owners of a business to negotiate with the incumbent union for up to one year, whether or not a majority of the employees supported that union. The Hospital challenged this "so-called 'successor bar'" as inconsistent with the National Labor Relations Act. On the initial round of litigation, the D.C. Circuit implicitly applied _Chevron_ deference and upheld the rule because the Court found that the rule was a reasonable policymaking decision. But the case was appealed and the Supreme Court granted certiorari, vacated the ruling, and remanded it "for further consideration in light of" _Loper Bright_.

In the latest opinion, the D.C. Circuit now holds that the rule violates the National Labor Relations Act.

The court:

> Under the successor bar, when a new employer acquires a business, an incumbent union is protected from any representation challenge for up to one year. The bar thus compels the successor employer to recognize and bargain with the incumbent union, even if it lacks majority support. That rule is inconsistent with the Act's protection of employee freedom of choice and representation by majority rule. The Board therefore contravened the Act when it refused to consider the Hospital's evidence challenging the Union's majority status and ordered the Hospital to collectively bargain with the Union.

The court reasoned that, aside from a one year period after a certified election, Congress did not provide other restrictions on when a union's majority status can be challenged. Applying a potentially helpful canon to post-_Loper Bright_ delegations, the court explained, "When Congress establishes a legal requirement and provides a single exception, the most natural interpretation is that an agency cannot create additional exceptions to the statutory rule."
### The Dissent
But the dissent argues that there was nothing flawed with the original opinion because the panel did not rely on _Chevron_'s premise that statutory ambiguity itself creates a delegation to the agency. (Which, as discussed above, was what _Loper Bright_ expressly overrules.) Rather, the dissent contextualizes the original opinion as relying on the NLRA's overarching policy of entrusting to the NLRB substantial policymaking discretion.

The dissent cites the panel opinion explaining as much:

> "Because 'the NLRB has the primary responsibility for developing and applying national labor policy,' the Supreme Court has required that reviewing courts 'accord[] Board rules considerable deference.'" _Hospital Menonita I_, 94 F.4th at 14 (alteration in original) (quoting _Curtin Matheson_, 494 U.S. at 786).

In support of that argument, the dissent cites three post-_Chevron_ cases that interpreted challenges to NLRB's rule and upheld them all, not on _Chevron_ deference grounds per se, but because "[i]f the Board adopts a rule that is rational and consistent with the Act . . . then the rule is entitled to deference from the courts."

The dissent then interprets the passages in _Loper Bright_ that have created confusion about the scope of agency deference. It explains that _Loper Bright_ "preserved the distinct principle that Congress may confer discretionary authority on agencies in particular statutory schemed [sic]. The proper inquiry is not whether the statute is ambiguous, but whether 'the best reading of a statute is that it delegates discretionary authority to an agency.'" This was essentially Vermeule's point. He wrote, "What this means is that many, most or even all of the cases that were previously called '_Chevron_ deference' cases can now be relabeled as '_Loper Bright_ delegation' cases."
### *Loper Bright*'s Impact
I agree with both opinions. The dissent properly states the rules from _Loper Bright_: statutory ambiguity does not call for agency deference, but nonetheless the best meaning of the statute can be one that requires the agency to be given deference. The problem for the dissent is with the rest of the _Loper Bright_ opinion.

Specifically, the Chief Justice charges lower courts to police the outer bounds of Congress's delegation to agencies. And it is hard to reconcile a rule from the NLRB that conflicted with the free-choice guarantee of section 7 and the majority-rule principle of section 9(a) of the NLRA. Therefore, the delegation is contrary to law because it expressly contradicts the statutory scheme.

And this is not a case involving a statutory scheme that expressly delegates to the agency some reasonable policy discretion, like what Justice Kagan hypothesized in her *Loper Bright* dissent:

> Congress directed the Department of the Interior and the Federal Aviation Administration to reduce noise from aircraft flying over Grand Canyon National Park—specifically, to 'provide for substantial restoration of the natural quiet.' How much noise is consistent with 'the natural quiet'? And how much of the park, for how many hours a day, must be that quiet for the 'substantial restoration' requirement to be met?

That example is more along the lines of the outcome in *Relentless* (the companion case in *Loper Bright* and the name that should have been used as the caption) after _Loper Bright_ was decided, which on remand came out in favor of the government again because the court held that the best reading of the statute was that Congress gave the agency the ability to exercise discretion.

