Oliver Wendell Holmes Jr.
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Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist and legal scholar who served as an
associate justice of the Supreme Court of the United States An associate justice of the Supreme Court of the United States is any member of the Supreme Court of the United States other than the chief justice of the United States. The number of associate justices is eight, as set by the Judiciary Act of 18 ...
from 1902 to 1932.Holmes was Acting Chief Justice of the United States in February 1930. He is one of the most widely cited U.S. Supreme Court justices and most influential American
common law In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
judges in history, noted for his long service, pithy opinions—particularly those on
civil liberties Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties may ...
and American constitutional democracy—and deference to the decisions of elected
legislatures A legislature is an assembly with the authority In the fields of sociology Sociology is a social science that focuses on society, human social behavior, patterns of Interpersonal ties, social relationships, social interaction, and a ...
. Holmes retired from the court at the age of 90, an unbeaten record for oldest justice on the Supreme Court.John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
was only 8 months younger when he retired on April 12, 2010. He previously served as a Brevet Colonel in the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
, in which he was wounded three times, as an associate justice and chief justice of the
Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the court of last resort, highest court in the Commonwealth (U.S. state), Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the di ...
, and as Weld Professor of Law at his alma mater,
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing syste ...
. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.Louis Menand, ed., ''Pragmatism: A Reader''. New York: Vintage Books, 1997, pp. xxix. During his tenure on the U.S. Supreme Court, to which he was appointed by President
Theodore Roosevelt Theodore Roosevelt Jr. ( ; October 27, 1858 – January 6, 1919), often referred to as Teddy or by his initials, T. R., was an American politician, statesman, soldier, conservationist, naturalist, historian, and writer who served as the 26t ...
in 1902, he supported the constitutionality of state
economic regulation Regulatory economics is the economics Economics () is the social science that studies the Production (economics), production, distribution (economics), distribution, and Consumption (economics), consumption of goods and services. Econo ...
and came to advocate broad
freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been ...
under the First Amendment, after, in '' Schenck v. United States'' (1919), having upheld for a unanimous court criminal sanctions against draft protestors with the memorable maxim that " free speech would not protect a man in falsely shouting fire in a theatre and causing a panic" and formulating the groundbreaking " clear and present danger" test. But later that same year, in his famous dissent in '' Abrams v. United States'' (1919), he wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.... That, at any rate, is the theory of our
Constitution A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity A polity is an identifiable Politics, political entity – a group of people with a collective identity, who ...
. It is an experiment, as all life is an experiment." He added that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death...." He was one of only a handful of justices known as a scholar; ''
The Journal of Legal Studies ''The Journal of Legal Studies'' is a law journal published by the University of Chicago Press focusing on interdisciplinary academic research in law and legal institutions. It emphasizes social science approaches, especially those of economics, ...
'' has identified Holmes as the third-most cited American legal scholar of the 20th century. Holmes was a legal realist, as summed up in his maxim, "The life of the law has not been logic: it has been experience", and a moral skeptic opposed to the doctrine of
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be Deductive reasoning, deduced and applied independently of positive law ( ...
. His jurisprudence and academic writing influenced much subsequent American legal thinking, including the judicial consensus upholding
New Deal The New Deal was a series of programs, Public works, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the C ...
regulatory law and the influential American schools of
pragmatism Pragmatism is a philosophical tradition that considers words and thought as tools and instruments for prediction, problem solving, and action (philosophy), action, and rejects the idea that the function of thought is to describe, represent, ...
,
critical legal studies Critical legal studies (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1 ...
, and
law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economics, Economic concepts are used to explain the effec ...
.


Early life

Holmes was born in
Boston Boston (), officially the City of Boston, is the capital city, state capital and List of municipalities in Massachusetts, most populous city of the Commonwealth (U.S. state), Commonwealth of Massachusetts, as well as the cultural and financ ...
,
Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing systems, məhswatʃəwiːsət'' English: , ), officially the Commonwealth of Massachusetts, is the most populous U.S. state, state in the New England ...
, to the prominent writer and physician Oliver Wendell Holmes Sr. and abolitionist Amelia Lee Jackson. Both of his parents were of entirely English descent, and all his ancestors had come to
North America North America is a continent in the Northern Hemisphere and almost entirely within the Western Hemisphere. It is bordered to the north by the Arctic Ocean, to the east by the Atlantic Ocean, to the southeast by South America and the Car ...
from
England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It shares land borders with Wales to its west and Scotland to its north. The Irish Sea lies northwest and the Celtic Sea to the southwest. It is separa ...
during the early colonial period as part of the Puritan migration to New England. 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 Ralph Waldo Emerson (May 25, 1803April 27, 1882), who went by his middle name Waldo, was an American essayist, lecturer, philosopher, abolitionism, abolitionist, and poet who led the Transcendentalism, transcendentalist movement of the mid-19th ...
, and other
transcendentalists Transcendentalism is a philosophical movement that developed in the late 1820s and 1830s in New England. "Transcendentalism is an American literary, political, and philosophical movement of the early nineteenth century, centered around Ralph Wald ...
were family friends. Known as "Wendell" in his youth, Holmes became lifelong friends with the brothers
William James William James (January 11, 1842 – August 26, 1910) was an List of American philosophers, American philosopher, historian, and psychologist, and the first educator to offer a psychology course in the United States. James is considered to ...
and
Henry James Henry James ( – ) was an American-British author. He is regarded as a key transitional figure between literary realism and literary modernism, and is considered by many to be among the greatest novelists in the English language. He was the ...
Jr. Holmes accordingly grew up in an atmosphere of intellectual achievement and early on formed the ambition to be a man of letters like Emerson. While still in
Harvard College Harvard College is the undergraduate education, undergraduate college of Harvard University, an Ivy League research university in Cambridge, Massachusetts. Founded in 1636, Harvard College is the original school of Harvard University, the oldest ...
he wrote essays on philosophic themes and asked Emerson to read his attack on
Plato Plato ( ; grc-gre, wikt:Πλάτων, Πλάτων ; 428/427 or 424/423 – 348/347 BC) was a Greeks, Greek philosopher born in Athens during the Classical Greece, Classical period in Ancient Greece. He founded the Platonist school of thou ...
'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 Hasty pudding is a pudding or porridge of cereal, grains cooked in milk or water. In the United States, it often refers specifically to a version made primarily with ground maize, ("Indian") corn, and it is mentioned in the lyrics of "Yankee Doodl ...
and the Porcellian Club; his father had also been a member of both clubs. In the Pudding, he served as Secretary and Poet, as had his father. Holmes graduated
Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country Continental United States, p ...
from Harvard in 1861, and, in the spring of that year, after President
Abraham Lincoln Abraham Lincoln ( ; February 12, 1809 – April 15, 1865) was an American lawyer, politician, and statesman who served as the 16th president of the United States from 1861 until his assassination in 1865. Lincoln led the nation throu ...
called for volunteers following the firing on
Fort Sumter Fort Sumter is a sea fort built on an artificial island An artificial island is an island that has been constructed by people rather than formed by natural means. Artificial islands may vary in size from small islets reclaimed solely to s ...
, he enlisted in the Massachusetts militia but returned briefly to Harvard College to participate in commencement exercises.


