Oliver Wendell Holmes, Jr.

From New World Encyclopedia

Oliver Wendell Holmes, Jr.
Oliver Wendell Holmes, Jr.

Associate Justice of the United States Supreme Court
In office
December 8, 1902 – January 12, 1932
Nominated by Theodore Roosevelt
Preceded by Horace Gray
Succeeded by Benjamin N. Cardozo

Born March 8 1841(1841-03-08)
Boston, Massachusetts
Died March 6 1935 (aged 93)
Washington, D.C.
Spouse Fanny Bowditch Dixwell

Oliver Wendell Holmes, Jr. (March 8, 1841 - March 6, 1935) was an American jurist who served on the Supreme Court of the United States from 1902 to 1932. The son of noted physician and poet, Oliver Wendell Holmes, Sr., Holmes, Jr. was one of the most famous American jurists of the twentieth century.

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 widely-cited United States Supreme Court justices in history, particularly his "clear and present danger" majority opinion in the 1919 case of Schenck v. United States, as well as one of the most influential American common-law judges. His concern with issues of "due process" would be taken up by later Supreme Court Justices, laying the groundwork for a number of decisions of the Warren Court.

Early life

Holmes was born in Boston, Massachusetts, the son of the prominent writer, Oliver Wendell Holmes, Sr., and abolitionist Amelia Lee Jackson. Oliver Wendell Holmes, Sr., was a physician by profession but achieved fame as a poet; he was one of the best regarded American poets of the nineteenth century. Holmes was a member of the Fireside Poets, a group of American poets that were among the first to rival their British counterparts.

His works include the poem "Old Ironsides" and the collection of essays and poems, "The Autocrat of the Breakfast Table." The latter displays his "Yankee ingenuity" and wisdom and places Holmes in the traditions leading back to the founding spirit of the country.

Holmes, Sr., also made some interesting scientific observations particularly on the role of poor sanitation in hospitals and the incidence of infectious diseases.

As a young man, Holmes, Jr., loved literature and supported the abolitionist movement that thrived in Boston society during the 1850s. He graduated from Harvard University in 1861, along with his roommate George Tyler Bigelow.

Civil War

During his senior year of college, at the outset of the American Civil War, Holmes enlisted in the fourth battalion, Massachusetts militia, and then received a commission as first lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry. He saw much action, from the Peninsula Campaign to the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. He is also said to have shouted at Lincoln during the Battle of Fort Stevens, saying "Get down, you fool!" when Lincoln stood, making him a susceptible target.[1] He was mustered out in 1864, as a brevet Lieutenant Colonel after his three-year enlistment ended. Holmes emerged from the war convinced that government and laws were founded on violence, a belief that he later developed into a positivist view of law and a rejection of romanticism and natural rights theory. After his death two uniforms were discovered in his closet with a note attached to them reading, "These uniforms were worn by me in the Civil War and the stains upon them are my blood."

Legal career

State judgeship

Oliver Wendell Holmes Jr. as a young man.

After the war's conclusion, Holmes returned to Harvard to study law. He was admitted to the bar in 1866, and went into practice in Boston. He joined a small firm, and married a childhood friend, Fanny Bowditch Dixwell. 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. Mrs. Holmes was described as devoted, witty, wise, tactful, and perceptive.

Whenever he could, Holmes visited London during the social season of spring and summer. He formed his closest friendships with men and women there, and became one of the founders of what was soon called the “sociological” school of jurisprudence in Great Britain, which would be followed a generation later by the “legal realist” school in America.

Holmes practiced admiralty law and commercial law in Boston for 15 years. In 1870, Holmes became an editor of the American Law Review, edited a new edition of Kent's Commentaries on American Law in 1873, and published numerous articles on the common law. In 1881, he published the first edition of his well-regarded book The Common Law, in which he summarized the views developed in the preceding years. In the book, Holmes sets forth his view that the only source of law is a judicial decision. Judges decide cases on the facts, and then write opinions afterward presenting a rationale for their decision. The true basis of the decision, however, is often an "inarticulate major premise" outside the law. A judge is obliged to choose between contending legal theories, and the true basis of his decision is necessarily drawn from outside the law. These views endeared Holmes to the later advocates of legal realism and made him one of the early founders of law and economics jurisprudence.

