Richard Nisley


Book Review: Oliver Wendell Holmes: A life in War, Law, and Ideas
History - American Released - Jan 05, 2020
In 1926, at the ripe old age of 85, Justice Oliver Wendell Holmes, discovered his popularity was so widespread that it lent him something of a rock star status, such was the impact of his dissenting opinions as a justice of the U.S. Supreme Court. That was the year TIME magazine put his face on the cover of its March issue. In the cover story, journalist Walter Lippmann wrote, "He is a thinker who has made thinking, even about law, beautiful." Known as "The Great Dissenter", Holmes penned pithy minority opinions, many of which were eventually adopted by the Court, including the First Amendment right of free speech. He also found in favor of limiting employee working hours and restricting child labor. Biographer/historian Stephen Budiansky has done a bang up job in researching and writing Holmes's biography. At 461 pages of text, plus notes, it's that rare book that once started, can't be easily put down. I enjoyed every word, and when I finished, with nothing more to read, felt a bit empty.

With the outbreak of the American Civil War, Holmes enlisted in the Union Army and became a decorated infantry officer; as a student, he graduated with honors from both Harvard University and Harvard Law School; to make a living, he practiced law in his hometown of Boston, eventually to join a prominent law firm; and he wrote the classic treatise on American law, "The Common Law"; he lectured and ultimately taught a class at Harvard Law; and he served on the Massachusetts Supreme Judicial Court for 20 years, the last three as chief justice. In 1902, he was appointed to the U.S. Supreme Court, where he served another 30 years.

Holmes considered himself first and foremost a writer. In fact, that is what he originally wanted to be–a writer. His prose style is spare, direct, and to the point. This was especially true of his Court opinions, which, at a time when his colleagues on the bench tended to write expansively, Holmes was mercifully brief and to the point. Says the author: “Holmes wrote like no one else, with a style as American and distinctive as Mark Twain or Walt Whitman. . . .” Regarding his legal writing, the author says, “No one knew how to strip off excess judicial verbal poundage better than Holmes. . . . Even in his day he stood out as unusual for the economy and brevity of his decisions . . . . Holmes never worried he might be leaving out an essential point because he viewed everything but the decisive crux of a case as extraneous.” The author adds: “(Holmes) almost completely avoided legal jargon and cant phrases in his judicial writing. But more than that was the freshness of his prose that reflected a clarity of thinking which commanded attention. . . 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 through a complex legal problem.”

Oliver Wendell Holmes Jr. was born March 8, 1841, to a family of Boston Brahmins. As a class, the Brahmins were well-educated, wealthy, and influential, with descendants that included the first Europeans to reach America's shore, some of whom arrived on the Mayflower. Holmes's father, Oliver Wendell Holmes, Sr. was a novelist and poet of renown (note: two of his poems are included in "One Hundred and One Famous Poems").

Prior to the Civil War, the Holmes family were unabashed abolitionists. Prior to graduation from Harvard and before the first shot was fired at Fort 
Sumpter, Holmes enlisted in the fourth battalion, Massachusetts militia. After graduation, he received a commission as first lieutenant in the Twentieth Regiment of the Massachusetts Volunteer Infantry: he partook in the Peninsula Campaign, the Battle of Fredericksburg, and the Wilderness. He suffered serious wounds at the Battle of Ball's Bluff, at Antietam, and at Chancellorsville. (He missed the Battle of Gettysburg, while mending from his wounds.) After he died, when his Washington lawyer opened Holmes's private safe deposit box, he found a small paper parcel. Wrapped inside were two musket balls, and on the paper was a note in Holmes's hand which read: "These were taken from my body in the Civil War."

POST WAR

In the summer of 1864, Holmes left the military and returned home, wrote poetry, and thought about trying to make a career as a writer of philosophy, like his family friend Ralph Waldo Emerson. After visiting Emerson, he decided it was not for him, and enrolled at Harvard Law School. After graduation he took up the practice of law and for about a year met informally with a group of high-brow friends who referred to themselves as “The Metaphysical Club.” The name was something of a joke, as the group was anything but interested in metaphysics. Indeed, their discussions led to the creation of a new branch of philosophy known as pragmatism.