Nonetheless, this D.C. Circuit opinion is still fascinating because it is one of many that will come in the long line of cases exploring what _Loper Bright_ actually means for agency delegation.

Perhaps this also shows that _Loper Bright_ is not _Chevron_ by any other name. But it's hard to draw that conclusion based on one case, or on one involving a statutory scheme like the one at-issue in *Hospital*. So to really understand what _Loper Bright_ has done, it would be interesting to find a case with the same procedural posture—initially decided before _Loper Bright_ and then GVR'd in light thereof—but with broader statutory language that expressly delegates to the agency discretion.

D.C. Circuit Case Before and After Loper Bright


The following remarks made at oral argument in *[Free Enterprise Fund v. Public Accounting Oversight Board](https://www.supremecourt.gov/opinions/25pdf/25-332_qn12.pdf)* seemed timely given the nature of Chief Justice Roberts' majority opinion in [*Trump v. Slaughter*](https://www.supremecourt.gov/opinions/25pdf/25-332_qn12.pdf):

> **Solicitor General Elena Kagan:** I understand the temptation to say something like, well, we don't really much like Humphrey's Executor, but we are stuck with it, but not an inch further.
> 
> **Chief Justice Roberts:** I didn't say anything bad about Humphrey's Executor.
> 
> [Laughter.]
> 
> **Justice Scalia:** I did, I did. We did overrule it, by the way, in Morrison, didn't we?

Chief Justice Roberts has now said something bad of Humphrey's Executor: "If anything is left of Humphrey's Executor, we overrule it."






Chief Justice Roberts on Humphrey's Executor in 2009 and 2026

I read a few opinions by Justice Mosk this week, which had made me curious to learn more 
about who he was, what he did, and how he lived.

I came across [this wonderful recorded meeting](https://www.cschs.org/history/california-supreme-court-justices/stanley-mosk/) of the Justices of the California Supreme Court to honor Justice Mosk after he passed away. His son, his wife, and various co-workers spoke about Mosk’s life, judicial philosophy, and who he was.

I was captivated by it all. Here are some highlights:

I loved this quote that Mosk’s son shared:

> Felix Frankfurter once wrote to a young boy interested in the law that, “No one can be a truly competent lawyer unless he is a cultivated man.” He went on, “Stock your mind with the deposit of much good reading. Widen and deepen your feelings by experiencing vicariously as much as possible the wonderful mysteries of the universe. . . .” Stanley Mosk, throughout his life, did what Mr. Justice Frankfurter recommended.

If I can aspire to anything in my legal career, I hope I can stock my “mind with the deposit of much good reading” and “widen and deepen [my] feelings by experiencing vicariously as much as possible he wonderful mysteries of the universe.” [Read Frankfurter’s full letter here](https://dltnio.pika.page/posts/felix-frankfurters-letter-of-advice-to-a-young-person-interested-in-going-into-the-law).

And this classic from George Bernard Shaw:

> As George Bernard Shaw wrote: “The reasonable man adapts himself to the world. The unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.”

Mosk’s eminent, learned mind is evident from this anecdote:

> We [Mosk, Bernie Witkin, and Joseph Cotchett] had met at about 11:30 and the three of us went to lunch. We always laughed because Bernie just used to tell jokes until you couldn’t stop him. We got on the subject of the United States Supreme Court in the 1930’s and the court-packing plan of Franklin Delano Roosevelt; and at this point Stanley Mosk took over and for the next hour recited every single opinion with full citation, almost every page, I’m sure, and the facts about the cases that reversed Roosevelt’s policies in the ‘30s. As he went on and on, I was just in awe. And the most important aspect of it was Bernie sat there without saying a word, which was truly remarkable for Bernie Witkin. Justice Mosk recited every piece of legislation and every case that dealt with it. When it was all over, Bernie Witkin looked over at him and said, “Stanley, do you know the Rule in Shelley’s Case?” I’m pleased to tell you, he said yes and recited it! Thank you very much.

