OLIVER WENDELL HOLMES JR. (/ˈhoʊmz/ ; March 8, 1841 – March 6,
1935) was an American jurist who served as an Associate
Justice of the
Supreme Court of the
United States from 1902 to 1932, and as Acting
Chief Justice of the
United States from January–February 1930. Noted
for his long service, his concise and pithy opinions and his deference
to the decisions of elected legislatures , he is one of the most
United States Supreme Court justices in history,
particularly for his "clear and present danger " opinion for a
unanimous Court in the 1919 case of Schenck v.
United States , and is
one of the most influential American common law judges, honored during
his lifetime in Great Britain as well as the United States. Holmes
retired from the Court at the age of 90 years, making him the oldest
Justice in the Supreme Court's history. He also served as an Associate
Justice and as
Chief Justice on the
Massachusetts Supreme Judicial
Court , and was Weld Professor of
Law at the
Harvard Law School , of
which he was an alumnus.
Profoundly influenced by his experience fighting in the American
Civil War , Holmes helped move American legal thinking towards legal
realism , as summed up in his maxim: "The life of the law has not been
logic; it has been experience." Holmes espoused a form of moral
skepticism and opposed the doctrine of natural law , marking a
significant shift in American jurisprudence. As he wrote in one of his
most famous opinions, his dissent in Abrams v.
United States (1919),
he regarded the
United States Constitution as "an experiment, as all
life is an experiment" and believed that as a consequence "we should
be eternally vigilant against attempts to check the expression of
opinions that we loathe and believe to be fraught with death." During
his tenure on the Supreme Court, to which he was appointed by
Theodore Roosevelt , he supported efforts for economic
regulation and advocated broad freedom of speech under the First
Amendment . These positions as well as his distinctive personality and
writing style made him a popular figure, especially with American
progressives . His jurisprudence influenced much subsequent American
legal thinking, including judicial consensus supporting New Deal
regulatory law, and influential schools of pragmatism , critical legal
studies , and law and economics . He was one of only a handful of
justices to be known as a scholar;
The Journal of Legal Studies has
identified Holmes as the third most cited American legal scholar of
the 20th century.
* 1 Early life
* 1.1 Civil War
* 2 Legal career
* 2.1 Lawyer and state judge
* 2.2 The Common
* 2.3 State court judge
* 3 Supreme Court
* 3.1 Overview
* 3.2 Noteworthy rulings
* 3.2.1 Otis v. Parker
* 3.2.2 Schenck v.
* 3.2.3 Abrams v.
* 3.2.4 Silverthorne Lumber Co. v.
Buck v. Bell
* 4 Jurisprudential contributions
* 4.1 Critique of formalism
* 4.3 Reputation as a dissenter
* 5 Speeches and letters
* 5.1 Speeches
* 5.2 Letters
* 6 Retirement, death, honors and legacy
* 7 Clerks
* 8 In popular culture
* 9 See also
* 10 References
* 11 External links
Holmes was born in
Massachusetts , to the prominent writer
Oliver Wendell Holmes Sr. and abolitionist Amelia Lee
Jackson. Dr. Holmes was a leading figure in
Boston intellectual and
literary circles, Mrs. Holmes was connected to the leading families;
Henry James Sr.,
Ralph Waldo Emerson and other transcendentalists were
family friends. Known as "Wendell" in his youth, Holmes, Henry James
Jr. and William James became lifelong friends. Holmes accordingly grew
up in an atmosphere of intellectual achievement, and early formed the
ambition to be a man of letters like Emerson. While still in Harvard
College he wrote essays on philosophic themes, and asked Emerson to
read his attack on Plato's idealist philosophy. Emerson famously
replied, "If you strike at a king, you must kill him." He supported
the Abolitionist movement that thrived in
Boston society during the
1850s. At Harvard, he was a member of the Hasty Pudding and the
Porcellian Club , both of which his father had also been a member. In
the Pudding, he served as Secretary and Poet, as his father also had.
He enlisted in the
Massachusetts militia in the spring of 1861, when
the president first called for volunteers following the firing on Fort
Sumter, but returned briefly to
Harvard College to participate in
commencement exercises. In the summer of 1861 with his father's help
he obtained a lieutenant's commission in the Twentieth Massachusetts
Volunteer Infantry. Holmes's early life was described in detail by
Mark DeWolfe Howe,
Justice Oliver Wendell Holmes – The Shaping
Years, 1841–1870 (1957).
Daguerreotype showing Holmes in his
During his senior year of college, at the outset of the American
Civil War , Holmes enlisted in the fourth battalion, Massachusetts
militia, then received a commission as first lieutenant in the
Twentieth Regiment of
Massachusetts Volunteer Infantry . He saw much
action, taking part in the
Peninsula Campaign , the Battle of
Fredricksburg and the Wilderness , suffering wounds at the Battle of
Ball\'s Bluff , Antietam , and Chancellorsville , and suffered from a
near-fatal case of dysentery. Holmes particularly admired and was
close to his fellow officer in the 20th Massachusetts, Henry Livermore
Abbott . Holmes rose to the rank of lieutenant colonel, but eschewed
promotion in his regiment and served on the staff of the VI Corps
during the Wilderness Campaign. Abbott took command of the regiment in
his place, and was later killed.
Holmes is said to have shouted to Lincoln to take cover during the
Battle of Fort Stevens , although this is commonly regarded as
apocryphal. Holmes himself expressed uncertainty about who had
warned Lincoln ("Some say it was an enlisted man who shouted at
Lincoln; others suggest it was General Wright who brusquely ordered
Lincoln to safety. But for a certainty, the 6 foot 4 inch Lincoln, in
frock coat and top hat, stood peering through field glasses from
behind a parapet at the onrushing rebels....") and other sources
state he likely was not present on the day Lincoln visited Fort
Holmes received a brevet (honorary) promotion to colonel in
recognition of his services during the war. He retired to his home in
Boston after his three-year enlistment ended in 1864, weary and ill,
his regiment disbanded.
