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The Shrinking Legacy of a Supreme Court Justice

Why veneration of Oliver Wendell Holmes is in decline


Once upon a time, Oliver Wendell Holmes Jr. was the great modern American jurist. The “Yankee from Olympus,” as Catherine Drinker Bowen’s 1944 biography called Holmes, was the first celebrity justice of the U.S. Supreme Court, as popular then as the Notorious RBG is now. Nearly a century ago, the Columbia Broadcasting System delivered a celebration of Holmes’s 90th birthday into living rooms around the country. After his death, Hollywood’s MGM produced a popular feature film about him, promoted with an adulatory trailer with acting legend Lionel Barrymore. Secretary of State Dean Acheson confessed dreamily that Holmes was the greatest man he had ever known.

W.W. NORTON, 592 PP., $29.95

Veneration of Justice Holmes has, however, declined steeply. For a generation, critics have attacked him for his callousness toward the poor and disadvantaged, and for taking little interest in the fate of African Americans in civil rights cases, so long as the formalities of the judicial process were properly respected. Moreover, the legacies for which his admirers once lionized him are now in bad disrepair. His insistence on judicial deference to democratic majorities has little support in today’s Supreme Court. Still worse, in the era of Citizens United, the ideas of free speech for which Holmes once fought now obstruct the democratic outcomes he so vigorously defended. Justice Holmes’s two legacies—respecting democracy and defending the First Amendment—are in a slow-motion head-on crash.

In his new biography of Holmes, Stephen Budiansky adopts a creative new way of rescuing Holmes for our times. Although he updates many long-standing defenses of Holmes’s jurisprudence, his focus is on personality: This is a human Holmes, a man with whom one might like to have a drink, smoke a cigar, and discuss the meaning of life. Less than two decades ago, Louis Menand’s The Metaphysical Club offered us a superhuman Holmes who translated the lessons of the Civil War into a language for modern American liberalism. Now Budiansky presents a less ambitious, more private, and more plausible Holmes, one who exercised less influence and who made his share of mistakes, but who became a symbol of the law nonetheless.

Budiansky’s Holmes is an able but diminished man. And in this sense, at least, he is a man for our era. The Holmes on offer in this engaging new biography matches the reduced expectations Americans have for the Supreme Court today.

Oliver Wendell Holmes Jr. was born in 1841 in Boston, Massachusetts, to a family that had long been a fixture of the state’s Protestant elite. Holmes’s father, Oliver Wendell Holmes Sr., was both a dean of the Harvard Medical School and one of the country’s foremost literary figures. Famous for his witty conversation, he gathered men like Ralph Waldo Emerson, Nathaniel Hawthorne, the scientist Louis Agassiz, and the statesman-intellectual Charles Sumner once a month at his “Saturday Club.” The older Holmes monopolized conversation even in such company. It was surely a point of family pride when young Wendell’s first report card at age six stated that the boy “talks too much.”

Holmes’s privileged childhood of intellectual stimulation, Boston townhouses, and summer homes in the Berkshires led, inevitably, to Harvard College. The college’s most exclusive social clubs tapped him, and America’s foremost intellectual figures casually read his college work. (“When you strike at a king, you must kill him,” Emerson scolded upon reading an essay of his on Plato.) Near the end of his senior year in April 1861, just two weeks after the firing on Fort Sumter, Holmes joined the Fourth Battalion of the Massachusetts Volunteer Militia. He spent the next three years as a soldier.

Many a biographer has made Holmes’s Civil War wounds—physical and psychological alike—central factors in their accounts of the man. In October, during the bungled engagement at Ball’s Bluff, a Confederate minié ball struck him on his left side and passed through his chest. “I made up my mind to die,” he later told his mother. But he lived and was soon back in action. In September 1862, Holmes was shot through the neck at Antietam. In May, at Fredericksburg, a small iron ball from a Confederate artillery round struck him in the heel. His friends joked that he’d been wounded like Achilles, but Holmes went back into uniform a third time to join General Ulysses S. Grant’s remorseless Overland Campaign toward Richmond. At Spotsylvania he fought at the Bloody Angle, where he remembered dead and dying men piled in “a row six deep.”

Edmund Wilson’s brilliant essay on Holmes, which appeared as the last chapter of his 1962 book Patriotic Gore, contended that the war bludgeoned Holmes’s youthful certainties into a thoroughgoing skepticism about moral absolutes. Budiansky observes that Holmes was too smart to make any such mistake, since skepticism about ultimate truths is itself a kind of certainty in disguise. “The sceptic [sic],” Holmes wrote, “has no standard to warrant such universal judgments.” Yet the war imprinted itself on Holmes’s thinking. Seventy years after the end of the conflict, the executor of Holmes’s estate found a parcel in the justice’s safety-deposit box. Inside were two small lead balls and a note: “These were taken from my body in the Civil War.”