Holmes was considered for a judgeship on a federal court in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George Frisbie Hoar convinced Hayes to nominate another candidate. In 1882, Holmes became both a professor at Harvard Law School and then a justice of the Supreme Judicial Court of Massachusetts, resigning from the law school shortly after his appointment. He succeeded Justice Horace Gray, whom Holmes coincidentally would replace once again when Gray retired from the U.S. Supreme Court in 1902. In 1899, Holmes was appointed Chief Justice of the Massachusetts court.

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 as long as no violence or coercion was involved, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers.

Supreme Court

On August 11, 1902, President Theodore Roosevelt named Holmes to the United States Supreme Court on the recommendation of Senator Henry Cabot Lodge (Roosevelt reportedly admired Holmes' "Soldier's Faith" speech as well). Holmes' appointment has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee's contribution to law.[2]

The Senate unanimously confirmed the appointment on December 4, and Holmes took his seat on the Court on December 8, 1902. Holmes succeeded Justice Horace Gray, who had retired in July 1902 due to illness. According to some accounts, Holmes assured Theodore Roosevelt that he would vote to sustain the administration's position that not all the provisions of the United States Constitution applied to possessions acquired from Spain, an important question on which the Court was then evenly divided. On the bench, Holmes did vote to support the administration's position in "The Insular Cases." However, he later disappointed Roosevelt by dissenting in Northern Securities Co. v. United States, a major antitrust prosecution.[3]

In the year of his appointment to the United States Supreme Court.

Holmes was known for his pithy, short, and frequently quoted opinions. In more than 30 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 law. Beginning with his first opinion for the Court, Otis v. Parker, Holmes declared that "due process of law," the fundamental principle of fairness, protected people from unreasonable legislation, but was limited to only those fundamental principles enshrined in the common law and did not protect most economic interests. In a series of opinions during and after the First World War, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege to do harm, except 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 would not protect a person "falsely shouting fire in a theater and causing a panic."

The following year, in Abrams v. United States, Holmes—influenced by Zechariah Chafee's article “Freedom of Speech in War Time”[4]—delivered a strongly worded dissent in which he criticized the majority's use of the clear and present danger test, arguing that protests by political dissidents posed no actual risk of interfering with the war effort. In his dissent, he accused the Court of punishing the defendants for their opinions rather than their acts. Although Holmes evidently believed that he was adhering to his own precedent, many later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. The Supreme Court departed from his views 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.

1968 postage stamp issued by the U.S. Post Office to commemorate Oliver Wendell Holmes, Jr.

Holmes was criticized during his lifetime and afterward for his philosophical views, which his opponents characterized as moral relativism. Holmes' critics believe that he saw few restraints on the power of a governing class to enact its interests into law. They assert that his moral relativism influenced him not only to support a broad reading of the constitutional guarantee of "freedom of speech," but also led him to write an opinion for the Court upholding Virginia's compulsory sterilization law in Buck v. Bell, 274 U.S. 200 (1927), where he found no constitutional bar to state-ordered compulsory sterilization of an institutionalized, allegedly "feeble-minded" woman. Holmes wrote, "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 … three generations of imbeciles are enough." While his detractors point to this case as an extreme example of his moral relativism, other legal observers argue that this was a consistent extension of his own version of strict utilitarianism, which weighed the morality of policies according to their overall measurable consequences in society and not according to their own normative worth.

Holmes was admired by the Progressives of his day who concurred in his narrow reading of "due process." He regularly dissented when the Court invoked due process to strike down economic legislation, most famously in the 1905 case of Lochner v. New York. Holmes' dissent in that case, in which he wrote that "a Constitution is not intended to embody a particular economic theory," is one of the most-quoted in Supreme Court history. However, Holmes wrote the opinion of the Court in the Pennsylvania Coal v. Mahon case which inaugurated regulatory takings jurisprudence in holding a Pennsylvania regulatory statute constituted a taking of private property. His dissenting opinions on behalf of freedom of expression were celebrated by opponents of the Red Scare and prosecutions of political dissidents that began during World War I. Holmes' personal views on economics were influenced by Malthusian theories that emphasized struggle for a fixed amount of resources; however, he did not share the young Progressives' ameliorist views.