LAWYER AND STATE JUDGE
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr. about 1872, age 31
In the summer of 1864, Holmes returned to the family home in Boston,
wrote poetry, and debated philosophy with his friend William James,
pursuing his debate with philosophic idealism, and considered
reenlisting. But by the fall, when it became clear that the war would
soon end, Holmes enrolled in the
Harvard Law School , "kicked into the
law" by his father, as he later recalled. He attended lectures there
for a single year, reading extensively in theoretical works, and then
clerked for a year in his cousin Robert Morse's office. He was
admitted to the bar in 1866, and after a long visit to London, to
complete his education, went into law practice in Boston. He joined a
small firm, and in 1872 married a childhood friend, Fanny Bowditch
Dixwell, buying a farm in Mattapoisett,
Massachusetts , the following
year. Their marriage lasted until her death on April 30, 1929. They
never had children together. They did adopt and raise an orphaned
cousin, Dorothy Upham. Fanny disliked Beacon Hill society, and devoted
herself to embroidery. She was described as devoted, witty, wise,
tactful, and perceptive.
Whenever he could, Holmes visited London during the social season of
spring and summer, and during the years of his work as a lawyer and
judge in Boston, he formed romantic friendships with English women of
the nobility, with whom he corresponded while at home in the United
States. The most important of these was his friendship with the
Anglo-Irish Claire Castletown, the Lady Castletown, whose family
estate Doneraile he visited several times, and with whom he may have
had a brief affair. He formed his closest intellectual friendships
with British men, and became one of the founders of what was soon
called the "sociological" school of jurisprudence in Great Britain,
followed a generation later by the "legal realist" school in America.
Holmes practiced admiralty law and commercial law in
fifteen years. It was during this time that he did his principal
scholarly work, serving as an editor of the new American
reporting decisions of state supreme courts, and preparing a new
edition of Kent's Commentaries, which served practitioners as a
compendium of case law, at a time when official reports were scarce
and difficult to obtain. He summarized his hard-won understanding in a
series of lectures, collected and published as The Common
Law in 1881.
THE COMMON LAW
Law has been continuously in print since 1881, and remains
an important contribution to jurisprudence. The book also remains
controversial, for Holmes begins by rejecting various kinds of
formalism in law. In his earlier writings he had expressly denied the
utilitarian view that law was a set of commands of the sovereign,
rules of conduct that became legal duties. He rejected as well the
views of the
German idealist philosophers, whose views were then
widely held, and the philosophy taught at Harvard, that the opinions
of judges could be harmonized in a purely logical system. In the
opening paragraphs of the book, he famously summarized his own view of
the history of the common law:
"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, and even
the prejudices which judges share with their fellow-men, have had a
good deal more to do than 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
In the book, Holmes set forth his view that the only source of law,
properly speaking, was a judicial decision enforced by the state.
Judges decided cases on the facts, and then wrote opinions afterward
presenting a rationale for their decision. The true basis of the
decision was often an "inarticulate major premise," however. A judge
was obliged to choose between contending legal arguments, each posed
in absolute terms, and the true basis of his decision was sometimes
drawn from outside the law, when precedents were lacking or were
The common law evolves because civilized society evolves, and judges
share the common preconceptions of the governing class. These views
endeared Holmes to the later advocates of legal realism , and made him
one of the early founders of law and economics jurisprudence. The
Law is the only major scholarly work written by a practicing
attorney. Holmes famously contrasted his own scholarship with the
abstract doctrines of
Christopher Columbus Langdell , dean of Harvard
Law School , who viewed the common law as a self-enclosed set of
doctrines. Holmes viewed Langdell's work as akin to the German
philosophic idealism he had for so long resisted, opposing it with his
own scientific materialism.
STATE COURT JUDGE
"We cannot all be
Kant , but we all want happiness.
And happiness, I am sure from having known many successful men, cannot
be won simply by being counsel for great corporations and having an
income of fifty thousand dollars. An intellect great enough to win the
prize needs other food beside success. The remoter and more general
aspects of the law are those which give it universal interest. It is
through them that you not only become a great master in your calling,
but connect your subject with the universe and catch an echo of the
infinite, a glimpse of its unfathomable process, a hint of the
universal law." Oliver Wendell Holmes Jr, "The Path of the Law", 10
Harvard Law Review 457, 478 (1897)
Holmes was considered for a federal court judgeship in 1878 by
Rutherford B. Hayes , but
Massachusetts Senator George
Frisbie Hoar persuaded Hayes to nominate another candidate. In the
fall of 1882, Holmes became a professor at
Harvard Law School ,
accepting an endowed professorship which had been created for him,
largely through the efforts of
Louis D. Brandeis
Louis D. Brandeis . On Friday December
8, 1882, Supreme Judicial Court of
Massachusetts associate justice
Otis Lord decided to resign, however, giving outgoing Republican
John Davis Long a chance to appoint his successor, if it
could be done before the
Massachusetts Governor\'s Council adjourned
at 3 pm. Holmes' partner George Shattuck proposed him for the vacancy,
Holmes quickly agreed, and there being no objection by the Council,
took the oath of office on December 15, 1882. His resignation, after
only a few weeks and without notice, was resented by the law school
faculty, giving rise to persisting estrangement. On August 2, 1899,
Chief Justice of the
Massachusetts Supreme Judicial
Court following the death of
Walbridge A. Field
Walbridge A. Field .
