Difference between revisions of "Oliver Wendell Holmes, Jr." - New World Encyclopedia

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-{{Infobox Judge
-| name          = Oliver Wendell Holmes, Jr.
-| image        = Oliver Wendell Holmes Jr circa 1930.jpg
-| imagesize    =
-| caption      =
-| office        = [[Associate Justice of the Supreme Court of the United States|Associate Justice of the United States Supreme Court]]
-| termstart    = December 8, 1902
-| termend      = January 12, 1932
-| nominator    = [[Theodore Roosevelt]]
-| appointer    =
-| predecessor  = [[Horace Gray]]
-| successor    = [[Benjamin N. Cardozo]]
-| office2      =
-| termstart2    =
-| termend2      =
-| nominator2    =
-| appointer2    =
-| predecessor2  =
-| successor2    =
-| birthdate    = {{birth date|1841|3|8|mf=y}}
-| birthplace    = [[Boston, Massachusetts|Boston]], [[Massachusetts]]
-| deathdate    = {{death date and age|1935|3|6|1841|3|8|mf=y}}
-| deathplace    = [[Washington, D.C.]]
-| spouse        = Fanny Bowditch Dixwell
-}}
-'''Oliver Wendell Holmes, Jr.''' (March 8, 1841 &ndash; March 6, 1935) was an [[United States|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 [[legislature]]s, 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|Boston]], [[Massachusetts]], the son of the prominent [[writer]], [[Oliver Wendell Holmes, Sr.]], and [[abolitionism|abolitionist]] Amelia Lee Jackson. Oliver Wendell Holmes, Sr. was a [[physician]] by profession but achieved fame as a [[poetry|poet]]; he was one of the best regarded [[United States|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 [[hospital]]s and the incidence of [[infectious disease]]s.
-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 [[Battle of the Wilderness|Wilderness]], suffering wounds at the [[Battle of Ball's Bluff]], [[Battle of Antietam|Antietam]], and [[Battle of Fredericksburg|Fredericksburg]]. He is also said to have shouted at [[Abraham Lincoln|Lincoln]] during the [[Battle of Fort Stevens]], saying "Get down, you fool!" when Lincoln stood, making him a susceptible target.<ref>Doris Kearns Goodwin. (2005) ''Team of Rivals: The Political Genius of Abraham Lincoln.'' (New York: Simon & Schuster. ISBN 0743270754), 643</ref> He was mustered out in 1864 as a [[brevet (military)|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 [[Legal positivism|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===
-[[Image:Oliver wendell holmes jr.jpg|thumb|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 of the United States|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 union]]s 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's "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.<ref name="presidential leadership">James Taranto, Leonard Leo. ''Presidential Leadership.'' (Wall Street Journal Books, 2004)  [http://books.google.com/books?id=zxBAnuWpg5kC]. accessdate January 19, 2009}</ref>
-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 <ref>NORTHERN SECURITIES CO. v. U.S., 193 U.S. 197 (1904)
-[http://tourolaw.edu/PATCH/Northern Text of the U.S. Supreme Court finding] Retrieved January 19, 2009.</ref>.
-[[Image:Oliver Wendell Holmes, 1902.jpg|left|thumb|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 [[United States Bill of Rights|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 [[World War I|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 &mdash; influenced by [[Zechariah Chafee]]'s article “Freedom of Speech in War Time”<ref name="Chafee1919">Zechariah Chafee, 1919 "Freedom of Speech in Wartime" ''Harvard Law Review'' 32:932&ndash;973 doi 10.2307/1327107 </ref> &mdash; 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.
-[[Image:Stamp US 1968 15c Holmes.jpg|thumb|1968 postage stamp issued by the [[United States Post Office Department|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's 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]]'', [[Case citation|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's 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's personal views on economics were influenced by [[Thomas Malthus|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.]] in 1935, 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 "[[tax]]es are the price we pay for a civilized society"). He was buried in [[Arlington National Cemetery]],<ref>[http://www.arlingtoncemetery.org/historical_information/oliver_wendell_holmes.html] Oliver Wendell Holmes at official Arlington National Cemetery website. Retrieved January 19, 2009.</ref> and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.