Civil War

During his senior year of college, at the outset of the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
, Holmes enlisted in the Fourth Battalion of Infantry in the
Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing systems, məhswatʃəwiːsət'' English: , ), officially the Commonwealth of Massachusetts, is the most populous U.S. state, state in the New England ...
militia, then in July 1861, with his father's help, received a commission as second lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry. He saw considerable combat during his service, taking part in the Peninsula Campaign, and the
Wilderness Wilderness or wildlands (usually in the plural), are natural environments on Earth that have not been significantly modified by human activity or any nonurbanized land not under extensive agricultural cultivation. The term has traditionally re ...
, suffering wounds at the
Battle of Ball's Bluff The Battle of Ball's Bluff was an early battle of the American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It ...
, Antietam, and Chancellorsville, and suffered from a near-fatal case of dysentery. He particularly admired and was close to Henry Livermore Abbott, a fellow officer in the 20th Massachusetts. Holmes rose to the rank of lieutenant colonel, but eschewed command of his regiment upon his promotion. Abbott took command of the regiment in his place and was later killed. In September 1863, while recovering at the Holmes family home on Charles Street in
Boston Boston (), officially the City of Boston, is the capital city, state capital and List of municipalities in Massachusetts, most populous city of the Commonwealth (U.S. state), Commonwealth of Massachusetts, as well as the cultural and financ ...
from his third major combat injury, Holmes was promoted to colonel, but never returned to the 20th Massachusetts because the unit had been decimated. Upon his recovery, in January 1864 Holmes was appointed aide-de-camp of General Horatio Wright, then Division Commander of VI Corps, and later in command of the Corps. Holmes served with Wright during General Grant's campaign down to Petersburg, returning to Washington with the Sixth Corps when the Capital was threatened in July 1864. On July 17, 1864 Holmes was mustered out at the end of his enlistment term, returning to Boston and enrolling at
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing syste ...
later that year. Holmes is said to have shouted to Abraham Lincoln to take cover during the
Battle of Fort Stevens The Battle of Fort Stevens was an American Civil War battle fought July 11–12, 1864, in what is now Northwest Washington, DC, Washington, D.C., as part of the Valley Campaigns of 1864 between forces under Confederate States Army, Confedera ...
, 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 Stevens.


Legal career


Lawyer

In the summer of 1864, Holmes returned to the family home in Boston, wrote poetry, and debated philosophy with his friend
William James William James (January 11, 1842 – August 26, 1910) was an List of American philosophers, American philosopher, historian, and psychologist, and the first educator to offer a psychology course in the United States. James is considered to ...
, pursuing his debate with philosophic idealism, and considered re-enlisting. By the fall, when it became clear that the war would soon end, Holmes enrolled in
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing syste ...
, "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. In 1866, he received a
Bachelor of Laws Bachelor of Laws ( la, Legum Baccalaureus; LL.B.) is an undergraduate law degree in the United Kingdom and most common law jurisdictions. Bachelor of Laws is also the name of the law degree awarded by universities in the People's Republic of C ...
degree from Harvard, was admitted to the Massachusetts bar, 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 Clare Castletown, the Lady Castletown, whose family estate in Ireland, Doneraile Court, 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 Admiralty law or maritime law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and conflict of laws, private international law governing the relations ...
and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the new ''American Law Review'', 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

''The Common 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, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. 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 mathematics.
In ''The Common Law'', Holmes wrote that, even though the law ”uses the language of morality, it necessarily ends in external standards not dependent on the consciousness of the individual” or on his moral culpability. Foreseeability of harm was the key: ”the general basis of criminal liability was knowledge, at the time of action, of facts from which common experience showed that certain harmful results were likely to follow.” Tort liability, similarly, was imposed when circumstances were ”such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm”. Likewise, with respect to contracts, ”The law has nothing to do with the actual state of the parties’ minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct.” 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 evenly divided. 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 Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law, which emerged primarily from scholars of the Chicago school of economics. Economics, Economic concepts are used to explain the effec ...
jurisprudence. 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

Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes, but Massachusetts Senator
George Frisbie Hoar George Frisbie Hoar (August 29, 1826 – September 30, 1904) was an American attorney and politician who represented Massachusetts in the United States Senate from 1877 to 1904. He belonged to an extended family that became politically prominen ...
persuaded Hayes to nominate another candidate. In the fall of 1882, Holmes became a professor at
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing syste ...
, accepting an endowed professorship that had been created for him, largely through the efforts of Louis D. Brandeis. On Friday, December 8, 1882, Supreme Judicial Court of Massachusetts associate justice Otis Lord decided to resign, giving outgoing Republican governor John Davis Long a chance to appoint his successor, if he could do so before the
Massachusetts Governor's Council The Massachusetts Governor's Council (also known as the Executive Council) is a governmental body that provides advice and consent Advice and consent is an English phrase frequently used in enacting formulae of bills and in other legal or ...
adjourned at 3 pm. Holmes's partner George Shattuck proposed him for the vacancy, Holmes quickly agreed, and there being no objection by the council, he took the oath of office on December 15, 1882. His resignation from his professorship, after only a few weeks and without notice, was resented by the law school faculty, with James Bradley Thayer finding Holmes's conduct "selfish" and "thoughtless". On August 2, 1899, Holmes became Chief Justice of the
Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the court of last resort, highest court in the Commonwealth (U.S. state), Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the di ...
following the death of 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 A trade union (labor union in American English), often simply referred to as a union, is an organization of workers intent on "maintaining or improving the conditions of their employment", ch. I such as attaining better wages and Employee ben ...
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", at
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which is best known for its prediction theory of law, that " e prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law", and for its "bad man" perspective on the law that " you really want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict".


Supreme Court Justice


Overview

Soon after the death of
Associate Justice Associate justice or associate judge (or simply associate) is a judicial panel member who is not the Chief Justice, chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States ...
Horace Gray in July 1902, President
Theodore Roosevelt Theodore Roosevelt Jr. ( ; October 27, 1858 – January 6, 1919), often referred to as Teddy or by his initials, T. R., was an American politician, statesman, soldier, conservationist, naturalist, historian, and writer who served as the 26t ...
made known his intention to appoint Holmes as Gray's successor; it was the president's stated desire to fill the vacancy with someone from Massachusetts. The nomination was supported by Senator
Henry Cabot Lodge Henry Cabot Lodge (May 12, 1850 November 9, 1924) was an American History of the Republican Party (United States), Republican politician, historian, and statesman from Massachusetts. He served in the United States Senate from 1893 to 1924 and i ...
, the junior senator from Massachusetts, but was opposed by its senior senator,
George Frisbie Hoar George Frisbie Hoar (August 29, 1826 – September 30, 1904) was an American attorney and politician who represented Massachusetts in the United States Senate from 1877 to 1904. He belonged to an extended family that became politically prominen ...
, who was also chairman of the
Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally the Senate Judiciary Committee, is a Standing committee (United States Congress), standing committee of 22 U.S. senators whose role is to oversee the United States Department of Ju ...
. 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. Despite Hoar's opposition, the president moved ahead on the matter. On December 2, 1902, he formally submitted the
nomination Nomination is part of the process of selecting a candidate A candidate, or nominee, is the prospective recipient of an award or honor, or a person seeking or being considered for some kind of position; for example: * to be election, elected t ...
and Holmes was confirmed by the
United States Senate The United States Senate is the Upper house, upper chamber of the United States Congress, with the United States House of Representatives, House of Representatives being the Lower house, lower chamber. Together they compose the national Bica ...
on December 4. He was sworn into office on December 8. On the bench, Holmes did vote to support the administration's position favoring the annexation of former Spanish colonies in the "
Insular Cases The Insular Cases are a series of opinions by the Supreme Court of the United States in 1901 about the status of Territories of the United States, U.S. territories acquired in the Spanish–American War. Some scholars also include cases regarding ...
". However, he later disappointed Roosevelt by dissenting in '' Northern Securities Co. v. United States'', a major
antitrust Competition law is the field of law Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise defi ...
prosecution;''Northern Securities Co. v. U.S.'', 193 U.S. 197 (1904)
.
the majority of the court opposed 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. Holmes was known for his pithy, 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 varied as copyright law, the law of contempt, the antitrust status of professional baseball, and the oath required for
citizenship Citizenship is a "relationship between an individual and a state to which the individual owes allegiance and in turn is entitled to its protection". Each state determines the conditions under which it will recognize persons as its citizens, and ...
. Holmes, like most of his contemporaries, viewed the
Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against Civil and political rights, infringement fr ...
as codifying privileges obtained over the centuries in English and American common law, and he established that view in numerous opinions for the Court. He is considered one of the greatest judges in American history and embodies for many the traditions of the common law. From the departure of
William Howard Taft William Howard Taft (September 15, 1857March 8, 1930) was the 27th president of the United States (1909–1913) and the tenth chief justice of the United States (1921–1930), the only person to have held both offices. Taft was elected pre ...
on February 3, 1930, until
Charles Evans Hughes Charles Evans Hughes Sr. (April 11, 1862 – August 27, 1948) was an American statesman, politician and jurist who served as the 11th Chief Justice of the United States from 1930 to 1941. A member of the Republican Party (United States), Republi ...
took office on February 24, 1930, Holmes briefly acted as the Chief Justice and presided over court sessions.


Noteworthy rulings


''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.


''Schenck v. United States''

In a series of opinions surrounding the World War I
Espionage Act of 1917 The Espionage Act of 1917 is a Law of the United States, United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title ...
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 Justice Louis D. Brandeis, newly appointed by President
Woodrow Wilson Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was an American politician and academic who served as the 28th president of the United States from 1913 to 1921. A member of the History of the Democratic Party (United States), Demo ...
) abandoned the case, and it was dismissed by the Court. The Chief Justice then asked Holmes to write opinions that 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, in '' Schenck v. United States'' (1919), held for a unanimous Court that an attempt, purely by language, could be prosecuted if the expression, in the circumstances in which it was uttered, posed a "clear and present danger" that the legislature had properly forbidden. In his opinion for the Court, Holmes famously declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic". Although much criticized, ''Schenck'' remained an important precedent until it was superseded by the 1969 Supreme Court decision in '' Brandenburg v. Ohio'', which held that "advocacy of the use of force or of law violation" is protected unless "such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".