While studying for his bar examination, Holmes began working for the prestigious law firm of Chandler, Shattuck and Thayer. Also around this time, he married Fanny Bowditch Dixwell, whom he had been courting for a number of years. If Holmes weren’t busy enough, he also began editing the American Law Review. Meanwhile, James B. Thayer, the junior partner at Chandler, Shattuk and Thayer, had been approached to prepare a revised edition of “Commentaries on American Law.” This was the American counterpart to William Blackstone’s classic “Commentaries on the Laws of England.” Originally published in 1826 by Chancellor James Kent of the New York state courts, the hefty tome was by now badly in need of an update. Like Blackstone, Kent presented a compendium of major appellate court decisions that practicing attorneys needed in order to look up cases and cite as precedents. The revision proved to be a major undertaking. At some point, Holmes was called in to assist. Eventually, he took over the project.

Writes the author: “The work quickly became something close to an obsession for him.” For two years, Holmes devoted all of his free time and energy to the project. With the publishing deadline of July 1872 fast approaching, he wrote to Thayer saying that he thought it more important to take the time to do the job thoroughly than to meet the original two-year deadline, even though “it has been at considerable pecuniary sacrifice that I have done as I have.” The book would be published in late 1873, and go on to become a classic of American law. Holmes summarized his hard-won understanding in a series of lectures, later collected and published in 1881as "The Common Law". Among the most famous lines quoted from "The Common Law" is: “The life of the law has not been logic; it has been experience.”

Holmes’s labors gave him an extraordinary familiarity with the leading cases across the entire breadth of the law, from property to admiralty. Years later, Chief Justice Charles Evans Hughes, under whom Holmes served on the High Court and wrote many majority opinions, often under pressure of deadline (Holmes was quick with a pen), opined that the reason Holmes was able to turn out his decisions so quickly was a direct consequence of this early and total immersion in the law, “which 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 the law, Holmes needed to make no re-examination—the law was at his finger tips.” Like Alexander Hamilton before him, Holmes read everything, and remembered everything.

JUDGE OF THE MASSACHUSETTS SUPREME JUDICIAL COURT

Holmes taught at Harvard Law school for one semester, but did not enjoy it. Thus, in late 1882, when he was offered a seat on his state's Supreme Judicial Court, he accepted gladly. Later, he admitted that his brief stint in "the ivory tower" had done little more than leave him feeling trapped. On the bench, Holmes discovered a pleasure in his work he hadn't expected. Part of the pleasure, he reported, came from the feeling of being on the firing line and getting out of the artificial tranquility of the cloister, where "the professor, the man of letters, gives up one-half of his life that his protected talent may grow and flower in peace." Having to "make up your mind at your peril upon a living question," was by contrast bracing and filled him with a sense of life. It also gave him a chance to write influential court opinions, many of which would change American law.

At about the time Holmes entered the bench, the nation was swept up in widespread labor unrest, the result of several decades of expanding industry: coal, steel, railroads and the like, where labor—much of it immigrant—was routinely exploited in the interest of corporate profits. Throughout the1880s, strikes were on the rise, and reached a peak in the 1890s. State legislatures passed laws to regulate business and to protect labor, by improving working conditions and limiting working hours. Labor disputes with management were common and sometimes violent, and many looked to the courts for redress. Holmes tended to favor labor and therefore state laws that were designed to protect worker rights. His conservative brothers on the bench, however, tended to favor big business, which often made Holmes the lone dissenting voice. It was not a position he relished. As a rule, he said, he disliked the practice of dissent; he thought it better to “shut up” than to file a lone dissent, and in his twenty years on the Massachusetts bench he would issue only a dozen written dissents in all.

However, the majority opinion in Commonwealth v. Perry pushed him to the edge, and he felt he could not remain silent. His objection to the court’s majority decision was not just a difference over a technical point of law; he was deeply bothered by politics masquerading as objective legal analysis. In upholding “economic doctrine which prevailed about fifty years ago,” he said what he didn’t like about the case was that judges were “taking sides upon debatable and often burning questions.”