-Holmes's 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 (theatre)|play]] about Holmes's 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.
-==Legacy==
-===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]],''<ref>''Schenck v. United States,'' {{ussc|249|47|1919}}.</ref> concerning the ability of the government to regulate speech against the draft during [[World War I]]:
-{{cquote|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 to the United States Constitution|First Amendment]] speech<ref name="Derrick2007">Geoffrey J. Derrick, ''Lethbridge Undergraduate Research Journal'' 2 (1) 2007 [http://www.lurj.org/article.php/vol2n1/firstamend.xml Why the Judiciary Should Protect First Amendment Political Speech During Wartime: The Case for Deliberative Democracy]. issn=17188482  Retrieved January 19, 2009.</ref><ref>Robert L. ''Georgetown Law Journal'' 93 (2004): 181–239 [http://papers.ssrn.com/sol3/papers.cfm?abstract_id=525822issn 00168092 Tsai, Fire, Metaphor, and Constitutional Myth-Making.] Retrieved January 23, 2009.</ref> 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]],''<ref>[[Brandenburg v. Ohio]], {{ussc|395|444|1969}}. Retrieved January 19, 2009.</ref> 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]].
-===Theater, film, television, and fictional portrayals===
-[[United States|American]] actor [[Louis Calhern]] portrayed Holmes in the 1946 play ''[[The Magnificent Yankee]],'' with [[Dorothy Gish]] as Holmes's 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.<ref>[http://www.imdb.com/title/tt0042702/maindetails The Magnificent Yankee].''IMDB''. Retrieved January 23, 2009. </ref> [[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]]:
-{{cquote|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?"<ref>Quoted in the book by [[Isaac Asimov]] (writing as "Dr. A"), ''The Sensuous Dirty Old Man'' (1971)</ref>}}
-==Notes==
-<references/>
-==References==
-*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 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.
-==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.
-==External links==
-{{wikiquote}}
-*[http://www.lucidcafe.com/lucidcafe/library/96mar/holmes.html Oliver Wendell Holmes, Jr., American Jurist] Retrieved January 18, 2009.
-*{{gutenberg author| id=Oliver+Wendell+Holmes+(1841-1935) | name=Oliver Wendell Holmes}} Retrieved January 18, 2009.
-*[http://www.law.cornell.edu/supct/html/historics/USSC_CR_0250_0616_ZD.html Holmes' Dissenting Opinion, ''Abrams vs. United States'', 10 November 1919] Retrieved January 18, 2009.
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-{{succession box|title=[[Massachusetts Supreme Judicial Court|Chief Justice of the Massachusetts Supreme Judicial Court]]|before=[[Walbridge A. Field]]|after=[[Marcus Perrin Knowlton]]|years=August 2, 1899–December 8, 1902}}
-{{succession box|title=[[List of Justices of the Supreme Court of the United States|Associate Justice of the Supreme Court of the United States]]|before=[[Horace Gray]]|after=[[Benjamin N. Cardozo]]|years=December 8, 1902–January 12, 1932}}
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-{{start U.S. Supreme Court composition| CJ=[[Melville Fuller|Fuller]]}}
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-{{U.S. Supreme Court composition CJ| CJ=[[William Howard Taft|Taft]]}}
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-{{U.S. Supreme Court composition 1930}}
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-{{end U.S. Supreme Court composition}}
-[[Category:Politicians and reformers]]
-[[Category:Politics and social sciences]]
-[[Category:Politics]]
-[[Category:Biography]]
-{{credits|Oliver_Wendell_Holmes,_Jr.|260742299|Clear_and_present_danger|261633511}}

Difference between revisions of "Oliver Wendell Holmes, Jr." - New World Encyclopedia

Revision as of 21:43, 5 February 2009