''Abrams v. United States''

Later in 1919, 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 The Russian Revolution was a period of Political revolution (Trotskyism), political and social revolution that took place in the former Russian Empire which began during the First World War. This period saw Russia abolish its monarchy and ad ...
, 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 , date = October Revolution, 7 November 1917 – Yakut revolt, 16 June 1923{{Efn, The main phase ended on 25 October 1922. Revolt against the Bolsheviks continued Basmachi movement, in Central Asia and Tungus Republic, the Far East th ...
. They were charged with violating the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917 that made criticisms of the government or the war effort a crime. Abrams and his co-defendants were charged with distributing leaflets (one in English and one in Yiddish) that called for a "general strike" to protest the U.S. 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, while Holmes dissented. The majority claimed to be following the precedents already set in Schenck and the other cases in which Holmes had written for the Court, but Holmes insisted that the defendants' leaflets neither threatened to cause any harm, nor showed a 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 egarding the defendants' intentand enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper ... the most nominal punishment seems to me 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 a democracy:
en 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 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.
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 relied on the clear-and-present-danger formulation of ''Schenck'', claiming that the leaflets showed the necessary intent, and ignoring 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 '' Silverthorne Lumber Co. v. United States'' (1920), 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 indirectly from an illegal search must be similarly suppressed. This later became known as the "
fruit of the poisonous tree Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit") ...
" doctrine.


''Buck v. Bell''

In 1927, Holmes wrote the 8–1 majority opinion in '' Buck v. Bell'', a case that upheld the
Virginia Sterilization Act of 1924 The Virginia Sterilization Act of 1924 was a U.S. state law in Virginia for the sterilization of institutionalized persons "afflicted with hereditary forms of insanity that are recurrent, idiocy, imbecility, feeble-mindedness or epilepsy”. It ...
and the
forced sterilization Compulsory sterilization, also known as forced or coerced sterilization, is a government-mandated program to involuntarily sterilize a specific group of people. Sterilization removes a person's capacity to reproduce, and is usually done throug ...
of Carrie Buck, who was claimed to be mentally defective. Later scholarship has shown that the suit was collusive, in that "two eugenics enthusiasts ... had chosen Buck as a bit player in a test case that they had devised", and "had asked Buck's guardian to challenge he Virginia sterilization law. In addition, Carrie Buck was probably of normal intelligence. The argument made on her behalf was principally that the statute requiring sterilization of institutionalized persons was unconstitutional, as a violation of what today is called "
substantive due process Substantive due process is a principle in United States constitutional law that allows courts to establish and protect certain fundamental rights in the United States, fundamental rights from government interference, even if only procedural protec ...
". 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 argued: Sterilization rates under
eugenics Eugenics ( ; ) is a Fringe science, fringe set of beliefs and practices that aim to improve the genetics, genetic quality of a human population. Historically, eugenicists have attempted to alter human gene pools by excluding people and groups ...
laws in the United States climbed from 1927 until '' Skinner v. Oklahoma'', 316 U.S. 535 (1942), in which the U.S. Supreme Court declared unconstitutional an Oklahoma statute that provided for the sterilization of "habitual criminals". ''Buck v. Bell'' continues to be cited occasionally in support of due process requirements for state interventions in medical procedures. For instance, in 2001, the
United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * United States District Court for the Eastern ...
cited ''Buck v. Bell'' to protect the constitutional rights of a woman coerced into sterilization without procedural due process. The court stated that error and abuse will result if the state does not follow the procedural requirements, established by ''Buck v. Bell'', for performing an involuntary sterilization. ''Buck v. Bell'' was also cited briefly, though not discussed, in '' Roe v. Wade'', in support of the proposition that the Court does not recognize an "unlimited right to do with one's body as one pleases". However, although ''Buck v. Bell'' has not been overturned, ”the Supreme Court has distinguished the case out of existence”.


Jurisprudential contributions


Critique of formalism

From his earliest writings, Holmes demonstrated a lifelong belief that the decisions of judges were consciously or unconsciously result-oriented and reflected the mores of the class and society from which judges were drawn. Holmes accordingly argued that legal rules are not deduced through
formal logic Logic is the study of correct reasoning. It includes both Mathematical logic, formal and informal logic. Formal logic is the science of Validity (logic), deductively valid inferences or of logical truths. It is a formal science investigating h ...
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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
 – 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 Pragmatism is a philosophical tradition that considers words and thought as tools and instruments for prediction, problem solving, and action (philosophy), action, and rejects the idea that the function of thought is to describe, represent, ...
is what he attributed to the law, rather than his personal philosophy.Supporting this connection is his brief membership in the informal Metaphysical Club, which met in the 1870s and included Henry and William James and the philosopher Charles Peirce. Central to his thought was the notion that the law, as it had evolved in modern societies, was 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 failed to reflect the prudence of a "reasonable man". If a construction worker throws a beam onto a crowded street: 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''.