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. Three years later, Holmes died of pneumonia in Washington, D.C., two days short of his 94th birthday. In his will, Holmes left his residuary estate to the United States government (he had earlier said that "taxes are the price we pay for a civilized society"). He was buried in Arlington National Cemetery,[5] and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.

Holmes' papers, donated to Harvard Law School, were kept closed for many years after his death, a circumstance that gave rise to numerous speculative and fictionalized accounts of his life. 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 highly fictionalized play about Holmes' life. Since the opening of the extensive Holmes papers in the 1980s, however, there has been a series of more accurate biographies and scholarly monographs.


Clear and present danger

Clear and present danger was used by Justice Holmes, Jr. in the majority opinion for the case Schenck v. United States,[6] concerning the ability of the government to regulate speech against the draft during World War I:

The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that the United States Congress has a right to prevent. It is a question of proximity and degree. When a nation is at war, many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight, and that no Court could regard them as protected by any constitutional right.

Following Schenck v. United States, "clear and present danger" became both a public metaphor for First Amendment speech[7][8] and a standard test in cases before the Court where a United States law limits a citizen's First Amendment rights; the law is deemed to be constitutional if it can be shown that the language it prohibits poses a "clear and present danger." However, it should be noted that the "clear and present danger" criterion of the Schenck decision was later modified in 1969 by Brandenburg v. Ohio,[9] and the test refined to determining whether the speech would provoke an imminent lawless action.

The term has made its way into the American vernacular. It is also the name of the novel by Tom Clancy and the subsequent film version.

Theater, film, television, and fictional portrayals

American actor Louis Calhern portrayed Holmes in the 1946 play The Magnificent Yankee, with Dorothy Gish as Holmes' wife, and in 1950 repeated his performance in MGM's film version based on the book Mr. Justice Holmes, by Francis Biddle, for which Calhern received his only Academy Award nomination.[10] Ann Harding co-starred in the film. A 1965 television adaptation of the play starred Alfred Lunt and Lynn Fontanne in one of their few appearances on the small screen.

Holmes is featured in the following passage by Isaac Asimov:

Holmes, in his last years, was walking down Pennsylvania Avenue with a friend, when a pretty girl passed. Holmes turned to look after her. Having done so, he sighed and said to his friend, "Ah, George, what wouldn't I give to be seventy-five again?"[11]

Further reading

  • Abraham, Henry J. Justices and Presidents: A Political History of Appointments to the Supreme Court, 3d. ed. New York: Oxford University Press, 1992. ISBN 0195065573.
  • Cushman, Clare. The Supreme Court Justices: Illustrated Biographies,1789-1995, 2nd ed. (Supreme Court Historical Society), Congressional Quarterly Books, 2001. ISBN 1568021267.
  • Frank, John P. The Justices of the United States Supreme Court: Their Lives and Major Opinions. Leon Friedman and Fred L. Israel, eds. Chelsea House Publishers: 1995. ISBN 0791013774.
  • Hall, Kermit L., ed. The Oxford Companion to the Supreme Court of the United States. New York: Oxford University Press, 1992. ISBN 0195058356.
  • Martin, Fenton S., and Robert U. Goehlert. The U.S. Supreme Court: A Bibliography. Congressional Quarterly Books, 1990. ISBN 0871875543.
  • Urofsky, Melvin I. The Supreme Court Justices: A Biographical Dictionary. New York: Garland Publishing 1994. ISBN 0815311761.