When it came to interpreting the law, says the author, Holmes was by nature a skeptic. Unlike some jurists, he never mistook his own views for “eternal truth.” His belief that “certainty is illusion” made him reluctant to insist that “one rule rather than another had the sanction of the universe. . . .” It was his opinion to let the states make the laws regulating business and labor alike, and for the courts to refrain from interfering. “We should remember that (a constitution) is a frame of government for men of opposite opinions and for the future, and therefore not hastily import into it our views, or expressing limitations derived merely from the practice of the past.” The question to ask was not whether the constitution specifically authorized a certain power, he said, but only whether it prohibited it.

JUSTICE OF THE U.S. SUPREME COURT

In February 1902, an associate justice on the U.S. Supreme Court died, thus opening up a seat for Holmes's appointment, by President Theodore Roosevelt. That December, he was unanimously confirmed in the U.S. Senate, and, on the eve of his sixty-second birthday, was on his way to a new life in Washington D.C.

The most powerful and certainly the most colorful figure on the Court was John Marshall Harlan. As Holmes would be known in his later years, Harlan was called “the Great Dissenter.” In many ways Holmes and Harlan had much in common—both were unusually bright, both had a gift for coining memorable phrases, and both had views that were often at odds with their brethren on the bench. Ironically, the two never got along.

Leading the conservative majority was Associate Justice Rufus Peckham, of Albany, New York. In a number of important cases he had been a leading force on the Court, in reading laissez-faire economic ideas into the Constitution via a doctrine that the Fourteenth Amendment embodied the absolute protection of “liberty of contract” — which Peckham had extolled in one opinion as a right of man “endowed by his Creator.”

Holmes’s first opinion, delivered on the first Monday of January 1903, was Otis v. Parkers, which had been brought as a challenge to a provision in California’s state constitution that banned buying stock on margin. The case gave Holmes a chance to take on the Court’s growing use of the Fourteenth Amendment to invalidate state laws, which it had been doing for the better part of 20 years. In writing the majority opinion for the Court he carried all the justices save two: Peckham and David J. Brewer, in asserting that there were limits to how far the High Court might substitute its own judgement for that of state legislatures. “General propositions do not carry us far,” he said.

Further on he wrote, “Considerable latitude must be allowed for differences of view, as well as for possible peculiar conditions which this Court can know but imperfectly, if at all. . . . Even if the provision before us should seem to us not to have been justified by the circumstances locally existing in California at the time when it was passed, it is shown by its adoption to have expressed a deep-seated conviction on the part of the people (of California) concerned as to what policy is required. Such a deep-seated conviction is entitled to great respect.”

The next major case for Holmes to have made his mark (with a wicked dissenting opinion), was Lochner v. New York, about which entire books have been written. The facts are simple enough. In 1895, the New York State legislature passed a law regulating sanitation and working conditions in New York City bakeries. For the most part city bakeries were located in the basements of tenement buildings. Floors and walls were usually nothing more than packed dirt, leaking sewer pipes fouled the air, ventilation was nonexistent, lighting minimal. Ten-hour days, and sixty-hour work weeks were the norm, hourly pay was minimal. The issue was whether or not the states had the right to regulate business. In a 5-4 opinion the Court ruled they did not, by striking down the state law as unconstitutional. Justice Peckham, who had never set foot inside a bakery in his life, wrote the majority opinion. He said, “clean and wholesome bread does not depend upon whether the baker works but ten hours per day”; the law was rather “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.” The principle upon which he based his argument was ”the liberty of contract/substantive due process clause”, a concept that cannot to be found in the U. S. Constitution; as well as Peckham's take on the Fourteenth Amendment, that was in line with the doctrine of laissez-faire economics as put forth by an English philosopher named Herbert Spencer, whose treatise “Social Statics,” proclaimed laissez-faire economics as “natural law.” (note: at the time Herbert Spencer’s “Social Statics” was the bible among laissez-faire economists).