Legal positivism

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 In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipres ...
(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 and the legal duties by which all are bound. Judges did not and should not consult any external system of morality, certainly not a system imposed by a deity. Holmes brought himself into constant conflict with scholars who believed that legal duties rested upon
natural law Natural law ( la, ius naturale, ''lex naturalis'') is a system of law based on a close observation of human nature, and based on values intrinsic to human nature that can be Deductive reasoning, deduced and applied independently of positive 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." ”The common law is not a brooding omnipresence in the sky. ... ”''Southern Pacific Co. v. Jensen'', (dissent). Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said: " e prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." 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 The Constitution of the United States is the supreme law of the United States of America. It superseded the Articles of Confederation, the nation's first constitution, in 1789. Originally comprising seven articles, it delineates the nat ...
. 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 n the Constitutionis not a crystal, transparent and unchanged, it is the skin of a living thought...."
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 growth.
Holmes also insisted on the separation of "ought" and "is", confusion of which he saw as an obstacle in understanding the realities of the law. "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". "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". Holmes said, ”I think our morally tinted words have caused a great deal of confused thinking”. Nevertheless, in rejecting morality as a form of natural law outside of and superior to human enactments, 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." Holmes's insistence on the material basis of law, on the facts of a case, has led some to characterize him as unfeeling, however.
George Washington University The George Washington University (GW or GWU) is a Private university, private University charter#Federal, federally chartered research university in Washington, D.C. Chartered in 1821 by the United States Congress, GWU is the largest Higher educat ...
law professor Jeffrey Rosen summarized Holmes's 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 ... an aristocratic nihilist who once told his sister that he loathed 'the thick-fingered clowns we call the people'." Jeffrey Rosen
"Brandeis's Seat, Kagan's Responsibility"
. ''New York Times'', July 2, 2010. Retrieved July 5, 2010.


Reputation as a dissenter

Although Holmes did not dissent frequently — during his 29 years on the U.S. Supreme Court, 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 helpful". Two of his most famous dissents were in '' Abrams v. United States'' and '' Lochner v. New York''.


Speeches and letters


Speeches

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 School. Harvard Law Professor Mark De Wolfe 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 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: In the 1890s, at a time when "scientific" anthropology that spoke of racial differences was in vogue, his observations took on a bleakly Darwinist cast: 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 , partof = the Philippine Revolution, the decolonization of the Americas, and the Cuban War of Independence , image = Collage infobox for Spanish-American War.jpg , image_size = 300px , caption = (clock ...
. On May 30, 1895, Holmes gave the address at a Memorial Day function held by the Graduating Class of Harvard University in Boston, Massachusetts. The speech, which came to be known as "The Soldier's Faith", expressed Holmes's view of the nature of war, and the conflict between the high ideals that motivated his generation to fight in the civil war, and the reality of a soldier's experience and personal pledge to follow orders into battle. Holmes stated: In the conclusion of the speech, Holmes said: Theodore Roosevelt reportedly admired Holmes's "Soldier's Faith" speech, and it is believed to have contributed to his decision to nominate Holmes to the Supreme Court.


Letters

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 Harold Joseph Laski (30 June 1893 – 24 March 1950) was an English political theorist and economist An economist is a professional and practitioner in the social sciences, social science discipline of economics. The individual may also s ...
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 Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian Americans, Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted ...
, 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'', by Sheldon Novick. These letters are closer to Holmes’s conversation and cast light upon the style he adopted in judicial opinions, which were often designed to be 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

Holmes was widely admired during his last years, and on his ninetieth birthday he was honored on one of the first coast-to-coast radio broadcasts, during which Chief Justice
Charles Evans Hughes Charles Evans Hughes Sr. (April 11, 1862 – August 27, 1948) was an American statesman, politician and jurist who served as the 11th Chief Justice of the United States from 1930 to 1941. A member of the Republican Party (United States), Republi ...
, Dean of Yale Law School Charles Edward Clark, and the president of the American Bar Association read encomia; the Bar Association presented him with a gold medal. 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 and 10 months of age, he was the oldest justice to serve in the Court's history. (His record has been challenged only by
John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...
, who in 2010 retired at 8 months younger than Holmes had been at his own retirement.) On Holmes’s ninety-second birthday, newly inaugurated President Franklin D. Roosevelt and his wife, Eleanor, called on Holmes at his home in Washington, D.C. Holmes died of
pneumonia Pneumonia is an Inflammation, inflammatory condition of the lung primarily affecting the small air sacs known as Pulmonary alveolus, alveoli. Symptoms typically include some combination of phlegm, productive or dry cough, chest pain, fever, ...
in Washington on March 6, 1935, two days short of his 94th birthday. He was the last living justice of the Fuller Court; he had been between 1925 and 1932 the last justice of that Court to remain on the bench. In his will, Holmes left his residuary estate to the 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
Minié ball The Minié ball or Minie ball, is a type of hollow-base bullet, hollow-based bullet designed by Claude-Étienne Minié, inventor of the French Minié rifle, for Muzzleloader, muzzle-loading rifled muskets. It was invented in 1847 and came to pr ...
s that had wounded him three times in separate battles. Holmes was buried beside his wife in
Arlington National Cemetery Arlington National Cemetery is one of two national cemeteries run by the United States Army. Nearly 400,000 people are buried in its 639 acres (259 ha) in Arlington, Virginia. There are about 30 funerals conducted on weekdays and 7 held on Sa ...
. The
United States Postal Service The United States Postal Service (USPS), also known as the Post Office, U.S. Mail, or Postal Service, is an Independent agencies of the United States government, independent agency of the executive branch of the Federal government of the Uni ...
honored Holmes with a Prominent Americans series (1965–1978) 15¢
postage stamp A postage stamp is a small piece of paper issued by a post office, postal administration, or other authorized vendors to customers who pay postage (the cost involved in moving, insuring, or registering mail), who then affix the stamp to the fa ...
. Holmes's papers, donated to
Harvard Law School Harvard Law School (Harvard Law or HLS) is the law school of Harvard University, a private research university in Cambridge, Massachusetts Massachusetts (Massachusett language, Massachusett: ''Muhsachuweesut assachusett writing syste ...
, were kept closed for many years after his death, a circumstance that gave rise to somewhat fanciful accounts of his life. Catherine Drinker Bowen's fictionalized biography ''Yankee from Olympus'' was a long-time bestseller, and the 1946 Broadway play and 1950
Hollywood Hollywood usually refers to: * Hollywood, Los Angeles, a neighborhood in California * Hollywood, a metonym for the cinema of the United States Hollywood may also refer to: Places United States * Hollywood District (disambiguation) * Hollywood, ...
motion picture A film also called a movie, motion picture, moving picture, picture, photoplay or (slang) flick is a work of visual art that simulates experiences and otherwise communicates ideas, stories, perceptions, feelings, beauty, or atmosphere ...
'' The Magnificent Yankee'' were based on a biography of Holmes by
Francis Biddle Francis Beverley Biddle (May 9, 1886 – October 4, 1968) was an American lawyer and judge who was the United States Attorney General during World War II. He also served as the primary American judge during the postwar Nuremberg Trials as well a ...
, 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. The Harvard 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 U.S. Permanent Committee for the Oliver Wendell Holmes Devise within the
Library of Congress The Library of Congress (LOC) is the research library A library is a collection of materials, books or media that are accessible for use and not just for display purposes. A library provides physical (hard copies) or digital access (so ...
with the funds he left to the United States in his will, which were used to create a memorial garden at the Supreme Court building and to publish an ongoing series on the history of the Supreme Court. Holmes' summer house in
Beverly, Massachusetts Beverly is a city in Essex County, Massachusetts, and a suburb of Boston. The population was 42,670 at the time of the 2020 United States Census. A resort, residential, and manufacturing community on the Massachusetts North Shore (Massachusetts ...
, was designated a
National Historic Landmark A National Historic Landmark (NHL) is a National Register of Historic Places property types, building, district, object, site, or structure that is officially recognized by the Federal government of the United States, United States government fo ...
in 1972, recognition for his contributions to American jurisprudence. Justice Holmes was an honorary member of the Connecticut
Society of the Cincinnati The Society of the Cincinnati is a lineage society, fraternal, hereditary society founded in 1783 to commemorate the American Revolutionary War that saw the creation of the United States. Membership is largely restricted to descendants of mili ...
.


