Holmes, Oliver Wendell
Holmes, Oliver Wendell
The career of Oliver Wendell Holmes, Jr., as a judge spanned half a century. Yet quite apart from this long and distinguished service on the highest courts of his state and nation, his pervasive influence as historian and philosopher of the law is bound to assure him a permanent place in American jurisprudence. It is his 30 notable years as an associate justice of the United States Supreme Court, however, that no doubt constitute his special claim to importance and fame as a jurist. In so many ways a true product of New England’s intel lectual aristocracy, in time he came to capture the popular imagination of the whole country.
His father was Dr. Oliver Wendell Holmes, whose work as poet, essayist, and physician was in itself a significant chapter in the flowering of America’s cultural and scientific maturity. The future judge was born in Boston on March 8, 1841, and died in Washington, D.C., on March 6, 1935. In July 1861, shortly after graduating from Harvard College, he enlisted with the Twentieth Massachusetts Volunteers and was mustered out three years later with the rank of captain. Holmes was wounded three times—at Bull’s Bluff, at Antietam, and at Marye’s Hill, Fredericksburg. Both his philosophy and his rhetoric were destined to reflect his Civil War experience. That experience may help explain “the inner resolution he felt bound to achieve …between skepticism and faith,” as Paul A. Freund has phrased it (see the foreword in Frankfurter 1938).
Once out of uniform, Holmes resolved his doubts concerning the choice of a life’s calling—philos ophy versus law—by enrolling at the Harvard Law School, where he studied between 1864 and 1866. “A man may live greatly in the law as well as else where,” he was to say many years later in “The Profession of the Law” (1962, p. 29).
It is significant that almost from the start of his law practice, scholarly interests claimed Holmes’s chief attention. As Mark DeWolfe Howe has noted, “the young lawyer’s affiliations of mind and sympathy had early shown themselves to be more with the Brahmins than with the merchants of New England” (Howe 1957-1963, vol. 2, p. 2). He served as editor of the American Law Review from 1870 to 1873 and edited the twelfth edition of James Kent’s Commentaries on American Law. But it was the publication of his book The Common Law in 1881 that doubtless established his reputation as a legal scholar, leading in the following year to his appointment as Feld professor of law at Harvard and shortly thereafter to his selection as an associate justice of the Massachusetts Supreme Judicial Court. The book is permeated by all of the major strains of thought that have come to be identified with Holmes’s outlook and method both as scholar and judge: his deep sense of history, his rejection of the rigidities of legal logic, his aversion to the confusion between law and morals, and his awareness of the psychological roots of judicial decisions. Some of the sentences of the opening paragraph have become famous in themselves:
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. The law embodies the story of a nation’s development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ([1881] 1963, p. 7)
Holmes served on the Massachusetts bench for 20 years, 1882 to 1902, the last three as chief justice. Most of his opinions dealt with the traditional concerns of common law litigation—torts, contracts, and crimes—but there were cases in which he had the opportunity to discuss broader issues of public policy and constitutional law. When that happened he usually gave expression to ideas that can also be found in his legal essays; they foreshadowed the dominant themes of his philosophy as a Supreme Court justice. He insisted that the judiciary has but a limited role to play in the process of government and that the judge must allow ample scope to the provisions of constitutions and the discretion of legislators.
It was Holmes’s dissenting opinions in labor cases, especially those in which he vindicated the rights to peaceful picketing and the closed shop, that made some circles think of him as a radical. Yet these seemingly pro-labor opinions were the result of his basically conservative slant—what he called “the battle of trade” or the “free struggle for life.” If the pursuit of economic advantage was leading businessmen to combine, he saw no reason for keeping workers from cooperating with each other in promoting their interests.
Judging from the correspondence between Henry Cabot Lodge and Theodore Roosevelt, it may have been Holmes’s views on the labor problem that induced Roosevelt to name him to the Supreme Court in 1902. Ironically, when Holmes, much to Roose velt’s displeasure, dissented only a year later from the Court’s opinion upholding the dissolution of the Northern Securities Company, he invoked the same general economic beliefs implicit in his Mas sachusetts labor opinions.
Although the number of occasions on which Holmes differed from Supreme Court majorities was comparatively small, he came to be regarded as the “great dissenter” on the Court. It was largely these dissenting opinions that made the public think of him as a liberal judge, not realizing that in private he was opposed to many of the reforms that, as a judge, he was seeking to save (Biddle 1961, p. 68).
Holmes’s reputation as a liberal no doubt originated with his celebrated 1905 dissent in Locher v. New York—an opinion which Roscoe Pound char acterized as the “best exposition” of sociological jurisprudence. In eloquent and increasingly sharp language, the justice continued to protest against the tendency of many of his colleagues to annul labor and social welfare laws because they disapproved of the policies these laws embodied. He furnished one of the best clues to the reason why he often dissented on such questions in a case in which a majority of the Supreme Court had struck down an Arizona law forbidding the use of injunctions in labor disputes. “There is nothing I more deprecate,” Holmes confessed in 1921, “than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect” (Truax v. Corrigan, 257 U.S. 312, 344).
