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Bad Man from Olympus

Justice Oliver Wendell Holmes: Law and the Inner Self

by G. Edward White
Oxford University Press, 628 pp., $37.50

The Collected Works of Justice Holmes: Complete Public Writings and Selected Judicial Opinions of Oliver Wendell Holmes

edited by Sheldon M. Novick
University of Chicago Press, three volumes: 1398 pp., $175.00

The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.

edited and with an introduction by Richard A. Posner
University of Chicago Press, 342 pp., $24.95

As a child, Justice Oliver Wendell Holmes, Jr. (1841-1935), heard his grandmother tell of seeing British troops leave Boston during the Revolution, and today men who were his law clerks are still alive. The son of one of the most famous American writers, he grew up reading Emerson’s essays right off the press and late in life commented on T.S. Eliot, Proust, and Hemingway. In his twenties he fought in the Civil War, in his thirties he wrote perhaps the most important American book on law, in his sixties he was chief justice of Massachusetts, and he served on the United States Supreme Court into the Great Depression.

Holmes was a particularly striking figure in old age, tall and erect, with a full head of white hair, huge moustaches, craggy features, and piercing blue eyes. His appearance and the historical fascination of his heritage and his long life, when added to his impressive accomplishments, made him legendary before he died. “The great overlord of the law and its philosophy,” said Benjamin Cardozo on Holmes’s ninetieth birthday, “the greatest of our age in the domain of jurisprudence and one of the greatest of the ages.” Walter Lippmann wrote that he “wore his wisdom like a gorgeous plume,” and Felix Frankfurter added that his writings belonged in “the slender volume of the literature of all time.” A journalist called him “a Yankee, strayed from Olympus,” and the phrase caught on.1 President Franklin Roosevelt called at his house for his ninety-second birthday, and stood in the rain by his graveside when he was buried at Arlington National Cemetery.

The Holmes legend was partly an accident, but his influence has endured, and the meaning and value of his life and work are still debated. G. Edward White’s is only the latest of four biographies published in the last six years.2 One of the most important contemporary American jurists, Judge Richard Posner, has edited a new anthology of his work, and introduced it with an essay that shows intimate knowledge of its subject. Now Sheldon Novick’s new scholarly edition of Holmes’s nonjudicial writings has arrived. We might call this a revival, except that fascination with Holmes has never waned.

One reason is that he is so revisable. Thus the late Grant Gilmore, for a time Holmes’s authorized biographer, attacked the “myth” that portrayed him as “the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus.” The real Holmes, he said, was “savage, harsh, and cruel”—but as such “a greater man and a more profound thinker than the mythical Holmes ever was.”3

Gilmore’s wicked Holmes is to American law as Satan is to Paradise Lost, the most memorable character in the story. Yet just as Milton encouraged readers who would claim Satan as not only the starring villain but the secret hero of his epic, history leaves a solid factual basis for both Gilmore’s account and for the heroic Holmes of legend. Both stories are selective, neither is false.

1.

In the heroic story, the young Holmes, raised in the Boston Brahmin culture defined by men like his father, Emerson, and Longfellow, was shaken from their complacencies in his college years by the the emergence of Darwinism. He then joined the Union army as a committed abolitionist and came to manhood as an infantry officer on the battlefields of the Civil War, where he was three times wounded.

After the war, Holmes at first submerged himself in philosophy in the company of such contemporaries as Leslie Stephen and William James, but, required to make a living, finally committed himself to a career in the law. This came during a crisis in the Anglo-American legal system. The old common-law system was undergoing rapid change, but the vague and hortatory jurisprudential theories inherited from Blackstone and other classic legal writers were inadequate guides for the needed reconstruction.

Armed with skeptical and secular inclinations, a powerful mind, a gift for writing, an unlimited appetite for work, and youthful hubris, Holmes set about mastering the technical details of the law, with the ultimate goal of reformulating its theoretical under-pinnings. His project was to replace the prevailing theologically tinged or formalistic legal theories with a modern jurisprudence that drew its inspiration from Darwin and its methods from German historical scholarship and English utilitarianism. He labored for fifteen years, practicing law by day and studying and writing at night, first to master the law’s substance, and then to reimagine it as at once a social instrument and a product of society’s habits, desires, and ideals. The result was his masterpiece, The Common Law (1881), still generally thought the most important work of American legal scholarship. The book presented the main doctrines of criminal law, torts, property, and contracts from the revolutionary perspective that Holmes announced in its famous opening sentences:

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…. In order to know what [the law] is, we must know what it has been, and what it tends to become.

