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 Boston, Massachusetts
Died	March 6, 1935 Washington D.C.

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. 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, as well as one of the most influential American common-law judges.

Early life

Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr. and abolitionist Amelia Lee Jackson. As a young man, Holmes loved literature and supported the abolitionist movement that thrived in Boston society during the 1850s. He graduated from Harvard University in 1861.

Civil War

During his senior year of college, Holmes enlisted in the Massachusetts militia at the outset of the American Civil War. He saw much action, from the Peninsula Campaign to the Wilderness, and suffered wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. He was mustered out in 1864 as a brevet Lieutenant Colonel. 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 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 fifteen years. In 1870, Holmes became an editor of the American Law Review, edited a new edition of Kent's Commentaries on American Law, 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. This remains the only important work of American jurisprudence written by a practicing attorney. In the book, Holmes sets forth his view that the only source of law, properly speaking, 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 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's "Soldier's Faith" speech as well). The Senate unanimously confirmed the appointment on December 4, and Holmes took his seat on the Court December 8, 1902. Holmes succeeded Justice Horace Gray, who had retired in July 1902 as a result of illness. According to some accounts, Holmes assured 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 The Northern Securities Case, a major antitrust prosecution.

Holmes was known for his pithy, short, and frequently quoted opinions. In more than thirty years on the Supreme Court bench he considered the whole range of federal law, and is remembered for prescient opinions on topics as widely separated as copyright, the law of contempt, the anti-trust 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, in 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 theatre and causing a panic."

The following year, in Abrams v. United States, Holmes 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 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 after for his philosophical views, which espoused moral relativism. He saw few restraints on the power of a governing class to enact its interests into law. Holmes's 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 with the words, "[t]hree generations of imbeciles are enough."

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 inagurated 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 Malthusian theories that emphasized struggle for a fixed amount of resources, however, he did not share the young Progressive's ameliorist views.

Holmes served until January 12, 1932, when his brethren on the court, citing his advanced age (Holmes was, at 90, the oldest serving justice in the Court's history), suggested that he step down. He died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday, leaving his residuary estate to the United States government (he had earlier said that "taxes are the price we pay for civilization"). He was buried in Arlington National Cemetery, 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 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.

Theatre, Film and Television Portrayals

American actor Louis Calhern portrayed Holmes in the 1946 play The Magnificent Yankee, with Dorothy Gish as Holmes's wife, and in 1950, Calhern repeated his performance in MGM's film version, for which he received his only Academy Award nomination. 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.

Trivia

The name of a character in Berke Breathed's political comic strip Bloom County, Oliver Wendell Jones, is based on that of Holmes.

Holmes Quotations

Holmes frequently referred to his wartime experiences, and his Memorial Day addresses were among his most famous, as he sought to give meaning to the experience for a whole new generation. One quote in particular, from his Memorial Day address before a group of veterans in 1884 in Keene, New Hampshire, would help to define the inaugural address and the Presidency of John F. Kennedy seventy-five years later.

• "...it is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return."

• "In our youths, our hearts were touched with fire."
• "We have shared the incommunicable experience of war. We felt, we still feel, the passion of life to its top."

Holmes opinions on law have also been frequently quoted.

• "The question in every case is whether the words used are used in such circumstances and are of such a nature as to cause a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
• "It is only the present danger of an immediate evil and an intent to bring it about that warrants Congress in setting a limit to the expression of opinion."
• "The life of the law has not been logic[;] it has been experience."
• "[Law] corresponds at any given time with what is understood to be convenient. That involves continual change, and there can be no eternal order."
• "A word is not a crystal, transparent and unchanged; it is the skin of a living thought and may vary greatly in color and content according to the circumstances and time in which it is used."
• "The right to swing my fist ends where the other man's nose begins."
• "Three generations of imbeciles is enough."

His opinion on the value of taxes is oft-quoted, not least by the Internal Revenue Service, who appropriately enough have these words on a platband above the entrance to their headquarters at 1111 Constitution Avenue:

• "Taxes are what we pay for a civilized society."

See also

• Dudley-Winthrop Family
• Prediction theory of law

References

ISBN links support NWE through referral fees

• Holmes, Oliver Wendell (1995). The Collected Works of Justice Holmes (S. Novick, ed.). Chicago: University of Chicago Press. ISBN 0-226-34966-7. 
• Alschuler, Albert W. (2000). Law Without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press. ISBN 0-226-01520-3. 
• Novick, Sheldon M. (1989). Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Little, Brown and Company. ISBN 0-316-61325-8. 
• 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 0-226-67554-8. 
• 11th Edition Encyclopædia Britannica (1911)

External links

• Oliver Wendell Holmes, Jr., American Jurist
• Works by Oliver Wendell Holmes. Project Gutenberg

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
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
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
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
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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