And this, from Mosk’s research attorney, Dennis Peter Maio:

> He gave as much attention to the small issues as to the great, for he believed and he acted on the belief that the law was a practical human creation, a mechanism that enabled all sorts of people with all sorts of values and goals to make communal life a going concern, a successful going concern. He was pragmatic, as others have said. But he was pragmatic out of principle. Many of Justice Mosk’s deeds and words at the court were similarly undramatic. To us on his staff, he was a quiet man, even though he had much to say. He was not at all self-important, even though he played a role that was prominent. He generally asked us for nothing, except whatever assistance we might be able to furnish, as in each case he attempted to get to the right result. Many a time, he got to a right result that was not to his liking — every time when it involved affirmance of a judgment of death, for, as all know, he was personally opposed to capital punishment. He would not change the result. Rather, he would pause, grimace, and say a word or two and then pass on to the next matter.
> 
> Once, years ago, in a case I still remember clearly, I recommended reversal of a judgment of death. He nonetheless rejected my recommendation, because the result, as I soon had to admit, was wrong. He knew what he liked and what he did not. But he believed that his job was to try to do what was right. I cannot say that he ever failed.
> 
> As I close, let me recall a particular memory of Justice Mosk, or rather a particular group of memories. Nine times in the course of the past decade, the moment for execution of a judgment of death would approach. Nine times, he would be found in his chambers, reviewing a last-minute habeas corpus petition if one had been filed, doing other work if one had not. Nine times, as the appointed hour drew near, he would assemble with other members of the court. Nine times, after what had to be done was done, he would leave and make his way home. Never did he say more than a few words. His face, however, always revealed a sad recognition that he would not see this ritual end in his lifetime. More important, his presence always demonstrated a full and open commitment to the law, not only when it guided him where he would go, but also, and perhaps especially, when it took him where he would not.

And, finally, his wife shares a uniquely personal portrait of the late Justice:

> In the early morning I would often hear Stanley jogging or two-stepping to his own tune. When he saw me watching him exercise, he would call out: “Kiddo, I’m hungry!” I took this as a signal to prepare breakfast. He loved food–any kind of food–and was very tolerant of my limited cooking skills: Even when I burned his toast and eggs, he would exclaim, “Delicious! What a meal!”
> 
> Stanley was always careful about his appearance–not because of vanity, but because he respected his position in public life. When he was ready to go to work each day–always well groomed and wearing a nice suit–he would turn around for my inspection, and I would say: “Okay. Okay. Today you’re even more beautiful than I am.” Then his face would break into a radiant smile and he would leave the house with his usual parting remark: “Well, I’m off to make a living for us.”

What kept Justice Mosk going for 37 years? Simple. “He loved the law.”

> What drove Stanley to do what he did so brilliantly, day after day, case after case, for 37 years? A short time before his passing, when we were in Los Angeles for a court session, he came home after a tiring day on the bench and mused how much he loved the law–but told me it would be the last session he would attend.

I’m excited to continue reading cases penned by Mosk, and proud to be living in a State that recognized Mosk’s genius, and put him where he needed to be.

Justice Stanley Mosk


When you're a huge nerd like me, you not only read court opinions for school, but you also get really excited to read those court opinions when it's written by a judge that you like to read. There are a few judges I *love* to read, even if I don't agree with everything they write. Judge Posner from the 7th Circuit Court of Appeals is one of those. The latest opinion we read from him [opens with](https://law.justia.com/cases/federal/appellate-courts/F3/17/209/566491/), "Richard Welge, forty-something but young in spirit, loves to sprinkle peanuts on his ice cream sundaes." And continues later:

> Even so, the defendants point out, it is always possible that the jar was damaged while it was sitting unattended on the top of the refrigerator, in which event they are not responsible. Only if it had been securely under lock and key when not being used could the plaintiff and Karen Godfrey be certain that nothing happened to damage it after she brought it home. That is true--there are no metaphysical certainties--but it leads nowhere. Elves may have played ninepins with the jar of peanuts while Welge and Godfrey were sleeping; but elves could remove a jar of peanuts from a locked cupboard. The plaintiff in a products liability suit is not required to exclude every possibility, however fantastic or remote, that the defect which led to the accident was caused by someone other than one of the defendants.

I mean, come on. Inject this into my veins.

Another fascinating thing about reading opinions while studying how one area of law has developed is seeing how judge's concurring and dissenting opinions in one case end up being the rationale for the majority in a later case. [Justice William Brennan ](https://en.wikipedia.org/wiki/William_J._Brennan_Jr.) of the Supreme Court was notorious for this in personal jurisdiction cases.

Here's a great example from my readings this week.