During his service on the
Massachusetts court, Holmes continued to
develop and apply his views of the common law, usually following
precedent faithfully. He issued few constitutional opinions in these
years, but carefully developed the principles of free expression as a
common-law doctrine. He departed from precedent to recognize workers'
right to organize trade unions and to strike, as long as no violence
was involved, and coercion was not exerted through impermissible means
such as secondary boycotts, stating in his opinions that fundamental
fairness required that workers be allowed to combine to compete on an
equal footing with employers. He continued to give speeches and to
write articles that added to or extended his work on the common law,
most notably "Privilege, Malice and Intent", in which he presented
his view of the pragmatic basis of the common-law privileges extended
to speech and the press, which could be defeated by a showing of
malice, or of specific intent to harm. This argument would later be
incorporated into his famous opinions concerning the First Amendment.
He also published an address, "
The Path of the Law ," in which he
enlarged upon his view of the law from the perspective of a
practitioner concerned for the interests of his client, who might be a
bad man unconcerned with moral absolutes.
SUPREME COURT JUSTICE
Holmes's Supreme Court nomination
On August 11, 1902, President
Theodore Roosevelt nominated Holmes to
a seat on the
United States Supreme Court vacated by
Gray , who had retired in July 1902 as a result of illness. The
nomination was made on the recommendation of Senator Henry Cabot Lodge
, the junior senator from Massachusetts, but was opposed by the senior
senator and chairman of the Senate Judiciary Committee, George Frisbie
Hoar . Hoar was a strenuous opponent of imperialism, and the legality
of the annexation of Puerto Rico and the Philippines was expected to
come before the Court. Lodge, like Roosevelt, was a strong supporter
of imperialism, which Holmes was expected to support as well. As a
result of Hoar's opposition, there was a delay in the vote for
confirmation, but on December 2, 1902, Roosevelt resubmitted the
nomination and Holmes was unanimously confirmed by the United States
Senate on December 4, receiving his commission the same day. On the
bench, Holmes did vote to support the administration's position
favoring the annexation of former Spanish colonies in the "Insular
Cases ." However, he later disappointed Roosevelt by dissenting in
Northern Securities Co. v.
United States , a major antitrust
prosecution; the majority of the court, however, did rule against
Holmes and sided with Theodore Roosevelt's belief that Northern
Securities violated the Sherman
Antitrust Act. The dissent by Holmes
permanently damaged his formerly close relationship with Theodore
Roosevelt. In the year of his appointment to the United States
Holmes was known for his pithy, short, and frequently quoted
opinions. In more than twenty-nine years on the Supreme Court bench,
he ruled on cases spanning the whole range of federal law. He is
remembered for prescient opinions on topics as widely separated as
copyright, the law of contempt, the antitrust status of professional
baseball, and the oath required for citizenship . Holmes, like most of
his contemporaries, viewed the Bill of Rights as codifying privileges
obtained over the centuries in English and American common law, and
was able to establish that view in numerous opinions of the Court. He
is considered one of the greatest judges in American history, and
embodies for many the traditions of the common law, which are now
Originalists who insist the text of the Constitution
trumps any common law precedents that depart from the original
understanding of its meaning.
From Taft's departure on February 3, 1930 until Charles Evans Hughes
took office on February 24, 1930, Holmes briefly acted as the Chief
Justice and presided over court sessions.
Otis V. Parker
Beginning with his first opinion for the Court, in Otis v. Parker,
Holmes declared that "due process of law ," the fundamental principle
of fairness, protected people from unreasonable legislation, but was
limited only to those fundamental principles enshrined in the common
law and did not protect most economic interests. A version of the
article that influenced Holmes's Abrams dissent
Schenck V. United States
In a series of opinions surrounding the World War I Espionage Act of
1917 and the Sedition Act of 1918, he held that the freedom of
expression guaranteed by federal and state constitutions simply
declared a common-law privilege for speech and the press, even when
those expressions caused injury, but that privilege would be defeated
by a showing of malice, or intent to do harm. Holmes came to write
three unanimous opinions for the Supreme Court that arose from
prosecutions under the 1917 Espionage Act because in an earlier case,
Baltzer v. United States, he had circulated a powerfully expressed
dissent, when the majority had voted to uphold a conviction of
immigrant socialists, who had circulated a petition criticizing the
draft. Apparently learning that he was likely to publish this dissent,
the Government (perhaps alerted by
Louis D. Brandeis
Louis D. Brandeis , newly
appointed by President
Woodrow Wilson ) abandoned the case, and it was
dismissed by the Court. The
Chief Justice then asked Holmes to write
opinions in which they could be unanimous, upholding convictions in
three similar cases, where there were jury findings that speeches or
leaflets were published with an intent to obstruct the draft, a crime
under the 1917 law. Although there was no evidence that the attempts
had succeeded, Holmes held for a unanimous Court that an attempt,
purely by language, could be prosecuted in cases where the expression,
in the circumstances in which it was uttered, posed a "clear and
present danger" of causing some harm that the legislature had properly
forbidden. In Schenck v.
United States , Holmes announced this
doctrine for a unanimous Court, famously declaring that the First
Amendment could not be understood to provide an absolute right, and
would not protect a person "falsely shouting fire in a theater and
causing a panic." Although much criticized, Schenck remains an
important precedent, and still governs cases in which expressions are
intended to cause harm, or threaten to cause imminent lawless action .
Abrams V. United States
Later that year, however, in Abrams v.