After the war, Holmes graduated from Harvard Law School and joined a well-connected commercial firm in Boston. But practice never really appealed to Holmes. He set out to develop nothing less than a new theory of the law, writing scholarly articles and producing an ambitious twelfth edition of the legal classic and best-seller, James Kent’s Commentaries on American Law. Ambition came at a price. “I have felt horribly alone,” he admitted. Work took a toll on friendships, too. His contemporary the philosopher William James accused Holmes of “cold-blooded conscious egotism.” A senior lawyer in Holmes’s law firm said that Holmes was “selfish, vain, thoughtless of others,” and “wanting sadly in the noblest region of human character.”

Professionally, Holmes’s decade of focused study paid off. In the fall of 1880, he delivered a series of lectures for the Lowell Institute, later published under the title The Common Law. Every Tuesday and Friday for six weeks, Holmes developed the idea that the common law had evolved not according to any internal reason but according to the felt imperatives of the day. “The life of the law,” Holmes wrote, “has not been logic: it has been experience.” The core function of judges was to make public policy. Several decades later, jurists would name this philosophy “legal realism.”

Critics say realism is the abandonment of the very idea of law as a neutral field of moral principle. Nonetheless, it has been the United States’ distinctive contribution in modern legal thought, and Holmes laid its foundation.

Appointed to the United States Supreme Court in 1902, Holmes soon gave voice to his idea of the law as an evolving balance of conflicting interests. In the 1905 case of Lochner v. New York, Holmes dissented from a decision to strike down a New York maximum-hours law limiting bake shop workers to no more than ten hours of work each day. Writing for the court’s majority, Justice Rufus Peckham contended that the Fourteenth Amendment’s Due Process Clause prevented state legislatures from interfering with bakers’ freedom to contract. But Holmes observed that states constrained the liberty of individuals all the time. The Constitution, he continued, “is made for people of fundamentally differing views” about which constraints on liberty ought to be enacted into law. The court’s job was to respect the result arrived at in the political sphere.

Holmes’s most infamous decision did this and more. In 1924, Virginia had enacted a state law authorizing officials at state institutions to sterilize inmates afflicted with “idiocy, imbecility, feeble-mindedness” or “hereditary forms of insanity.” An 18-year-old named Carrie Buck challenged the law as a violation of the Due Process Clause. Buck was in no way feebleminded. She had been sent to an institution for the feebleminded to hide a pregnancy resulting from sexual abuse, only to find herself caught up in the state’s new eugenics law.

In the Supreme Court, her lawyers relied on the same argument that had protected Joseph Lochner’s freedom to contract two decades earlier. Forced sterilization interfered with the personal liberty guaranteed by the Fourteenth Amendment. Holmes disagreed. Now writing for the majority, in Buck v. Bell he upheld the state’s sterilization law on the ground that “Three generations of imbeciles is enough.” Budiansky tells us that Holmes was “unusually proud of his opinion in Buck.” “I purposely used short and rather brutal words,” the justice wrote to his friend Harold Laski. With Holmes’s approval, eugenicist policies thrived in the United States for a decade, until at last revulsion at Nazi atrocities produced a backlash.

Less well known is Holmes’s majority opinion in 1903 in the case of Giles v. Harris. Budiansky does not give the case much attention, but it is arguably more significant. The decision turned back the claims of a black post office employee named Jackson Giles and more than 5,000 black men in the Colored Men’s Suffrage Association of Alabama. Giles aimed to defeat the new state constitution’s Jim Crow “grandfather clause,” designed to prevent black men from registering to vote. Holmes upheld the clause on the theory that courts lacked the capacity to deliver the kinds of political relief Giles requested. Only Congress, Holmes concluded, could provide a remedy for black men who wanted to vote in Alabama, though he knew that no such remedy would be forthcoming.

Beginning in the fall of 1919, Holmes adopted a startling new approach in the court’s free speech cases. For decades, he had insisted that courts should defer to legislative bodies as the authorized will of the community. His opinions in Giles, in Lochner, and in Buck v. Bell advanced this theme. But in the aftermath of World War I, he switched.

Holmes had been hostile to free speech claims before 1919. As Budiansky explains, Holmes had long followed the conventional nineteenth-century view that the First Amendment meant the freedom to say and publish what one wanted, not the freedom to evade punishment after the fact for what one had said. Even as late as the spring of 1919, Holmes advanced a version of this long-standing view when he wrote the court’s opinion upholding a wartime Espionage Act conviction and concurred in the court’s decision affirming a ten-year prison sentence for Eugene Debs, the perennial Socialist presidential candidate.

When the case of United States v. Abrams arrived on the court’s docket that fall, Holmes reversed his position. Writing in dissent and joined by Justice Louis Brandeis, he argued that leaflets condemning U.S. military intervention in Russia and calling for a workers’ revolution were protected by the First Amendment. His opinion became perhaps the most famous articulation of a theory of the First Amendment. “Time,” he wrote, “has upset many fighting faiths.” The beliefs of one generation are overturned by the next. It follows, Holmes said, that “the best test of truth is the power of the thought to get itself accepted in the competition of the market.” For the next decade, Holmes and Brandeis dissented in a steady stream of free speech cases. In 1931, when the court’s majority began to side with speakers and against the government, Holmes was still on the court to see the reversal.