We're learning about strict products liability law, and the big crux of this area of tort law is that manufacturers and distributers don't have to be negligent (i.e. do anything "wrong" necessarily) for someone to recover against them. They are held strictly liable.

In 1944, strict products liability wasn't really a thing, but a justice on the California Supreme Court *really* wanted it to be a thing. In *Escola v. Coco Cola Bottling Co.*, [Justice Rodger Traynor](https://en.wikipedia.org/wiki/Roger_J._Traynor) wrote a concurring opinion advocating for strict products liability. He wrote:

> In my opinion, it should now be recognized that a manufacturer incurs an absolute liability when an article that he has placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings.

And here Justice Traynor is again in 1963, almost *twenty years later*, writing the same thing in the majority opinion in *Greenman v. Yuba Power Products, Inc.*, thereby creating strict products liability for tort actions in California:

> A manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.

And just like that, strict products liability is birthed into existence. I love finding stuff like this and connecting the dots.

Concurring opinions


One of the reasons I went to law school was because of Oliver Wendell Holmes, Jr. It’s not like a had a conversation with him...obviously. He’s long dead. But his works, ideas, and life are not!

I read [Oliver Wendell Holmes: A Life in War Law and Ideas](https://www.dltn.io/posts/oliver-wendell-holmes-a-life-stephen-budiansky) a while ago, and the passion and zest Holmes had for the law, logical thinking, and clear writing was inspirational to me. I was fascinated with his work, I thought maybe I could *do* what he did. (Be a lawyer, that is.)

I went into school liking the book so much that Holmes felt like my “mentor” or at least a big inspiration for why I was there, and that was special. I held him in high regard.

So I was ecstatic when we were assigned to read an excerpt in Torts from his book, *The Common Law*. I was even more excited when a case he wrote the opinion for was in our torts book. But...then I read the case, and we talked about it in class, and my professor kind of dissed on him. We talked about it afterwards in his office hours, and he said from the opinion, it was clear that Holmes had *never* driven a car—which he probably hadn’t—yet was creating a rule of law that required people who came to a railroad track crossing to get out of their car and look to make sure no train was coming before they crossed in their car. That’s...ridiculous.

After our conversation, I looked in the biography to see what the author said about that opinion, and I now agree. Here’s what the author wrote:

> His zeal to write into the law his draconian views about risk led him to render one of his other most notoriously bad decisions on the Supreme Court...Holmes held that a railroad was not at fault in a fatal grade-crossing accident where the view of the tracks was obstructed to an approaching driver. Showing if nothing else that he had never learned to drive himself, Holmes ruled as a matter of law that it was a driver's duty to stop, get out of his car, and look down the tracks to see if a train was coming.
>
> [...] 
>
> [Louis] Brandeis thought the Court had had no business taking on these cases in the first place and that Holmes had pressed his colleagues to do so mainly because he was "incorrigible when there is an opportunity of curbing the power and province of a jury." 
> 
> [...] 
>  
> While in so many areas of the law Holmes would prove decades ahead of his time, his Darwinian attitudes toward injury cases seemed at times almost a throwback to the nineteenth century—holding firm to a conception of tort law that was rapidly being swept aside by the very kind of nuanced balancing tests and apportionment of responsibility between the parties that he otherwise so zealously advanced.

I thought this was really interesting because it shows:

1. How not-closely I read biographies. I read parts closely but other parts not, but I don’t remember any mention of this case in the book. (But I did apparently think it was ridiculous when I read it because I wrote marginalia that said, “This is ridiculous lol”.) And;\

2. How not everyone we admire from history was “perfect.” I struggle with this. After I read a book about Truman or Lincoln or Adams or Jefferson, I’m enthralled with who they were (or, at least who the book portrayed them to be), that I usually remember all of the good quotes and cool things that they did and forget about the not-so-good things they did decisions they made. I don’t think there’s anything wrong about admiring people from history, but I’m reminded of being a bit more cautious in the people I choose to model my life and career after.

This post didn’t really have a point, but I was excited to see how my love of learning and history that I’ve poured myself into the last three years is finally converging into something useful, I guess? It’s fun to see the people and ideas and history I’ve learned about appear in contexts other than a book I’m reading on my back porch.