Clerks

"Many secretaries formed close friendships with one another", wrote Tony Hiss, son of
Alger Hiss Alger Hiss (November 11, 1904 – November 15, 1996) was an American government official accused in 1948 of having spied for the Soviet Union in the 1930s. Statutes of limitations had expired for espionage, but he was convicted of perjury in con ...
, 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 Alger Hiss (November 11, 1904 – November 15, 1996) was an American government official accused in 1948 of having spied for the Soviet Union in the 1930s. Statutes of limitations had expired for espionage, but he was convicted of perjury in con ...
, president of the
Carnegie Endowment for International Peace The Carnegie Endowment for International Peace (CEIP) is a nonpartisan international affairs think tank headquartered in Washington D.C. with operations in Europe, South and East Asia, and the Middle East as well as the United States. Founded in ...
and convicted perjurer * Donald Hiss, partner, Covington & Burling law firm * Irving Sands Olds, chairman of U.S. Steel * H. Chapman Rose, Undersecretary of the
United States Treasury The Department of the Treasury (USDT) is the Treasury, national treasury and finance department of the federal government of the United States, where it serves as an United States federal executive departments, executive department. The departme ...
* Chauncey Belknap, partner at Patterson, Belknap, Webb & Tyler, one of largest law firms in New York during his time, and an attorney for the Rockefeller Foundation


In popular culture

* American actor
Louis Calhern Carl Henry Vogt (February 19, 1895 – May 12, 1956), known professionally as Louis Calhern, was an American stage and screen actor. Well known to film noir fans for his role as the pivotal villain in 1950's ''The Asphalt Jungle'', he was n ...
portrayed Holmes in the 1946 play ''The Magnificent Yankee'', with
Dorothy Gish Dorothy Elizabeth Gish (March 11, 1898June 4, 1968) was an American actress of the screen and stage, as well as a director and writer. Dorothy and her older sister Lillian Gish Lillian Diana Gish (October 14, 1893February 27, 1993) was an ...
as Holmes's wife Fanny. In 1950, Calhern repeated his performance in
Metro-Goldwyn-Mayer Metro-Goldwyn-Mayer Studios Inc., also known as Metro-Goldwyn-Mayer Pictures and abbreviated as MGM, is an American film, television production, distribution and media company owned by amazon (company), Amazon through MGM Holdings, founded o ...
's film version '' The Magnificent Yankee'', for which he received his only
Academy Award The Academy Awards, better known as the Oscars, are awards for artistic and technical merit for the American and international film industry. The awards are regarded by many as the most prestigious, significant awards in the entertainment ind ...
nomination. Ann Harding co-starred in the film. A 1965 television adaptation of the play starred
Alfred Lunt Alfred David Lunt (August 12, 1892 – August 3, 1977) was an American actor and director, best known for his long stage partnership with his wife, Lynn Fontanne, from the 1920s to 1960, co-starring in Broadway and West End productions. After ...
and
Lynn Fontanne Lynn Fontanne (; 6 December 1887 – 30 July 1983) was an English actress. After early success in supporting roles in the West End theatre, West End, she met the American actor Alfred Lunt, whom she married in 1922 and with whom she co-starred i ...
in one of their few appearances on the small screen. * In the movie ''
Judgment at Nuremberg ''Judgment at Nuremberg'' is a 1961 American epic film, epic Legal drama, courtroom drama film directed and produced by Stanley Kramer, written by Abby Mann and starring Spencer Tracy, Burt Lancaster, Richard Widmark, Maximilian Schell, Werner Kl ...
'' (1961), defense advocate Hans Rolfe (
Maximilian Schell Maximilian Schell (8 December 1930 – 1 February 2014) was an Austrian-born Swiss actor, who also wrote, directed and produced some of his own films. He won the Academy Award for Best Actor The Academy Award for Best Actor is an award present ...
) quotes Holmes twice. First, with one of his earlier opinions: Second, on the sterilization laws enacted in Virginia and upheld by the Supreme Court in '' Buck v. Bell'': : This was in relation to Holmes' support for eugenics laws in the United States, which Rolfe argued were not different in principle from the Nazi laws. In the earlier ''
Playhouse 90 ''Playhouse 90'' was an American television anthology series, anthology drama series that aired on CBS from 1956 to 1960 for a total of 133 episodes. The show was produced at CBS Television City in Los Angeles, California. Since live anthology dr ...
'' television version from 1959, which also quotes Holmes in this context, the tribunal judge Ives, who ultimately presents a dissenting verdict, is played by the actor Wendell Holmes (1914–1962), born Oliver Wendell Holmes. * Holmes appears as a minor character in Bernard Cornwell's novels ''Copperhead'' and ''The Bloody Ground'', the second and fourth volumes of his '' Starbuck Chronicles''; 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 A sitcom, a Portmanteau, portmanteau of situation comedy, or situational comedy, is a genre of comedy centered on a fixed set of characters who mostly carry over from episode to episode. Sitcoms can be contrasted with sketch comedy, where a troup ...
''
Green Acres ''Green Acres'' is an American television sitcom starring Eddie Albert and Eva Gabor as a couple who move from New York City to a country farm. Produced by Filmways as a sister show to ''Petticoat Junction'', the series was first broadcast on ...
'' starred Eddie Albert as a character named Oliver Wendell Douglas, a
Manhattan Manhattan (), known regionally as the City, is the most densely populated and geographically smallest of the five Boroughs of New York City, boroughs of New York City. The borough is also coextensive with New York County, one of the List of co ...
white-shoe lawyer who gives up the law to become a farmer. His name is a combination of two Supreme Court Justices, Holmes and William O. Douglas. * The 1980 comic strip Bloom County features a character named Oliver Wendell Jones, a young computer hacker and gifted scientist.


