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Supreme Court Justices

Oliver Wendell Holmes (1841-1935)

Oliver Wendell Holmes, Jr. was born on March 8, 1841, in Boston, Massachusetts. He was the eldest of three children born to his parents. His father, for whom he was named, was a medical doctor and writer who was a co-founder of The Atlantic Monthly. His mother, Amelia Jackson, was an abolitionist, and Massachusetts then was the home of abolitionism. As an adult, Holmes was tall and  handsome, and wore a military mustache (as you can see in the picture). Holmes had a difficult relationship with his father, who often used Holmes as the recipient of his barbs in his Atlantic Monthly column, "The Autocrat of the Breakfast-Table." He was his mother's favorite child, and received his self-confidence from her.

Wendell, as he was called, attended Harvard College beginning in 1857. Shortly before he graduated, the Civil War began. Holmes left Harvard to join the Twentieth Massachusetts Regiment when the Civil War broke out. Because the Regiment didn’t do any fighting before graduation, Holmes was able to complete his exams and graduate in uniform. Holmes was wounded three times in the Civil War, most seriously in October 1861 at Ball’s Bluff (in the chest). He was also wounded in the battle at Antietam Creek in September 1862, when the Civil War became a total war (over 20,000 soldiers suffered casualties in one day at Antietam, and over 3,600 died). Holmes was wounded a third time at Chancellorsville (May 1863) in the heel, and apparently hoped his foot would be amputated, so he could leave the military. His experiences in the Civil War greatly affected his view of life and law. Before the War, Holmes had joined a Christian society at Harvard, and was a supporter of the abolitionist cause. After the War, he believed in little. After his three-year military commitment ended, Holmes returned to Boston rather than re-enlist. He entered and graduated Harvard Law School, and joined the Massachusetts bar in 1867. His practice was not terribly successful, although he wrote articles for the American Law Review and revised Chancellor James Kent’s Commentaries on American Law. Holmes believed a man had to earn his reputation before he turned 40, or he would not make it at all. Shortly before his 40th birthday, he was invited to give the Lowell Lectures. The book published as a result of those lectures was The Common Law, which brought him the acclaim he had long desired. Shortly thereafter, Holmes accepted a teaching position at Harvard Law School, but in the middle of his first term there, he accepted an appointment to the Massachusetts Supreme Judicial Court, where he was was a Justice until 1902, when he was nominated to the Supreme Court by Theodore Roosevelt. TR nominated Holmes because he thought Wendell was trustworthy on the issue of taxation of those in the colonies (gained as a result of the Spanish-American War of 1898), and because TR well knew Holmes’s stock speech glorifying war. TR later viewed the appointment of Holmes as the major mistake of his presidency because he and Holmes disagreed vehemently about the value and interpretation of the Sherman Antitrust Act. Of Holmes, TR said, "Out of a banana I could carve a firmer backbone." Holmes remained on the court for 29 years, retiring at 90 from the Supreme Court after a visit from Chief Justice Charles Evans Hughes. He died three years later, on March 4, 1935, four days before his 94th birthday.

In addition to his Civil War experiences, his marriage and family life affected him as well. Holmes lived at home until he married his schoolmaster’s daughter, Fanny Dixwell, in 1872. They remained married until her death in 1929. He and his wife did not have any children, possibly as a result of an illness she suffered from very shortly after they were married. In the late 1890s, Holmes was involved in an unconsummated (?) affair with a married woman, Lady (Clare) Castletown, from Ireland and England. Holmes’ life tells us how young the United States is: He attended the funeral of (and may have known) the 6th President of the US, John Quincy Adams, and knew the 32nd President of the US, FDR (of whom he said, "a second-class intellect, but a first-class temperament.").

Holmes’ jurisprudence is the wellspring for much of current American views about jurisprudence. Holmes 1) tuned everyone to a social view of law—"The life of the law has not been logic, it has been experience;" 2) was perceived to advocate judicial restraint when (conservative) judicial activism was denounced by progressives; 3) advanced the idea of law as prediction, thus leading to the is/ought of legal realism; 4) urged a view of law from the perspective of a bad man, which led to a form of authoritarian control; and 5) argued for a thoroughgoing positivism (and opposition to moral language in law).

In 1881, when the lectures given at the Lowell Institute were published as The Common Law, Holmes’ purpose was to attack the elegant formalism being taught at Harvard by Christopher Columbus Langdell. His wide readings in history and philosophy (and his membership in the Metaphysical Club, a group of nascent pragmatists such as Nicholas Green, Charles S. Peirce and William James), and his devotion to Social Darwinism (Herbert Spencer’s Social Statics (1852)) led to a complete skepticism about natural law and rights. The question then is, what takes the place of natural law and natural rights? For Holmes, the initial answer was an objective custom. The moralizing and blameworthiness that went hand-in-hand with natural rights was shunted aside, and was replaced by community standards as exemplified by the Judge. But by 1897, when his famous Harvard Law Review essay The Path of the Law has been published, Holmes’ views had changed and had become even more stark. The disruptions in society, especially the labor-management conflicts of the early and mid-1890s, indicate that community standards don’t always exist, and Holmes must decide a number of labor injunction cases. His theory in The Path of the Law is to conclude that law is nothing more that what judges actually do. In having to choose between an individualism he despised (he talked at 90 of the nonsense of "rights"), and a statism he feared (especially as an economic conservative), he choose the latter. He so chose, in part, because he believed in the positivist ideals, and individualism requires some anti-positivist beliefs (and possibly some religious belief, which Holmes pointedly did not have). His statism, of course, is compatible at this time with progressive beliefs, for progressives favor state regulation of economic matters and oppose an activist Supreme Court striking down such laws based on the due process clause of the 14th Amendment. Holmes’ Lochner dissent becomes an example of his progressivism. As a result of Lochner, Holmes was miscast as a progressive, and many trees were killed between the 1920s and 1960s to show how progressive Holmes was. This effort was both led and inspired by Felix Frankfurter. It wasn't until the 1960s that a revised assessment of Holmes occurred. Recently, Professor Albert Alschuler has written a book (noted below) emphasizing the dark side of Holmes' jurisprudence.

Holmes was an exceptional writer of pithy statements ("Three generations of imbeciles are enough;" "A word is but the skin of a living thought;" and "The fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics," among others), and together with his physical appearance, extraordinarily long life, stoicism, devotion to duty, lionization among successive generations, and lack of apparent ethnic prejudice (in an era of rampant anti-semitism) made him an iconic judicial figure.

Further reading: Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (1989); G. Edward White, Justice Oliver Wendell Holmes: Law and Inner Self (1993); Albert W. Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000). There are many other works about Holmes.