United States , Holmes was
again in dissent. The Wilson Administration was vigorously prosecuting
those suspected of sympathies with the recent
Russian Revolution , as
well as opponents of the war against Germany. The defendants in this
case were socialists and anarchists, recent immigrants from Russia who
opposed the apparent efforts of the
United States to intervene in the
Russian Civil War . They were charged with violations of the 1918
amendments to the Espionage Act which were known as the Sedition Act
of 1918, and which purported to make criticisms of the government and
the war effort a crime. Abrams and his co-defendants were charged with
distributing leaflets that in Yiddish called for a "general strike" to
protest the US intervention in Russia. A majority of the Court voted
to uphold the convictions and sentences of ten and twenty years, to be
followed by deportation. Holmes was moved to dissent. The majority
claimed to be following the precedents already set in Schenck and the
companion cases in which Holmes had written for the Court, but Holmes
insisted that the defendants' leaflets neither threatened to cause any
harm, nor showed the specific intent to hinder the war effort. Holmes
condemned the Wilson Administration's prosecution, and its insistence
on draconian sentences for the defendants in passionate language:
"Even if I am technically wrong and enough can be squeezed from these
poor and puny anonymities to turn the color of legal litmus paper ...
the most nominal punishment seems to be all that possibly could be
inflicted, unless the defendants are to be made to suffer, not for
what the indictment alleges, but for the creed that they avow... "
Holmes then went on to explain the importance of freedom of thought in
hen men have realized that time has upset many fighting faiths, they
may come to believe ... 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 can safely
be carried out. That, at any rate, is the theory of Constitution. It
is an experiment, as all life is an experiment.
In writing this dissent, Holmes may have been influenced by Zechariah
Chafee 's article "Freedom of Speech in War Time." Chafee had
criticized Holmes's opinion in Schenck for failing to express in more
detail and more clearly the common-law doctrines upon which he relied.
In his Abrams dissent, Holmes did elaborate somewhat on the decision
in Schenck, roughly along the lines that Chafee had suggested.
Although Holmes evidently believed that he was adhering to his own
precedent, some later commentators accused Holmes of inconsistency,
even of seeking to curry favor with his young admirers. In Abrams,
the majority opinion did rely on the clear-and-present-danger
formulation of Schenck, claiming that the leaflets showed the
necessary intent, and ignoring the point that they were unlikely to
have any effect. In later opinions, the Supreme Court departed from
this line of reasoning where the validity of a statute was in
question, adopting the principle that a legislature could properly
declare that some forms of speech posed a clear and present danger,
regardless of the circumstances in which they were uttered. Holmes
continued to dissent.
Silverthorne Lumber Co. V. United States
In 1920, in the case Silverthorne Lumber Co. v.
United States ,
Holmes ruled that any evidence obtained, even indirectly, from an
illegal search was inadmissible in court. He reasoned that otherwise,
police would have an incentive to circumvent the Fourth Amendment to
obtain derivatives of the illegally obtained evidence, so any evidence
resulting from this must be discouraged. This later became known as
the "fruit of the poisonous tree ".
Buck V. Bell
In 1927, Holmes wrote the 8–1 majority opinion in
Buck v. Bell case
that upheld the
Virginia Sterilization Act of 1924
Virginia Sterilization Act of 1924 and the forced
Carrie Buck who was claimed to be mentally defective.
Although later scholarship has shown the suit was collusive, and
Carrie Buck was probably of normal intelligence, the record before
the Supreme Court showed only that she had received a proper hearing
in which she was represented by a competent guardian, and was able to
press her suit in the federal courts. She apparently had received the
procedures required by due process of law in ample measure. The
argument made on her behalf was principally that the statute requiring
sterilization of institutionalized persons was unconstitutional,
itself a violation of what today is called "substantive due process."
Holmes repeated familiar arguments that statutes would not be struck
down if they appeared on their face to have a reasonable basis. In
support of his argument that the interest of "public welfare"
outweighs the interest of individuals in their bodily integrity, he
We have seen more than once that the public welfare may call upon the
best citizens for their lives. It would be strange if it could not
call upon those who already sap the strength of the State for these
lesser sacrifices, often not felt to be such by those concerned, to
prevent our being swamped with incompetence. It is better for all the
world, if instead of waiting to execute degenerate offspring for
crime, or to let them starve for their imbecility, society can prevent
those who are manifestly unfit from continuing their kind. The
principle that sustains compulsory vaccination is broad enough to
cover cutting the Fallopian tubes . Three generations of imbeciles
Although the opinion and eugenics remains controversial, the decision
in the case still stands.
Buck v. Bell was cited as a precedent by the
opinion of the court (part VIII) in
Roe v. Wade , but not in support
of abortion rights. To the contrary,
Justice Blackmun quoted it to
justify that the constitutional right to abortion isn't unlimited.
CRITIQUE OF FORMALISM
Holmes in his earliest writings established a lifelong belief that
the decisions of judges were consciously or unconsciously
result-oriented, and reflected the evolving mores of the class and
society from which judges were drawn. Holmes accordingly argued that
legal rules are not deduced through formal logic but rather emerge
from an active process of human self-government. He explored these
theories in his 1881 book The Common
Law . His philosophy represented
a departure from the prevailing jurisprudence of the time: legal
formalism , which held that law was an orderly system of rules from
which decisions in particular cases could be deduced. Holmes sought to
consciously reinvent the common law – to modernize it as a tool for
adjusting to the changing nature of modern life, as judges of the past
had done more or less unconsciously. He has been classed with the
philosophic pragmatists, although pragmatism is what he attributed to
the law, rather than his personal philosophy.
Central to his thought was the notion that the law, as it had evolved
in modern societies, concerned with the material results of a
defendant's actions. A judge's task was to decide which of two parties
before him would bear the cost of an injury. Holmes argued that the
evolving common law standard was that liability would fall upon a
person whose conduct reflected prudence of a "reasonable man." If a
construction worker throws a beam onto a crowded street:
…he does an act which a person of ordinary prudence would foresee
is likely to cause death..., and he is dealt with as if he foresaw it,
whether he does so in fact or not. If a death is caused by the act, he
is guilty of murder. But if the workman has a reasonable cause to
believe that the space below is a private yard from which everyone is
excluded, and which is used as a rubbish-heap, his act is not
blameworthy, and the homicide is a mere misadventure.