There is still another reason for the popular image of Holmes as a liberal dissenter. In a number of free speech cases he voted against the government and spoke out in defense of the individual’s right of free expression. But he had also delivered the Court’s opinions in several cases upholding convictions under the Espionage Act of 1917, including the conviction of Eugene V. Debs, the militant head of the Socialist party. It was in the first of these wartime cases—Schenck v. United States— that he set forth his celebrated formula of “clear and present danger.” “The question in every case,” he wrote, “is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent” (249 U.S. 47, 52, 1919).
When Holmes became convinced—possibly through the influence of his frequent companion in dissent, Justice Louis D. Brandeis—that the objectionable speech or publication was not likely to bring about “a clear and present danger,” he did not hesitate to register his disagreement. His opinions in Abrams v. United States and Gitlow v. New York (268 U.S. 652, 1925) are perhaps most notable. In the Abrams dissent, Holmes said:
But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations 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. (Abrams v. United States, 250 U.S. 616, 630, 1919)
What Justice Frankfurter once said about these dissents is a good measure of Holmes’s lasting contribution as a constitutional judge: “…some of his weightiest utterances are dissenting opinions —but they are dissents that record prophecy and shape history” (Mr. Justice Holmes [1916-1930] 1931, p. 116).
Samuel J. Konefsky
[For the historical context of Holmes’s work, see the biographies ofBrandeis; Cardozo; Pound.]
WORKS BY HOLMES
(1861–1864) 1946 Touched With Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861–1864.Edited by Mark DeWolfe Howe. Cambridge, Mass.: Harvard Univ. Press.
(1861–1932) 1954 The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions. Selected and edited with introduction and commentary by Max Lerner. New York: Modern Library.
(1870–1935) 1936 Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers. Edited and annotated by Harry C. Shriver, with an introduction by Harlan Fiske Stone. New York: Central.
(1874–1932) 1961 Holmes, Oliver wendell; and Pollock, FrederickHolmes-Pollock Letters: The Cor respondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932. 2d ed., 2 vols. Edited by Mark DeWolfe Howe. Cambridge, Mass..- Belknap Press.
(1881) 1963 The Common Law. Cambridge, Mass.: Harvard Univ. Press.
(1883–1902) 1940 The Judicial Opinions of Oliver Wendell Holmes. Edited by Harry C. Shriver. Buffalo, N.Y.: Dennis.
(1885–1918) 1952 Collected Legal Papers. Edited by Harold J. Laski. New York: Smith.
(1902–1928) 1929 The Dissenting Opinions of Mr. Justice Holmes. Edited by Alfred Lief. New York: Vanguard.
(1903–1930) 1931 Representative Opinions of Mr. Justice Holmes. Edited by Alfred Lief. New York: Vanguard.
(1903–1935) 1964 Holmes, Oliver Wendell; and Ein stein, LewisThe Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein. 1903–1935. Edited by James Bishop Peabody. New York: St. Martins.
(1916–1935) 1953 Holmes, Oliver Wendell; and Laski, harold J. Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916–1935. Edited by Mark DeWolfe Howe, with a foreword by Felix Frankfurter. 2 vols. Cambridge, Mass.: Harvard Univ. Press.
1948 Holmes, Oliver wendell; and Cohen, morris R. Holmes-Cohen Correspondence. Journal of the History of Ideas 9:3–52.
1962 Occasional Speeches. Compiled by Mark DeWolfe Howe. Cambridge, Mass.: Belknap Press.
WORKS ABOUT HOLMES
Bent, silas 1932 Justice Oliver Wendell Holmes: A Biography. New York: Vanguard.
Biddle, francis B. 1942 Mr. Justice Holmes. New York: Scribner.
Biddle, francis B. 1961 Justice Holmes, Natural Law and the Supreme Court. New York: Macmillan.
Bowen, catherine drinker 1944 Yankee From Olympus: Justice Holmes and His Family. Boston: Little.
Frankfurter, Felix (1938) 1961 Mr. Justice Holmes and the Supreme Court. 2d ed. Foreword by Paul A. Freund. Cambridge, Mass.: Belknap Press.
Howe, mark dewolfe 1957-1963 Justice Oliver Wendell Holmes. 2 vols. Cambridge, Mass.: Belknap Press. ? Volume 1: The Shaping Years, 1841–1870. Volume 2: The Proving Years, 1870–1882.
Konefsky, samuel J. 1956 The Legacy of Holmes and Brandeis: A Study in the Influence of Ideas. New York: Macmillan.
Mr. Justice Holmes: Contributions by Benjamin N. Car-dozo, Morris R. Cohen, John Dewey…. (1916–1930) 1931 Edited by Felix Frankfurter. New York: Coward-McCann.