Oliver Wendell Holmes, Jr

Associate justice of the United States (1902-1932)

• Born: March 8, 1841
• Birthplace: Boston, Massachusetts
• Died: March 6, 1935
• Place of death: Washington, D.C.

Noted as a U.S. Supreme Court associate justice, Holmes helped set the stage for the development of modern American jurisprudence. He developed the concept of “clear and present danger” as the only justification for curtailing the right of free speech.

Early Life

Oliver Wendell Holmes, Jr., born in Boston, was the son of the famous poet and writer Oliver Wendell Holmes, who would influence him greatly; their relationship, however, would be strained. His mother, Amelia Jackson, came from a well-known New England family, members of which were involved in the region’s commerce, banking, and law; her father was a judge on the Supreme Judicial Court of Massachusetts. Young Oliver had a sister, Amelia, and a brother, Edward.

At age ten, Holmes began study at the Private Latin School. The headmaster, Epes S. Dixwell, a graduate of Harvard College, had been a legal apprentice in the law office of Holmes’s maternal grandfather. Holmes studied Latin, Greek, ancient history, and mathematics. In addition, he read on his own, having a strong interest in poetry and in the historical novels of Sir Walter Scott. An important part of Holmes’s education took place outside his formal schooling. His father was at the center of the literary and intellectual life of New England. Dr. Holmes was well traveled, and he was well known in Europe as well as in America. Through his father, Holmes became acquainted with literary figures, philosophers, historians, jurists, and scientists.

Holmes entered Harvard College in the fall of 1857. He was more than six feet tall and was extremely thin. His dark, straight hair dipped over his forehead and deep-set, blue-gray eyes. While in the Army, he grew a flaring mustache that he maintained until his death.

At Harvard, Holmes’s interest in poetry, philosophy, and science grew, as did his intellectual curiosity. Like his father before him, he was the class poet. He also supported reformist causes such as antislavery and wrote articles for the Harvard Magazine. When the Civil War began, however, Holmes left Harvard and enlisted in the Fourth Battalion of Infantry. After he was graduated, Holmes received a commission as first lieutenant in the Twentieth Massachusetts Regiment of Volunteers, which was later mustered into the U.S. Army.

His war service was brutal, bloody, and painful. Memories of the war strongly shaped his thought and especially his feeling about his government. Yet Holmes was proud of his service; according to Holmes, the war experience “touched with fire” the hearts of those who served. He often referred to his army days throughout his life and writings.

In the Battle of Ball’s Bluff, on October 21, 1861, Holmes was hit in the stomach with a spent bullet and was knocked to the ground. He got up, urging his men forward, and was shot in the chest, the bullet passing through his body. His wound led to a long convalescence at home in Boston. In March, Holmes returned to his regiment and was soon promoted to captain. On September 17, 1862, he was shot through the neck, the bullet just missing the spinal cord and the carotid artery. After a period of convalescence, he again returned to active duty. He was to be wounded again: On May 3, 1863, in the Battle of Chancellorsville, he was injured in the heel. From this point onward, Holmes suffered from battle fatigue.

On January 3, 1864, Holmes returned to his regiment as a lieutenant colonel. On January 29, he was assigned to the staff headquarters of General H. G. Wright, completing his term of service in July of that year.

The fall of 1864 found Holmes at Harvard Law School. The Harvard law faculty reflected the fundamental traits of American jurists of the time. Legal thinkers were not given to searching for a unified philosophy on which to base decisions; rather, they sought to solve particular practical problems.

After he was graduated from law school in 1866, Holmes traveled to Europe. There, he exchanged ideas with some of the world’s great minds: Sir Frederick Pollock, Sir Henry Maine, John Stuart Mill, and Benjamin Jowett, among others. With Pollock, Holmes kept a lifelong friendship.