This "objective standard" adopted by common-law judges, Holmes
thought, reflected a shift in community standards , away from
condemnation of a person's act toward an impersonal assessment of its
value to the community. In the modern world, the advances made in
biology and the social sciences should allow a better conscious
determination of the results of individual acts and the proper measure
of liability for them. This belief in the pronouncements of science
concerning social welfare, although he later doubted its applicability
to law in many cases, accounts for his enthusiastic endorsement of
eugenics in his writings, and his opinion in the case of Buck v. Bell
In 1881, in The Common Law, Holmes brought together into a coherent
whole his earlier articles and lectures concerning the history of the
common law, judicial decisions in England and the United States, which
he interpreted from the perspective of a practicing lawyer. What
counted as law, to a lawyer, was what judges did in particular cases.
Law was what the state would enforce, through violence if necessary;
echoes of his experience in the Civil War were always present in his
writings. Judges decided where and when the force of the state would
be brought to bear, and judges in the modern world tended to consult
facts and consequences when deciding what conduct to punish. The
decisions of judges, viewed over time, determined the rules of
conduct, the legal duties, by which all were bound. Judges did not and
should not consult any external system of morality, certainly not a
system imposed by the Deity.
Holmes therefore brought himself into constant conflict with scholars
who believed that legal duties rested upon "natural law ," a moral
order of the kind invoked by Christian theologians and other
philosophic idealists. He believed instead "that men make their own
laws; that these laws do not flow from some mysterious omnipresence in
the sky, and that judges are not independent mouthpieces of the
infinite...." :49 "The common law is not a brooding omnipresence in
the sky...." Rather than a set of abstract, rational, mathematical,
or in any way unworldly set of principles, Holmes said that, "he
prophecies of what the courts will do in fact, and nothing more
pretentious, are what I mean by the law." :458
His belief that law, properly speaking, was a set of generalizations
from what judges had done in similar cases, determined his view of the
Constitution of the
United States . As a justice of the U.S. Supreme
Court, Holmes rejected the argument that the text of the Constitution
should be applied directly to cases that came before the court, as if
it were a statute. He shared with most of his fellow judges the belief
that the Constitution carried forward principles derived from the
common law, principles that continued to evolve in American courts.
The text of the Constitution itself, as originally understood, was not
a set of rules, but only a directive to courts to consider the body of
the common law when deciding cases that arose under the Constitution.
It followed that constitutional principles adopted from the common law
were evolving, as the law itself evolved: "A word is not a crystal,
transparent and unchanged, but the skin of a living thought...."
"General propositions do not decide concrete cases." Lochner v. New
York 198 U.S. 45 at 76 (1905) —
Justice Oliver Wendell Holmes,
"The provisions of the Constitution are not mathematical formulas
that have their essence in form, they are organic, living institutions
transplanted from English soil. Their significance is vital, not
formal; it is to be gathered not simply by taking the words and a
dictionary but by considering their origin and the line of their
Holmes also insisted on the separation of "ought" and "is," which are
obstacles in understanding the realities of the law. :457 "The law is
full of phraseology drawn from morals, and talks about rights and
duties, malice, intent, and negligence – and nothing is easier in
legal reasoning than to take these words in their moral sense." :458
:40 "Therefore nothing but confusion can result from assuming that the
rights of man in a moral sense are equally rights in the sense of the
Constitution and the law." :40 Holmes said, "I think our morally
tinted words have caused a great deal of confused thinking." :179
Nevertheless, in rejecting morality as a form of natural law outside
of human enactments, and superior to them, Holmes was not rejecting
moral principles that were the result of enforceable law. "The law is
the witness and external deposit of our moral life. Its history is the
history of the moral development of the race. The practice of it, in
spite of popular jests, tends to make good citizens and good men. When
I emphasize the difference between law and morals I do so with
reference to a single end, that of learning and understanding the
law." :457 Holmes insistence on the material basis of law, on the
facts of a case, has led some to characterize him as unfeeling,
George Washington University law professor Jeffrey Rosen
summarized Holmes' views this way: "Holmes was a cold and brutally
cynical man who had contempt for the masses and for the progressive
laws he voted to uphold."
REPUTATION AS A DISSENTER
Although Holmes did not dissent frequently – during his 29 years of
service, he wrote only 72 separate opinions, whereas he penned 852
majority opinions, his dissents were often prescient and acquired so
much authority that he became known as "The Great Dissenter." Chief
Justice Taft complained that "his opinions are short, and not very
SPEECHES AND LETTERS
Only Holmes's legal writings were readily available during his life
and in the first years after his death, but he confided his thoughts
more freely in talks, often to limited audiences, and more than two
thousand letters that have survived. Holmes's executor, John Gorham
Palfrey, diligently collected Holmes's published and unpublished
papers and donated them (and their copyrights) to Harvard
Law Professor Mark DeWolfe Howe undertook to edit the papers
and was authorized by the school to publish them and to prepare a
biography of Holmes. Howe published several volumes of correspondence,
beginning with Holmes's correspondence with Frederick Pollock , and a
volume of Holmes's speeches, before his untimely death. Howe's work
formed the basis of much subsequent Holmes scholarship.
Holmes's speeches were divided into two groups: public addresses,
which he gathered into a slim volume, regularly updated, that he gave
to friends and used as a visiting card, and less formal addresses to
men's clubs, dinners, law schools, and Twentieth Regiment reunions.
All of the speeches are reproduced in the third volume of The
Collected Works of
Justice Holmes. The public addresses are Holmes's
effort to express his personal philosophy in Emersonian, poetic terms.
They frequently advert to the Civil War and to death, and frequently
express a hope that personal sacrifice, however pointless it may seem,
serves to advance the human race toward some as-yet unforeseen goal.
This mysterious purpose explained the commitment to duty and honor
that Holmes felt deeply himself, and that he thought was the
birthright of a certain class of men. As Holmes stated at a talk upon
receiving an honorary degree from Yale:
Why should you row a boat race? Why endure long months of pain in
preparation for a fierce half-hour.... Does anyone ask the question?