In 1882, Holmes was named to the Supreme Judicial Court of Massachusetts, where he served for twenty years. There he continued to promote his jurisprudential reforms in a series of classic articles which, along with The Common Law, served as the primary inspiration for the functional approach to jurisprudence that has since dominated modern American legal thought. He argued that law should be conceived as a means to the attainment of human ends, that tradition and precedent should be subject to scrutiny and revision, and that judges should admit that they decide debatable cases on the basis of policy, not of precedent or abstract principle.

Bringing this experimental jurisprudence to his work, Judge Holmes confronted the need to adapt American law to an economy transformed by railroads, telegraphs, and large manufacturing corporations. Himself skeptically conservative about economic regulation, he argued that courts should relax traditional conceptions of property rights to allow legislative experiments in government ownership and worker protection. In a pair of classic labor-law dissents, he argued that the right of workers to organize and strike was part of the “free struggle for life,” which should not be “limited to struggles between persons of the same class.”

Partly on the basis of Holmes’s labor opinions, Theodore Roosevelt named him to the Supreme Court in 1902, where he soon began a series of celebrated dissents from decisions invalidating maximum hour, minimum wage, and other statutes protecting workers. Holmes wrote that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” and that judges must allow social experiments to go forward in “the insulated chambers afforded by the several states.” He likewise argued for expanded federal powers to regulate the national economy, for example by barring goods made with child labor—“the product of ruined lives”—from interstate commerce. The Constitution, he said, had “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters,” and now “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Holmes’s dissents in the cases involving state and federal power over the economy were vindicated in the New Deal court crisis of 1937, and have since formed the basis for modern constitutional law on these subjects.

His modernist jurisprudence also led Holmes to take the lead in developing judicial protections for basic human rights. His dissent in the case of Leo Frank, a Jew convicted of murder in a Georgia court, insisted that federal judges could protect basic due process in state criminal proceedings: “habeas corpus cuts through all forms and goes to the very tissue of the structure…. Mob law does not become due process of law by securing the assent of a terrorized jury.” Again, Holmes’s dissent later became accepted law.

His most enduring judicial achievement was to lay the foundation for the modern American law of free speech. During the wartime anti-German and postwar anti-Communist hysteria in 1919, Holmes dissented in the case of Jacob Abrams, an anarchist sentenced to twenty years in prison for distributing antiwar pamphlets:

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. 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 upon 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…

Again, his doctrine that speech may only be checked to avert a clear and present danger became our law of free speech, with the Abrams dissent as its classic manifesto.

Holmes was not only a legal theorist and a judge but, as John Dewey said, “one of our great American philosophers,”4 though one whose philosophy is found in essays and letters rather than any systematic treatise. He knew the classical and early modern philosophers well, and throughout his life followed the work of contemporaries like Santayana, Bergson, James, Russell, and Whitehead. The two philosophers who came closest to his own ideas were Spinoza and Dewey, and his essays reflect both their naturalism and their acceptance of will and intellect as equal components with matter in the makeup of the cosmos.

He was also a man of immense vitality, wit, and charm, a renowned conversationalist, and a warm and sympathetic friend to a cosmopolitan circle of men and women, young and old, socialists and conservatives, English, Irish, Chinese, Japanese, and Americans (many of the latter Jewish—Holmes had none of the usual Brahmin anti-Semitism). He had many friendships with women, and despite one passionate secret romance in midlife, was happily married for nearly sixty years to Fanny Dixwell Holmes, an artistically talented and witty woman who loved him. They had no children, but in his later years Holmes acted as a mentor to a wide circle of younger intellectuals, many of whom were leading liberals and Progressives, including the lawyers Felix Frankfurter and Learned Hand, the political theorist Harold Laski, the philosopher Morris Cohen, and the economist Richard Ely.

  1. 1

    Felix Frankfurter, editor, Mr. Justice Holmes (Coward-McCann, 1931), pp. 5, 20, 118, 166-167, 183.

  2. 2

    See also Gary Aichele, Oliver Wendell Holmes, Jr. (Twayne, 1989); Sheldon Novick, Honorable Justice (Little, Brown, 1989); Liva Baker, The Justice from Beacon Hill (Harper Collins, 1991).

  3. 3

    Grant Gilmore, The Ages of American Law (Yale University Press, 1977), pp. 49, 127.

  4. 4

    John Dewey, Experience and Nature (Southern Illinois Press, 1981; first edition, 1925), p. 312.

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