Justice Holmes

Oliver Wendell Holmes Jr. believed in hard work and knowledge. He remarked, “most things in this world, half their terrors vanish when you walk up and tackle them.” The anxious thoughts about what “might” happen were often worse than the actual situation. Once “you lay hold of the lion’s skin it comes off and the same old donkey is underneath.”

As he edged toward turning ninety, he wrote:

> 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. One should have the same courage for failure that many have for death.

When Chief Justice Melville Fuller delayed in getting the cases assigned to Holmes over to him, Holmes wrote him a note:

> Will you let me know as soon as convenient the cases you assign to me. I worry until I know. Nil actum reputans dum quid superesset agendum.

The Latin was a quote from Lucanus’s poem about Caesar: “He believed nothing done, so long as anything remained undone.”

Holmes had an unbelievable work ethic. In total, he wrote 873 opinions, a Supreme Court record. “He brought that same zest for duty to everything,” Budiansky wrote. “In 1865, at age twenty-one, he began keeping a list of every book he read, noting them down in tiny handwriting in a small leather…book, known to his secretaries as the ‘Black Book.’ By the time of his death the list exceeded four thousand, which worked out to more than a book a week for seventy years. The range was extraordinary: law, philosophy, sociology, literature, religion, history, economics, murder mysteries, poetry, science.”

---

In his opinions, Holmes rarely used legal jargon. The quality of his prose demonstrated clear thinking. Learned Hand praised in Holmes’s opinions his “deadly eye” for “question-begging words” that disguised shallow thinking. “To Holmes, the act of writing was above all the act of thinking. Finding the right words was not rhetorical ornamentation: it was the very essence of his work of thinking though complex legal jargon.”

Note: What people mean by writing is thinking. It forces you to come up with words that describe what’s in your head. The mismatch between the words you use and the thoughts in your head is the actual process of your thinking being refined. You’re being forced to put a thought which contains many words and many meanings into a few words that each just have one meaning. That is thinking.

---

Boston in the 1800s was a town full of pompous, educated men and women seeking to make their mark on the world through their words and books. Pretty much everyone was Unitarian. “Unitarianisms’s fundamental tenet was that God had given man a rational nature and a moral conscience, and expected him to use them. Salvation was no longer to be found in outward conformity to rigid doctrine or unquestioning obedience to an unknowable God, but lay rather within each man’s own conscience.”

This philosophy “now channeled into a faith that made self-improvement, the cultivation of virtue, and social conscience the ultimate expression of God’s will.”

Edward Everett Hale put it best: “There was the real impression that the kingdom of heaven was to be brought in…if we only knew enough”

This was the culture Oliver Wendell Holmes, Jr. was born into, and came to love.

---

From a young age, Holmes showed an act for words and conversing. His report card at age six said, “Talk’s too much.” His brother Edward explained, “Wendell ends every sentence with a ‘but’ so as to hold the floor till he can think of something else to say.”

---

Holmes understood the importance of focus. He wrote in a letter about his father:

> If he [his father] had the patience to concentrate all his energy on a single subject, which perhaps is saying if he had been a different man, he would have been less popular, but he might have produced a great work. I often am struck by his insight in things that he lightly touched. But, as I said, **it is the last five percent that makes the difference between the great and the clever**.

---

As a boy, Holmes had a “futile shrinking from new things” that kept him from learning to ride or drive a horse or ice skate. But this was not a “physical timidity; it was rather that he already had a sense of what it took to truly master a subject, and an inkling of the dissatisfactions of half-knowledge.”

---

Holmes did not value academics. In 1913, he warned Felix Frankfurter that academic life is…

> a withdrawl from the fight in order to utter smart things that cost you nothing except thinking them from a cloister…Business in the world is unhappy, often seems mean, and always challenges your power to idealize the brute fact but it hardens the fibre and I think is likely to make more of a man of one who turns it to success

---

For Holmes, the war taught him “early on to face with courage and calmness the inevitable hardships of life.” In 1917, he told Harold Laski “I am converting misfortune into a source of satisfaction.” The author explains, “His limitless capacity for work was undoubtedly an emotional escape but it was also a need that he shared with many who had been through the intense experiences of war: civilian life just did not seem that exciting by comparison.” “Repose,” Holmes wrote, “is not the destiny of man.” **“Life is a struggle,” the author observes, “and it is the struggle that gives it meaning. The only thing to do was to give one’s all, and leave the consequences to fate.”**

---

In a great quote about opportunity costs, Holmes said, “Remember, my friend, that every good costs something. Don’t forget that to have anything means to go without something else. Even to be a person, to be _this_ means to be _not that_.”