Is there anyone who would not go through all it costs, and more, for
the moment when anguish breaks into triumph – or even for the glory
of having nobly lost? :473
In the 1890s, at a time when "scientific" anthropology that spoke of
racial differences was in vogue, his observations took on a bleakly
I rejoice at every dangerous sport which I see pursued. The students
at Heidelberg, with their sword-slashed faces, inspire me with sincere
respect. I gaze with delight upon our polo-players. If once in a while
in our rough riding a neck is broken, I regard it not as a waste, but
as a price well paid for the breeding of a race fit for headship and
This talk was widely reprinted and admired at the time, and may have
contributed to the popular name given by the press to the 1st United
States Volunteer Cavalry (the "Rough Riders") during the
Spanish–American War .
Many of Holmes's closest male friends were in England and he
corresponded with them regularly and at length, speaking usually of
his work. Letters to friends in England such as
Harold Laski and
Frederick Pollock contain frank discussion of his decisions and his
fellow justices. In the United States, letters to male friends Morris
R. Cohen ,
Lewis Einstein , Felix Frankfurter, and Franklin Ford are
similar, although the letters to Frankfurter are especially personal.
Holmes's correspondence with women in Great Britain and the U.S. was
at least as extensive, and in many ways more revealing, but these
series of letters have not been published. An extensive selection of
letters to Claire Castletown, in Ireland, is included in Honorable
Justice, The Life of Oliver Wendell Holmes. These letters are closer
to Holmes's conversation, and cast light upon the style he adopted in
judicial opinions, which were often designed to read aloud.
In a letter to a contemporary, Holmes made this comment on
international comparisons: "Judge not a people by the ferocity of its
men, but by the steadfastness of its women."
RETIREMENT, DEATH, HONORS AND LEGACY
1978 postage stamp issued by the U.S. Post Office to commemorate
Oliver Wendell Holmes Jr.
Oliver Wendell Holmes Jr.
Holmes was widely admired during his last years, and on his ninetieth
birthday was honored on one of the first coast-to-coast radio
broadcasts, during which the Chief Justice, the Dean of Yale Law
School, and the president of the American Bar Association read
encomia; the Bar Association presented him with a gold medal. Notably,
Alger Hiss clerked for Holmes during his last year on the Court.
Holmes served on the court until January 12, 1932, when his brethren
on the court, citing his advanced age, suggested that the time had
come for him to step down. By that time, at 90 years of age, he was
the oldest justice to serve in the court's history. On his
ninety-second birthday, newly inaugurated President Franklin Delano
Roosevelt and his wife Eleanor called on Holmes at his house in
Holmes died of pneumonia in
Washington, D.C. in 1935, two days short
of his 94th birthday. In his will, Holmes left his residuary estate to
United States government (he had earlier said that "Taxes are what
we pay for civilized society" in Compañia General de Tabacos de
Filipinas vs. Collector of Internal Revenue, 275 U.S. 87, 100 (1927).)
After his death, his personal effects included his Civil War Officer's
uniform still stained with his blood and 'torn with shot' as well as
the carefully wrapped Minié balls that had wounded him three times in
separate battles. He was buried in
Arlington National Cemetery
Arlington National Cemetery .
United States Postal Service honored Holmes with a Prominent
Americans series (1965–1978) 15¢ postage stamp .
Holmes's papers, donated to
Harvard Law School , were kept closed for
many years after his death, a circumstance that gave rise to somewhat
fanciful accounts of his life.
Catherine Drinker Bowen
Catherine Drinker Bowen 's
fictionalized biography Yankee from Olympus was a long-time
bestseller, and the 1951
Hollywood motion picture The Magnificent
Yankee was based on a biography of Holmes by
Francis Biddle , who had
been one of his secretaries. Much of the scholarly literature
addressing Holmes's opinions was written before much was known about
his life, and before a coherent account of his views was available.
Law Library eventually relented, and made available to
scholars the extensive Holmes papers, collected and annotated by Mark
DeWolfe Howe, who died before he was able to complete his own
biography of the justice. In 1989, the first full biography based on
Holmes's papers was published, and several other biographies have
followed. Congress established the "Holmes Devise" and the funds he
left to the
United States were used to create a garden at the Supreme
Court's building, and to publish an edition of his collected works.
Holmes\' summer house in Beverly,
Massachusetts , was designated a
National Historic Landmark in 1972, recognition for his contributions
to American jurisprudence.
Justice Holmes was an honorary member of the Connecticut Society of
the Cincinnati .
"Many secretaries formed close friendships with one another," wrote
Tony Hiss, son of Alger Hiss, about the special "club" of clerks of
Oliver Wendell Holmes, Jr. They included:
* Robert M. Benjamin (later, lawyer for an appeal by Alger Hiss)
Laurence Curtis , U.S. Representative
Alger Hiss , president of the Carnegie Endowment for International
Peace and alleged Soviet spy
Donald Hiss , partner, Covington the novels portray the battles of
Ball\'s Bluff and Antietam , in both of which the young Lieutenant
Holmes was wounded in action.
* The 1960s television sitcom ,
Green Acres starred
Eddie Albert as
a character named "Oliver Wendell Douglas", a
Manhattan "white shoe"
lawyer who gives up the law to become a farmer.
* Demographics of the Supreme Court of the
* Freedom for the Thought That We Hate: A Biography of the First
* List of Justices of the Supreme Court of the
* List of law clerks of the Supreme Court of the
List of U.S. Supreme Court Justices by time in office
Prediction theory of law
* List of people on the cover of Time Magazine: 1920s – 15 Mar.
Scepticism in law
Scepticism in law
United States Supreme Court cases during the Fuller Court
United States Supreme Court cases during the Hughes Court
United States Supreme Court cases during the Taft Court
United States Supreme Court cases during the White Court
* ^ Supporting this connection is his brief membership in the
Metaphysical Club which met in the 1879s, and included Henry
and William James, and the philosopher Charles Peirce.Menand, Louis
(2002). The Metaphysical Club: A Story of Ideas in America.