See also

*
Demographics of the Supreme Court of the United States The demographics of the Supreme Court of the United States encompass the gender Gender is the range of characteristics pertaining to femininity and masculinity and differentiating between them. Depending on the context, this may include se ...
* '' Freedom for the Thought That We Hate'' *
List of justices of the Supreme Court of the United States The Supreme Court of the United States is the highest-ranking judicial body in the United States. Its membership, as set by the Judiciary Act of 1869, consists of the chief justice of the United States and eight Associate Justice of the Supreme ...
* List of law clerks of the Supreme Court of the United States (Seat 2) * List of United States Supreme Court justices by time in office * Prediction theory of law * List of people on the cover of Time Magazine: 1920s (March 15, 1926) * Skepticism in law * List of United States Supreme Court cases by the Fuller Court * List of United States Supreme Court cases by the Hughes Court * List of United States Supreme Court cases by the Taft Court * List of United States Supreme Court cases by the White Court


References


Explanatory notes


Citations


Primary sources

* Collins, Ronald K. L., ed.
''The Fundamental Holmes: A Free Speech Chronicle and Reader'' (Cambridge University Press, 2010)
* Hoeflich, Michael H. and Davies, Ross E., eds. (2021). ''The Black Book of Justice Holmes: Text Transcript and Commentary''. The Lawbook Exchange, Ltd. . Publisher's descriptio

Interview with editor

* Holmes, Oliver Wendell (1881). ''The Common Law''. Little, Brown, and Company. * Holmes, Oliver Wendell (1920). ''Collected Legal Papers''. Harcourt, Brace and Company. * Holmes, Oliver Wendell (1962). ''The Occasional Speeches of Justice Oliver Wendell Holmes'' (Mark DeWolfe Howe, ed.) Cambridge, Massachusetts: Harvard University Press. * * * Shriver, Harry C., ed., ''Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers''. Central Book Co., 1936.