  1. Doris Kearns Goodwin, Team of Rivals: The Political Genius of Abraham Lincoln (New York: Simon & Schuster, 2005, ISBN 0743270754), 643.
  2. James Taranto, Leonard Leo, Presidential Leadership. Retrieved January 19, 2009.
  3. NORTHERN SECURITIES CO. v. U.S., 193 U.S. 197 (1904), Text of the U.S. Supreme Court finding. Retrieved January 19, 2009.
  4. Zechariah Chafee, "Freedom of Speech in Wartime," Harvard Law Review 32: 932–973. doi 10.2307/1327107.
  5. Arlington National Cemetery, Oliver Wendell Holmes. Retrieved January 19, 2009.
  6. Schenck v. United States, 249 U.S. 47 (1919).
  7. Geoffrey J. Derrick, Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy. Lethbridge Undergraduate Research Journal 2 (1) 2007. issn=17188482 Retrieved January 19, 2009.
  8. L. Robert, 00168092 Tsai, Fire, Metaphor, and Constitutional Myth-Making, Georgetown Law Journal 93 (2004): 181–239. Retrieved January 23, 2009.
  9. Brandenburg v. Ohio, 395 U.S. 444 (1969). Retrieved January 19, 2009.
  10. IMDB, The Magnificent Yankee. Retrieved January 23, 2009.
  11. Isaac Asimov, The Sensuous Dirty Old Man (1971).

ISBN links support NWE through referral fees

  • Alschuler, Albert W. 2000. Law Without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press. ISBN 0226015203.
  • Frankfurter, Felix. 1916. The Constitutional Opinions of Justice Holmes. Harvard Law Review 29 (6): 683–702. ISSN 0017-811X.
  • Holmes, Oliver Wendell. 1995. The Collected Works of Justice Holmes, S. Novick, ed. Chicago: University of Chicago Press. ISBN 0226349667.
  • Kearns Goodwin, Doris. 2005. Team of Rivals: The Political Genius of Abraham Lincoln. New York: Simon & Schuster. ISBN 0743270754.
  • Novick, Sheldon M. 1989. Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Little, Brown and Company. ISBN 0316613258.
  • 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 0226675548.
  • Taranto, James, and Leonard Leo. Presidential Leadership. Wall Street Journal Books, 2004.

External links

All links retrieved November 17, 2022.

Legal offices
Preceded by:
Walbridge A. Field
Chief Justice of the Massachusetts Supreme Judicial Court
August 2, 1899–December 8, 1902
Succeeded by:
Marcus Perrin Knowlton
Preceded by:
Horace Gray
Associate Justice of the Supreme Court of the United States
December 8, 1902–January 12, 1932
Succeeded by:
Benjamin N. Cardozo

The Fuller Court Seal of the U.S. Supreme Court
Melville Weston Fuller (1888–1910)
1902–1903: J. M. Harlan | D.J. Brewer | H.B. Brown | Geo. Shiras, Jr. | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes
1903–1906: J. M. Harlan | D.J. Brewer | H.B. Brown | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes | Wm. R. Day
1906–1909: J. M. Harlan | D.J. Brewer | E.D. White | R.W. Peckham | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody
January–March 1910: J. M. Harlan | D.J. Brewer | E.D. White | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton
March–July 1910: J. M. Harlan | E.D. White | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton
The White Court
Edward Douglass White (1910–1921)
1910: J. M. Harlan | J. McKenna | O.W. Holmes | Wm. R. Day | Wm. H. Moody | H.H. Lurton | C.E. Hughes
1911: J. M. Harlan | J. McKenna | O.W. Holmes | Wm. R. Day | H.H. Lurton | C.E. Hughes | W. Van Devanter | J.R. Lamar
1912–1914: J. McKenna | O.W. Holmes | Wm. R. Day | H.H. Lurton | C.E. Hughes | W. Van Devanter | J.R. Lamar | M. Pitney
1914–1916: J. McKenna | O.W. Holmes | Wm. R. Day | C.E. Hughes | W. Van Devanter | J.R. Lamar | M. Pitney | J.C. McReynolds
1916–1921: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J. H. Clarke
The Taft Court
William Howard Taft (1921–1930)
1921–1922: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | J.H. Clarke
1922: J. McKenna | O.W. Holmes | Wm. R. Day | W. Van Devanter | M. Pitney | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland
1923–1925: J. McKenna | O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford
1925–1930: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford | H.F. Stone
The Hughes Court
Charles Evans Hughes (1930–1941)
February–March 1930: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | E.T. Sanford | H.F. Stone
June 1930–1932: O.W. Holmes | W. Van Devanter | J.C. McReynolds | L.D. Brandeis | Geo. Sutherland | P. Butler | H.F. Stone | O.J. Roberts


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