Life’s Work

After his return from Europe, Holmes was admitted to the practice of law. He entered the law office of Robert Morse and then the office of Chandler, Shattuck and Thayer. Later, he joined forces with George O. Shattuck and William A. Munroe to form his own firm. On June 17, 1872, he married Fanny Bowditch Dixwell, who was the eldest daughter of his former schoolmaster, E. S. Dixwell.

Holmes’s early legal career included a time as editor of the American Law Review from 1870 to 1873. He also edited James Kent’s Commentaries on American Law, published in 1873. His early writings show the further development of his philosophy of American law. He rejected the idea that law basically consists of logical deduction from given principles. Holmes saw the need for a philosophical structure as the basis for legal decisions, since logic itself rested on a philosophical base. Many of Holmes’s ideas came together in 1881, when he published The Common Law , which had a tremendous impact on American jurisprudence. Its basic thesis stood directly against the prevailing legal thought. Holmes boldly stated that “the life of the law has not been logic: it has been experience.” According to Holmes, the prevailing attitudes, values, assumptions, “even the prejudices” of judges had more to do with governing men than did logic.

In The Common Law, Holmes looked to history and, in some degree, to utilitarianism the doctrine that the greatest good for the greatest number should be the determining consideration of conduct for a philosophical system to support the law. “The law,” he wrote, “embodies the story of a nation’s development through many centuries. . . .” He also noted that “the substance of the law at any given time pretty nearly corresponds . . . with what is then understood to be convenient.” He pointed out, however, that “its form and machinery” is dependent “very much upon its past.” Holmes’s philosophy was thus moving toward a legal science. His legal philosophy showed the influence of thinkers such as Herbert Spencer, Henry Buckle, John Stuart Mill, and Auguste Comte.

Holmes’s growing reputation led to an offer to join the Harvard Law School faculty. In January, 1882, he became Weld Professor of Law. In December, 1882, he was appointed to the Supreme Judicial Court of Massachusetts. In 1902, President Theodore Roosevelt appointed him a U.S. Supreme Court associate justice. As associate justice, he dealt with the fundamental issues of the Constitution, in particular the problem of how constitutional law is concerned with the conflict between the powers of Congress and those of the state legislatures, and issues concerning the rights and freedoms of the individual and the extent to which the federal government can limit those freedoms. Holmes was a strong advocate of judicial restraint, and his decisions deeply influenced the philosophical underpinnings of American law.

Before he came to the Court, Holmes had taken the stance that legal principles did not resolve all issues. His study of history and philosophy had made him skeptical about the existence of absolute truths. While he recognized the value of the doctrine of utilitarianism, he saw law as being affected by the prevailing attitudes, values, and assumptions of the community. He believed that legislative bodies, not courts, must make laws. Within constitutional bounds, people have a right to whatever laws they want. This sort of freedom, a long-range freedom that he sought to preserve in his legal interpretations, was, for Holmes, critical to social growth. For Holmes, the most important principle of the Constitution is that of freedom of thought not only for those with whom one agrees but also “for the thought that we hate.” Thus, Holmes developed the concept of “clear and present danger” as the only justification for curtailing the right of free speech: “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

However, on no issue did Holmes take an unalterable, absolute position. During the Red Scare of 1918-1919, in Abrams v. U.S. (1919), he defended free speech in opposing the Sedition Act of 1919. In Schenck v. U.S. (1919), however, he argued that free speech is limited if it created “a clear and present danger.” His dissent in Lochner v. New York (1905) attacked unrestricted economic rights, declaring that the Fourteenth Amendment “does not enact Mr. Herbert Spencer’s Social Statics.”

At the same time, Holmes argued that judges should limit their actions to declare legislative acts unconstitutional. In Otis and Gassman v. Parker (1902), for example, he pointed out that judges should allow “for differences of view” and that “conditions which this court can know but imperfectly” should make the justices cautious. In a child labor issue, Hammer v. Dagenhart (1918), and in an issue involving women’s wages, Adkins v. Children’s Hospital (1923), he argued against the absolute right of contract, writing that the Constitution did not prevent reasonable laws controlling wages and hours.