* ^ "Federal Judicial Center: Oliver Wendell Holmes". 2009-12-11.
* ^ A B C D Holmes, Oliver Wendell Jr. (1881). The Common Law. I.
Little, Brown and Company
Little, Brown and Company .
* ^ Abrams v. United States, 250 U.S. 616, 630 (1919).
* ^ Louis Menand, ed., Pragmatism: A Reader New York: Vintage
Books, 1997, pp. xxix.
* ^ Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars".
Journal of Legal Studies. 29 (1): 409–426. doi :10.1086/468080 .
* ^ Sheldon Novick, Honorable Justice: The Life of Oliver Wendell
Holmes, Little, Brown and Company, 1989, p. 26.
* ^ Novick pp. 34–35.
James M. McPherson , Battle Cry of Freedom . (New York, 1988)
* ^ James G. Randall and Richard N. Current, Lincoln the President:
Last Full Measure (New York, 1955), 200.
Benjamin P. Thomas , Abraham Lincoln: A Biography (New York,
* ^ G. Edward White,
Justice Oliver Wendell Holmes:
Law and the
Inner Self. New York, 1993, 64–65.
* ^ "Oliver Wendell Homles Quote "Get Down, You Damn Fool" Warning
Abraham Lincoln at
Battle of Fort Stevens Shapell Manuscript
Foundation". Shapell.org. 1922-06-14. Retrieved 2016-03-10.
* ^ Sheldon Novick, Honorable Justice: The Life of Oliver Wendell
Holmes pp. 372, 422 n.
* ^ Sheldon Novick, Honorable Justice: The Life of Oliver Wendell
Holmes (1989, 2013), p. 96.
Justice Oliver Wendell Holmes:
Law and the Inner Self by G.
Edward White, p. 225
* ^ Novick Honorable Justice, pp. 207–220.
* ^ Mark DeWolfe Howe,
Justice Oliver Wendell Holmes: The Proving
Years, 1870-1882 (1963).
* ^ 8 Harv. L. Rev. 1 (1894)
* ^ A B C D E F Holmes, Oliver Wendell Jr. (25 March 1897). "The
Path of the Law".
Harvard Law Review . 10 (8): 457–478. doi
JSTOR 1322028 . Retrieved 28 March 2014. at
* ^ J.A. Garraty, "Holmes's appointment to the Supreme Court," 22
New England Quarterly 469 (1951).
* ^ A B Northern Securities Co. v. U.S., 193 U.S. 197 (1904).
* ^ Wagner, Richard H. (2002). "A Falling Out: The Relationship
Between Oliver Wendell Holmes and Theodore Roosevelt". Journal of
Supreme Court History. 27 (2): 114–137. doi :10.1111/1540-5818.00039
* ^ Preface,"Honorable
Justice at Twenty-Five," in Sheldon Novick,
Honorable Justice: The Life of Oliver Wendell Holmes (2013)
* ^ Sheldon M. Novick, The Unrevised Holmes and Freedom of
Expression, 1991 Supreme Court Review p. 303 (1992)
* ^ Chafee, Zechariah (1919). "Freedom of Speech in Wartime".
Harvard Law Review . 32 (8): 932–973.
JSTOR 1327107 .
* ^ Ragan, Fred D. (1971). "
Justice Oliver Wendell Holmes, Jr.,
Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free
Speech: The First Year, 1919".
Journal of American History . 58 (1):
JSTOR 1890079 .
* ^ Thomas Healy, The Great Dissent: How Oliver Wendell Holmes
Changed His Mind – and Changed the History of Free Speech in America
* ^ Lombardo, Paul A. (2008). Three Generations, No Imbeciles:
Eugenics, the Supreme Court, and Buck v. Bell. Baltimore: Johns
Hopkins University Press . pp. 240–241 et al. ISBN 978-0-8018-9010-9
* ^ Gould, Stephen Jay (July 1984). "Carrie Buck\'s Daughter"
(PDF). Natural History. Retrieved 10 June 2014.
Buck v. Bell , 274 U.S. 200 (1927).
* ^ "
Roe v. Wade US
Law LII / Legal Information Institute".
Law.cornell.edu. Retrieved 2016-03-10.
* ^ A B Sutton, John (2001). Law/Society: Origins, Interactions,
Change. Pine Forge Press.
* ^ O.W. Holmes, "
Law in Science and Science in Law," 12 Harv. L.
Rev. 442 (1899); "The Path of the Law," 10 Harv. L. Rev. 457 (1897).
* ^ A B C Biddle, Francis (1960).
Justice Holmes, Natural
the Supreme Court. New York: Macmillan. Retrieved 10 June 2014.
* ^ Southern Pacific Co. v. Jensen, 244 U.S. 205, 222 (1917)
* ^ Towne v Eisner, 245 U.S. 418, 425 (1918)
* ^ Gompers v United States, 233 U.S. 604, 610 (1914)
* ^ Holmes (19 January 1928) Letter to Frederick Pollack, rpt. in
Holmes (1997). Posner, Richard A., ed. The Essential Holmes:
Selections from the Letters, Speeches, Judicial Opinions, and Other
Writings of Oliver Wendell Holmes, Jr. Chicago: University of Chicago
Press . ISBN 0226675548 . Retrieved 10 June 2014.
Jeffrey Rosen , "Brandeis\'s Seat, Kagan\'s Responsibility".
New York Times, July 2, 2010. Accessed July 5, 2010.