---

During his first year of law school, a professor said he “had never known of anyone in the law who studied anything like as hard as Wendell.” “From the start,” the author wrote, “he took heart in the belief that mastery of a subject, and thorough professional expertise, was the only way to accomplish anything significant in life. A year and a half after receiving his degree, and still thoroughly immersed in a now self-directed program of voluminous readings in the law, he wrote William James of his ‘ever increasing conviction that law as well as any other series of facts in this world may be approached in the interests of science and may be studied, yes, and practiced, with the preservation of one’s ideals. I should even say that they grew robust under the regimen.'”

Holmes’ father’s dilettantism worked out well for Holmes, because it showed him what _not_ to do. He wrote:

> Since I wrote in December I have worked at nothing but the law. Philosophy has hibernated in torpid slumber, and I have lain “slutishly soaking and gurgling in the devil’s pickle,” as Carlye says. It has been necessary,—if a man chooses a profession he cannot forever content himself in picking out the plums with fastidious dilettantism and give the rest of the loaf to the poor, but must easy his way manfully through crust and crumb—soft, unpleasant inner parts which, within one, swell, causing discomfort in the bowels.

---

Holmes became friends with both William and Henry James. William, while Holmes and he were close, was in a deep depression about the nature of the universe. In a world without a God, why did anything matter, James explained. Holmes, ever the realist, didn’t understand. He advised William (with words that a lot of us should take into account today re: politics and the “world” and everyone having an opinion on everything): “It seems to me that the only promising activity is to make _my_ universe coherent and livable, not to babble about _the_ universe.” This quote revealed Holmes’ philosophy about life: it doesn’t care about you, so get on with it and do your duty! (Or, rather, that’s my interpretation.)

---

One night after working late in the law library, Holmes and a younger lawyer, George Upham, walked home together. Recounting their conversation sixty years later, Upham said Holmes:

> told me he had a theory that anyone could accomplish anything he wished, if only he wished it hard enough, continuously, morning, noon, and night, and perhaps subconsciously while sleeping

A half century after that conversation, Holmes told John Wu that to achieve anything of importance “takes time, the capacity to want something fiercely and want it all the time, and sticking to the rugged course.”

Holmes followed his own advice.

While editing a new edition of Kent’s Commentaries, Holmes became utterly absorbed in the work. “I have as you know given up all my time to Kent’s Commentaries and during the past year especially have hardly touched any other business,” he wrote in July 1872.

He kept his manuscript in a green back, and he took it everywhere with him. After dining one night with Henry James’s mother, she wrote a letter to Henry:

> Wendell Holmes dined with us a few days ago. His whole life, soul and body, is utterly absorbed in his _last_ work upon his Kent. He carries about his manuscript in his green bag and never loses sight of it for a moment. He started to go to Will’s room to wash his hands, but came back for his bag, and when we went to dinner, Will said, “Don’t you want to take your bag with you?” He said, “Yes, I always do so at home.”

This “green bag” was so precious to him that, once a month, he conducted fire drills with the servants and staff of his house and ensured they knew their first mission if flames were to ensue: rescue the green bag.

Chief Justice Charles Evan Hughes thought Holmes’ work on Kent is what allowed him to draft opinions faster than everyone else. The time Holmes spent in total immersion of the law “had given him an unusual and complete mastery of common law decisions and history. The effect of this in his habit as [a] judge was that, where others would be compelled to devote an enormous amount of time to the rediscovery of law, Holmes needed to make no re-examination—the law was at his fingertips.”

This is a great example of Dead Time and Alive Time.

The time in-between jobs he studied a ton, so that when he finally did get a court appointment, he was better prepared and smarter than everyone else. Such is how one should spend their days “waiting.” [[Notes/Active Patience|Active Patience]]

The author writes, “Success to Holmes above all meant accomplishing something original and of intellectual merit.” I relate to that strongly.

---

On the bench, Holmes had little patience for lawyers, remarking that they take 5 to ten minutes to say things that could easily be said in one. To pass the time, he wrote letters while lawyers were presenting their cases. This gave him the reputation of attentiveness, because, naturally, people thought he was taking notes on the case.

---

On writing, Holmes said, “One has to strike the jugular and let the rest go.”