Significance

Holmes’s contribution to American jurisprudence was both deep and long-lasting. His view that the law was experience, that the law was shaped by a degree of utilitarianism and that it should be subjected to a legal science, deeply affected Anglo-American jurisprudence. These ideas sent jurists and scholars inquiring into the conditions that surround the law and helped develop a sociology of law.

Holmes was the first Anglo-American jurist to probe seriously the subconscious mind, seeking further understanding of legal decision making. In this regard, he predated European pioneers in the psychology of the subconscious. He sought the meaning of words in history, taking the view that dictionary definitions are inadequate. He recognized that words have a life history and that the meanings of words can differ depending on their historical context. Furthermore, he built a reasoned, scientifically oriented philosophy of law that broke American law free from the stagnated condition in which he found it when he first began his legal studies. He set the stage for a maturing of American law.

Holmes does not fit any fixed category. To say that he represented the liberal wing of the Court at the time when laissez-faire concepts dominated much of legal thought overlooks his skepticism. He urged caution before declaring laws unconstitutional: People, through their legislatures, had the right to create the society that they saw fit to create. For Holmes, the Court should respect that right in its deliberations. This view mirrored Holmes’s view of law.

Holmes has been called the greatest legal mind in the history of Anglo-American jurisprudence. When he died in Washington, D.C., on March 6, 1935, three years after retiring, he left his considerable wealth to the United States with no letter of explanation.

Bibliography

Biddle, Francis. Justice Holmes, Natural Law, and the Supreme Court. New York: Macmillan, 1961. The author takes a rather uncritical view of Holmes, but he does discuss an important part of Holmes’s thought.

Bowen, Catherine Drinker. Yankee from Olympus: Justice Holmes and His Family. Boston: Little, Brown, 1944. A popular biography written in an easy, colorful, and interesting style. Holmes is placed in the historical context of his times.

Frankfurter, Felix. Mr. Justice Holmes and the Supreme Court. 2d ed. Cambridge, Mass.: Belknap Press, 1961. Written by a Supreme Court justice who served with Holmes on the Court. Favorable to Holmes and presents him as a great jurist. Frankfurter gives insights into the interior workings of the Court and the thinking of Holmes.

Holmes, Oliver Wendell, Jr. Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-1864. Edited by Mark Dewolfe Howe. Cambridge, Mass.: Harvard University Press, 1947. An interesting set of documents that aid in understanding Holmes.

Howe, Mark DeWolfe. Justice Oliver Wendell Holmes. 2 vols. Cambridge, Mass.: Harvard University Press, 1957-1963. This two-volume work is a first-rate intellectual biography of Holmes with a favorable point of view. The first volume covers 1841-1870, and the second covers 1870-1882.

Kellogg, Fredric R. Oliver Wendell Holmes, Jr., Legal Theory and Judicial Restraint. New York: Cambridge University Press, 2006. Traces the development of Holmes’s legal theory and its influence on American law.

Menard, Louis. The Metaphysical Club. New York: Farrar, Straus and Giroux, 2001. In Cambridge, Massachusetts, in 1872, Holmes, William James, and Charles Sanders Peirce met to discuss ideas and develop a philosophy of pragmatism. The book traces how these ideas would later play a prominent role in American life and would subsequently influence Holmes’s judicial decisions.

Pohlman, H. L. Justice Oliver Wendell Holmes and Utilitarian Jurisprudence. Cambridge, Mass.: Harvard University Press, 1984. Pohlman develops aspects of the origin of Holmes’s thought that others have failed fully to develop. A thoughtful and useful book.

White, G. Edward. Oliver Wendell Holmes, Jr. New York: Oxford University Press, 2006. Provides a concise summary of Holmes’s life and judicial decisions, describing his contributions to American law.