Bibliography

* Abraham, Henry J., ''Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II'' (5th ed., 2007). New York: Rowman & Littlefield Publishers. . * Aichele, Gary, ''Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge''. Twayne Publishers, 1989. * * 1991. * Francis Biddle, Biddle, Francis, ''Mr. Justice Holmes''. Scribner, 1942. * Biddle, Francis, ''Justice Holmes, Natural Law, and the Supreme Court''. MacMillan, 1961
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* Brown, Richard Maxwell, ''No Duty to Retreat: Violence and Values in American History and Society''. (
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, Norman Publishing Division of the University, by arrangement with Oxford University Press, Inc., 1991). * Budiansky, Stephen, ''Oliver Wendell Holmes: A Life in War, Law, and Ideas''. W.W. Norton & Company, 2019. * Burton, Steven J., ed., ''The Path of the Law And Its Influence: The Legacy of Oliver Wendell Holmes, Jr.'' Cambridge University Press, 2000. * * Cushman, Clare, ''The Supreme Court Justices: Illustrated Biographies,1789-1995'' (2nd ed.) ( Supreme Court Historical Society), (
Congressional Quarterly Congressional Quarterly, Inc., or CQ, is part of a privately owned publishing company called CQ Roll Call that produces a number of publications reporting primarily on the United States Congress. CQ was acquired by the Economist Group and combined ...
Books, 2001) . * * Frankfurter, Felix, ''Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court''. Cambridge, Massachusetts: Dunster House Bookshop, 1927. * Frankfurter, Felix
"Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court".
Harvard Law Review, Vol. 41, No. 2 (December 1927), pp. 121-173. * Frankfurter, Felix, ed., ''Mr. Justice Holmes''. Coward-McCann, Inc., 1931. * Frankfurter, Felix, ''Mr. Justice Holmes and the Supreme Court''. Cambridge, Massachusetts: Harvard University Press, 1938. * Friedman, Leon and Israel, Fred L. (4 vols.), ''The Justices of the United States Supreme Court: Their Lives and Major Opinions''. New York: Facts on File, Inc., 2013. * * Gordon, Robert W., ed., ''The Legacy of Oliver Wendell Holmes, Jr.'' Stanford University Press, 1992. * Grant, Susan-Mary, ''Oliver Wendell Holmes, Jr.: Civil War Soldier, Supreme Court Justice''. Routledge, 2016. * Hall, Kermit L., ed., ''The Oxford Companion to the Supreme Court of the United States''. New York: Oxford University Press, 1992. . *
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* Hurst, James Willard, ''Justice Holmes on Legal History''. The Macmillan Company, 1964. * Kang, John M., ''Oliver Wendell Holmes and Fixations of Manliness''. Routledge, 2018
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* Kellogg, Frederic R., ''Justice Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint''. Cambridge University Press, 2007. * Kellogg, Frederic R., ''Oliver Wendell Holmes Jr. and Legal Logic''. The University of Chicago Press, 2018. * Kornstein, Daniel, ''The Second Greatest American''. AuthorHouse, 2017. * Lerner, Max, ed., ''The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions''. Boston:
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, 1943. * Lewis, Anthony, '' Freedom for the Thought That We Hate: A Biography of the First Amendment'' (Basic ideas. New York: Basic Books, 2007). . * Lian, Alexander, ''Stereoscopic Law: Oliver Wendell Holmes and Legal Education''. Cambridge University Press, 2020. * Martin, Fenton S. and Goehlert, Robert U., ''The U.S. Supreme Court: A Bibliography''. Congressional Quarterly Books, 1990. . * Matteson, John, ''A Worse Place Than Hell: How the Civil War Battle of Fredericksburg Changed a Nation''. New York: W.W. Norton and Company, 2021. . * Menand, Louis, '' The Metaphysical Club: A Story of Ideas in America''. New York: Farrar, Straus and Giroux, 2001. . * Mendenhall, Allen, ''Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law''. Bucknell University Press, 2016. * Monagan, John S., ''The Grand Panjandrum: Mellow Years of Justice Holmes''. Lanham: University Press of America, 1988. . * * Pohlman, H.L., ''Justice Oliver Wendell Holmes & Utilitarian Jurisprudence''. Cambridge, Massachusetts: Harvard University Press, 1984. * Pohlman, H.L., ''Justice Oliver Wendell Holmes: Free Speech and the Living Constitution''. New York University Press, 1991. * Rabban, David M., ''Law's History: American Legal Thought and the Transatlantic Turn to History''. Cambridge University Press, 2012. . * Rosenberg, David, ''The Hidden Holmes: His Theory of Torts in History''. Harvard University Press, 1995. . * Snyder, Brad, ''The House of Truth: A Washington Political Salon and the Foundations of American Liberalism''. Oxford University Press, 2017. * Urofsky, Melvin I., ''The Supreme Court Justices: A Biographical Dictionary'' (New York:
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, 1994). 590 pp. . * Vannatta, Seth, ed., ''The Pragmatism and Prejudice of Oliver Wendell Holmes Jr.'' Lexington Books, 2019. * Wells, Catharine Pierce, ''Oliver Wendell Holmes: A Willing Servant to an Unknown God''. Cambridge University Press, 2020. * White, G. Edward
''Justice Oliver Wendell Holmes: Law and the Inner Self''. Oxford University Press, 1993.
* White, G. Edward, ''Oliver Wendell Holmes: Sage of the Supreme Court'' (Oxford University Press, 2000); also published as ''Oliver Wendell Holmes, Jr.'' (Oxford University Press, 2006). * Wilson, Edmund, "Justice Oliver Wendell Holmes," ch. XVI of '' Patriotic Gore: Studies of the Literature of the
American Civil War The American Civil War (April 12, 1861 – May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States. It was fought between the Union (American Civil War), Union ("the North") and t ...
''.
Farrar, Straus and Giroux Farrar, Straus and Giroux (FSG) is an American book publishing company, founded in 1946 by Roger Williams Straus Jr. and John C. Farrar. FSG is known for publishing literary books, and its authors have won numerous awards, including Pulitzer P ...
, 1962
Reviewed by David W. Blight
(" e chapters of Stowe, Grant, and Holmes ... alone make the book worth reading. Holmes ... is Wilson's ultimate hero.") * Wilson, Edmund, "The Holmes-Laski Correspondence", in ''Eight Essays''. Garden City, New York: Doubleday & Company, Inc., 1954, pp. 217-238.


External links


Fanny Holmes, Wife Of Supreme Court Justice Oliver Wendell Holmes, Jr.


* * *
Oliver Wendell Holmes, Jr., Recalls Famed Abraham Lincoln Fort Stevens Visit, Original Letter
at Shapell Manuscript Foundation *

* * * * ttps://www.c-span.org/video/?21064-1/justice-beacon-hill ''Booknotes'' interview with Liva Baker on ''The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes'', September 8, 1991.* , - , - {{DEFAULTSORT:Holmes, Oliver Wendell 02 1841 births 1935 deaths 19th-century American judges 20th-century American judges American eugenicists American legal writers American people of English descent American Unitarians Burials at Arlington National Cemetery Chief Justices of the Massachusetts Supreme Judicial Court Corresponding Fellows of the British Academy Deaths from pneumonia in Washington, D.C. Hall of Fame for Great Americans inductees Harvard College alumni Harvard Law School alumni Harvard Law School faculty Hasty Pudding alumni Justices of the Supreme Court of the United States Lawyers from Boston Massachusetts lawyers Massachusetts Republicans People from Beacon Hill, Boston People from Mattapoisett, Massachusetts People of Massachusetts in the American Civil War Philosophers of law United States Army officers United States federal judges appointed by Theodore Roosevelt