* ^ "Books: The Great Dissenter". Time . May 8, 1944. Retrieved May
* ^ Oliver Wendell Holmes Jr.; Frederick Pollack; Mark DeWolfe
Howe. Holmes-Pollock Letters: The Correspondence of Mr
and Sir Frederick Pollock, 1874–1932, Two Volumes in One. Amazon.com
(2nd ed.). ASIN 0674405501 . ISBN 9780674405509 . CS1 maint: ASIN uses
ISBN (link )
* ^ Oliver Wendell Holmes, Jr.; Mark DeWolfe Howe. "The Occasional
Justice Oliver Wendell Holmes". Hup.harvard.edu. Retrieved
* ^ "The Collected Works of
Justice Holmes: Complete Public
Writings and Selected Judicial Opinions of Oliver Wendell Holmes,
Holmes, Novick, Griswold". Press.uchicago.edu. Retrieved 2016-03-10.
* ^ The Collected Papers of
Justice Holmes, vol. 3.
* ^ "The Soldier's Faith" (1895) in The Collected Works of Justice
Holmes, vol. 3, pp. 486, 489
* ^ "Plunkett Lake Press". Plunkett Lake Press. 1989-08-20.
* ^ "Welcome to the Oliver Wendell Holmes Digital Suite".
Library.law.harvard.edu. Retrieved 2016-03-10.
* ^ "Historical Information: Biography of Oliver Wendell Holmes,
Justice of the Supreme Court of the United States".
Arlington National Cemetery. Arlingtoncemetery.org. Accessed July 5,
* ^ Sheldon Novick, Honorable Justice: The Life of Oliver Wendell
Holmes (1989, 2013).
* ^ Holmes (1995). Novick, Sheldon M., ed. The Collected Works of
Justice Holmes (The Holmes Devise Memorial ed.). University of Chicago
Press. ISBN 0226349667 .
* ^ "NHL summary description for Oliver Wendell Holmes House".
National Park Service. Retrieved 2014-11-16.
* ^ Hiss, Tony (1999). The View from Alger\'s Window: A Son\'s
Memoir. Alfred E. Knopf. pp. 16 ("Prossy"), 35 (courtship), 36
("Hill"), 37 (Quakerisms, Roberta Murray Fansler), 89 (Buttenweiser,
Bernard), 132–134 (clerks). Retrieved 29 October 2017.
* Alschuler, Albert W. (2000).
Law Without Values: The Life, Work,
and Legacy of
Justice Holmes. Chicago: University of Chicago Press.
ISBN 0-226-01520-3 .
* Collins, Ronald K.L. , ed., The Fundamental Holmes: A Free Speech
Chronicle and Reader (Cambridge University Press, 2010)
* This article incorporates text from a publication now in the
public domain : Chisholm, Hugh, ed. (1911). "Holmes, Oliver Wendell".
Encyclopædia Britannica . 13 (11th ed.). Cambridge University Press.
* Frankfurter, Felix (1916). "The Constitutional Opinions of Justice
Harvard Law Review . 29 (6): 683–702. doi :10.2307/1326500
JSTOR 1326500 .
* Goodwin, Doris Kearns (2005). Team of Rivals: The Political Genius
Abraham Lincoln . New York:
Simon & Schuster
Simon & Schuster . ISBN 0-7432-7075-4 .
* Healy, Thomas (2013). The Great Dissent: How Oliver Wendell Holmes
Changed His Mind – and Changed the History of Free Speech in
America. New York:
Metropolitan Books . ISBN 0-805-09456-3 .
* Holmes, Oliver Wendell (1995). The Collected Works of Justice
Holmes (S. Novick, ed.). Chicago:
University of Chicago Press
University of Chicago Press . ISBN
* Novick, Sheldon M. (2013) . Honorable Justice: The Life of Oliver
Wendell Holmes. Boston:
Little, Brown and Company
Little, Brown and Company ; revised and
updated eBook edition Plunkett Lake Press. ISBN 0-316-61325-8 .
External link in publisher= (help )
* Posner, Richard A. , ed. (1992). The Essential Holmes: Selections
from the Letters, Speeches, Judicial Opinions and Other Writings of
Oliver Wendell Holmes, Jr. University of Chicago Press. ISBN
* Abraham, Henry J., Justices and Presidents: A Political History of
Appointments to the Supreme Court. 3d. ed. (New York: Oxford
University Press , 1992). ISBN 0-19-506557-3 .
* Brown, Richard Maxwell, "No Duty to Retreat: Violence and Values
in American History and Society." (
University of Oklahoma Press ,
Norman Publishing Division of the University, by arrangement with
Oxford University Press, Inc. 1991). ISBN 0-8061-2618-3
* Cushman, Clare, The Supreme Court Justices: Illustrated
Biographies,1789-1995 (2nd ed.) (
Supreme Court Historical Society ),
Congressional Quarterly Books, 2001) ISBN 1-56802-126-7 ; ISBN
* Frank, John P., The Justices of the
United States Supreme Court:
Their Lives and Major Opinions (Leon Friedman and Fred L. Israel,
Chelsea House Publishers: 1995) ISBN 0-7910-1377-4 , ISBN
* Hall, Kermit L., ed., The Oxford Companion to the Supreme Court of
the United States. New York: Oxford University Press, 1992. ISBN
0-19-505835-6 ; ISBN 978-0-19-505835-2 .
* Lerner, Max, ed., The Mind and Faith of
Justice Holmes: His
Speeches, Essays, Letters and Judicial Opinions. Boston: Little, Brown
and Company , 1945.
* Lewis, Anthony , Freedom for the Thought That We Hate: A Biography
of the First Amendment (Basic ideas. New York: Basic Books, 2007).
ISBN 0-465-03917-0 .
* Martin, Fenton S. and Goehlert, Robert U., The U.S. Supreme Court:
A Bibliography, (
Congressional Quarterly Books, 1990). ISBN
* Menand, Louis , The Metaphysical Club: A Story of Ideas in America
(New York: Farrar, Straus and Giroux). 546 pp.
* Urofsky, Melvin I., The Supreme Court Justices: A Biographical
Dictionary (New York:
Garland Publishing 1994