Holmes retired from the court the next year. He died three years later, at the age of 93. In the years after Holmes’s death, his two most famous dissents—Lochner and Abrams—became cardinal principles in the transformed Supreme Court. The justices would no longer strike down democratically enacted social legislation that had at least a reasonable basis; the Due Process Clause would no longer serve as a counter-majoritarian vehicle for laissez-faire policies. At the same time, the court emerged for the first time in American history as a defender of robust speech rights.

Budiansky presents these two traditions in the modern Supreme Court—democracy and free speech—as Holmes’s triumphant legacies today. But in our time, the already awkward relationship between these two legacies has broken down into warring standoff. Beginning in the 1970s, the Supreme Court’s First Amendment decisions have obstructed campaign finance rules necessary to protect democracy from the undue influence of wealth. The court has struck down third-party expenditure caps in election campaigns and restrictions on corporate political contributions. In 2007, the court overturned bans on certain corporate political “issue-ads.” In the Citizens United case of 2010, the court struck down restrictions on election-related speech by corporations.

Free speech law in recent years has also undermined democratic regulation of the marketplace. The court has struck down advertising rules in the pharmaceutical market, invalidated state limits on the sale of medical information, and overruled mandatory employee fees to fund the unions that represent public employees in collective bargaining. Lower courts have gone even further, reversing Food and Drug Administration efforts to add graphic warning labels to cigarettes and establishing new First Amendment rights to market pharmaceuticals. As Justice Elena Kagan noted in a blistering Holmesian dissent in the Janus case in 2018, the court today has “weaponize[d] the First Amendment.” The Lochner majority that Holmes disdained rides again. Ironically, it does so by deploying principles established in Holmes’s free speech dissents.

To Budiansky’s credit, he draws attention to early evidence that free speech might wreak havoc on efforts to regulate the market. In Leach v. Carlile, decided in 1922, the court heard the appeal of a patent medicine inventor promising to cure “weakened manhood.” Seven justices upheld the Postmaster General’s decision to exclude the dubious advertisements from the mails. But Holmes and Brandeis dissented, contending that the Postmaster General “abridged freedom of speech on the part of the sender.” Budiansky does not say so, but Holmes’s obscure Leach dissent is now nearly as prophetic as his dissent in Abrams. Holmes anticipated the use of free speech claims not to vindicate democracy but to disrupt it.

Holmes may have been a prophet of modern liberalism, as Menand and Wilson contend. But that liberalism turned out to be riven with internal contradictions. Holmes leaves us with the same tensions between democracy and freedom that he once seemed to have resolved.

Budiansky is not a jurist. He aims to establish what he calls a “sympathetic view” of Holmes not as a theorist or a symbol but as a person. And here he is quite successful. Budiansky’s Holmes had a sense of humor, one that was “mordantly focused on the folly of human overimportance.” Asked to describe his colleague John Harlan, Holmes said that “Harlan’s mind was like a vise, the jaws of which did not meet.” Holmes had a blue streak, too. Writing opinions, he told his law clerks, was “just like pissing: you apply a pressure … and out it comes.” Late in his life, when his law clerks had begun to read to him, he asked a mortified clerk to clarify the plot of one especially baroque novel: “Am I to understand that the young man fucked his mother-in-law?”

Holmes’s law clerks, or secretaries, as they were known in Holmes’s day, offered more meaningful friendships than his fellow justices. They were a parade of Harvard Law School’s best new graduates, including such figures as future attorney general Francis Biddle, Alger Hiss, and New Deal power broker Thomas Corcoran. Yet the never-ending supply of bright young men was a mixed blessing. Learned Hand, the great mid-century New York judge, later regretted that he and other young admirers “indulged themselves so much in flattery” of the justice. “As I look back on it,” Hand reflected, “we all did exploit him by playing on his vanity.” With such adulation all around, it is little wonder that Holmes never confronted the tensions in his legal philosophy. Self-satisfaction hindered serious inquiry. The cult of Holmes rewarded the justice for producing apt epigrams as if they were original ideas.

His was in many ways a sheltered and cosseted life. Budiansky is refreshingly candid about the importance of Holmes’s wealth to the figure he cut in life. By the late 1890s, Holmes’s inheritances supplemented a decent salary to produce an income of about $20,000 per year, or 30 times the average household income in the state. In today’s terms, it was as if Holmes had an investment income of $2.3 million each year, an annual return on a net worth of around $50 million. His household expenses, which Budiansky elaborates in great detail, amounted to twice his salary each month. The justice enjoyed expensive clothing and good shoes, champagne and other fine wines. His wife, Fanny, along with faithful maids, butlers, drivers, and messengers, helped arrange it all to his liking.

We don’t find history’s heroes where we used to. Less and less do we expect Olympian detachment on the Supreme Court. The court today is beset by partisan divides in a way that Holmes’s generation could barely have understood. Perhaps it should surprise no one, then, that Holmes seems to have few answers to the pressing legal questions of our time. Budiansky tries to suggest otherwise. But the argument is not as compelling as it once was. A smaller, less magisterial Holmes may be just about right.