Holmes was having none of it. In one of this most famous dissenting opinions he wrote: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” In other words, there was nothing “natural” about laissez-faire; it was just an economic theory, and “a constitution is not intended to embody a particular economic theory,” wrote Holmes. “It is made for people of fundamentally different views, and the accident of our finding certain opinions natural and familiar or novel and shocking ought not to conclude our judgement upon the question whether statutes embodying them conflict with the Constitution of the United States. General principles do not decide concrete cases.”

HOLMES ON FREE SPEECH

The Civil War changed Holmes, which is important in understanding his evolving attitude toward free speech. Like many young men who enlisted in the military, Holmes went off to war certain of the rightness of the cause. He was, after all an abolitionist, and the war was being fought to abolish the evil of slavery. In time, however, he began to see that the slave-holding South was equally convinced of the rightness of its cause. Holmes returned from the war as a skeptic, believing that certitude, if left unchecked, would inevitably lead to violence, as it had with the Civil War. The answer, as he saw it, was tolerance, and tolerance was at its heart a civilizing force. Writes the author: “Holmes’s skeptical view of life was the living soul of a tolerant, democratic, and restrained judicial philosophy.”

Holmes had little patience with the jurists of his day whose idea that the answers were to be found with nothing more than a dictionary and a literal reading of the words of the U.S. Constitution. And he was equally impatient with jurists who believed they could find answers by divining what the Founders might have thought about the matter—as judicial “textualists” and “originalists” in our day are wont to assert. Writes the author, “Holmes would have been equally scornful of the contention that judges face a binary choice of ‘strict construction’ or ‘judicial activism.’ As Holmes frequently took pains to point out, most questions of constitutional law come down to claims of competing rights, which the Constitution itself cannot possibly settle.

“The Constitution,” Holmes wrote, “is not a set of ‘mathematical formulas’; it does not divide fields of black and white; it is not the partisan of a particular set of ethical or economic opinions. It is rather a frame of government for men of opposite opinions and for the future.”

As we have seen, in cases of business versus labor, Holmes tended to side with the working man. As such he was often in the minority. In cases of free speech, especially during World War I—which pitted war protestors and anarchists against the U.S. government—Holmes at first sided with the federal government. Among his most famous decisions was the court’s majority opinion he wrote in Schenck v. United States (1919). In this case, the court refused to overturn the conviction of Charles Schenck, an antiwar activist. Schenck had distributed pamphlets against U.S. involvement in World War I and had been found guilty of violating the Espionage Act. Writing the Court’s majority opinion, Holmes said that each case must be examined to determine “whether the words are used in such circumstances and are of such a nature as to create a clear and present danger and that they will bring about substantive evils that Congress has a right to prevent." Further on, he wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

That same year, Holmes reversed himself in Abrams v. United States, a case in which the court upheld the convictions of several Russian-born political radicals under the Espionage Act. Holmes thought that the case failed to meet the “clear and present danger” test. In a dissenting opinion, he 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 foundations of their own conduct that the ultimate good desired is better reached by the 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. . . . While that experiment is part of our system I think 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 purpose of the law that an immediate check is required to save the country.”

CELEBRITYHOOD AT AGE 85

As Holmes entered his eighties, he discovered he was something of a celebrity. Being essentially a private person, this was something he neither sought nor welcomed. In our day, the same phenomenon has happened to another Supreme Court justice–Ruth Bader Ginsburg.

In January 1932, after nearly 30 years of service, Holmes retired from the Supreme Court. He died on March 6, 1935, in Washington D.C.–just two days shy of his 94th birthday, and was buried next to his wife (who had died six years earlier) in Arlington National Cemetery in Virginia.

Final note: In a speech Holmes gave at Harvard in 1886, on "The Profession of the Law," he spoke of the loneliness of original work, the "black gulf of solitude more isolating than that which surrounds the dying man," but whose reward is "the secret joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought." Concludes the author, "Holmes reaped that reward far more than he ever dared believe, which was the final testimony to the greatness of his skeptical humanity."

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