Oliver Wendell Holmes

by Stephen Budiansky

  “Oh, to be eighty again”—what the ninety-year-old justice was said to have remarked on eyeing a pretty girl in the street—wasn’t bad, but wasn’t Holmes, either; variations go back at least a century before him.

  But many wry observations about aging were indubitably his. “One of my greatest problems,” he casually observed to his secretary one day, “is to find available vices for old age.” Starting at age seventy he always warned the young man selected to be his secretary for the coming year that the offer was “subject to my right to die or resign.”30

  As for Washington personalities, some of his one-line putdowns have achieved well-deserved immortality. Dean Acheson once asked Holmes what old Justice John Harlan of Kentucky had been like. Holmes: “Harlan’s mind was like a vise, the jaws of which did not meet. It only held the larger objects.”31

  And he always spoke with bemused humor about his own position among the high and mighty. “About to sally forth to some hashhouse for vittles” meant going to dinner at the finest hotel in Washington; “the boys” meant the fellow justices of the highest court in the land—as in, “I think I’ll lay it on the boys and see if they swallow it,” as he remarked to Belknap once upon completing an opinion. He loved telling of the time the berobed justices were filing in stately procession across the corridor of the Capitol to their courtroom in the old Senate chamber when an awed spectator from the heartland punctured the solemnity of the moment by bursting out, “Christ, what dignity!”32

  His favorite and arresting explanation to his secretaries of how he “fired off” his decisions was that writing a Supreme Court opinion was “just like pissing: you apply a pressure, a very vague pressure, and out it comes.” He told his secretary Mark DeWolfe Howe that the thought had first come to him while standing in the lavatory at the Boston Court House, though added that the lawyer next to him, to whom he immediately related his insight, “didn’t seem much impressed by the simile.”33

  America was not a country to make a celebrity of a judge, much less an intellectual—which was the only thing Holmes ever wanted to be known for; he scorned ambition of office for its own sake. “I wouldn’t do much more than walk across the street to be called Chief Justice instead of Justice,” he insisted. Rather, as he jokingly—or not—told Nina Gray in 1910, “I confine my aspirations to being the greatest legal thinker in the world.”34

  Certainly not many members of the public knew of Justice Holmes as the author of the single most important book in the history of American legal scholarship. The Common Law appeared in 1881, when Holmes was just forty. It was a work of profound learning, and revolutionary, even shocking, implications. Tracing the development of the law to its most ancient roots, Holmes demonstrated that the common law of England, which America had inherited, had always changed and adapted to meet “the felt necessities of the time.” As he put it, “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.”35

  It was the genius of the common law, in Holmes’s analysis, that judges over the course of time fashioned workable solutions to society’s needs even as they decided individual cases—elucidating standards of conduct for the relations between landlord and tenant, buyer and seller, employer and servant, injured and injurer, in an ever-changing and increasingly complex world.

  The Common Law was the genesis of “the most influential school of twentieth-century American legal thought and practice,” in the words of the legal scholar and U.S. circuit judge Richard A. Posner—the so-called Legal Realist movement, which understands and explains the law through its concrete effects, rather than in moral abstractions such as rights and duties or in formalistic rules, as had largely been the practice before.36

  A century and a half later the book remains a classic known to every law student. Few lines in the annals of legal prose have been more quoted than Holmes’s memorable opening salvo: “The life of the law has not been logic: it has been experience.”37

  Yet if the public did not know or care about Judge Holmes as a pioneering legal scholar, his remarkable way with words, which he first displayed in The Common Law, was one steady road to the wider fame that would come. Holmes wrote like no one else, with a style as American and distinctive as Mark Twain or Walt Whitman. To Judge Learned Hand, one of the few in the profession who rivaled him in eloquence of expression, Holmes had a “matchless gift of compression,” an ability to reduce an idea to its essence as did a great poet38—expressing an elusive, subtle, and complex argument with a single, perfectly turned metaphor, aptly timed colloquialism, or startling juxtaposition that exploded like a jack-in-the-box, releasing its concentrated meaning in what did seem like almost a physical jolt when encountered the first, or the fourteenth, time.

  In a day when even the leading newspapers offered little more than a few perfunctory quotes from the justices’ published opinions in their far-from-comprehensive coverage of the Supreme Court, Holmes was always one who was quoted. For one thing, he almost completely avoided legal jargon and cant phrases in his judicial writing. But more than that was a freshness of his prose that reflected a clarity of thinking which commanded attention: one of the other qualities Hand praised in Holmes’s opinions was “a deadly eye” for “question-begging words” that disguised shallow thinking, which Holmes would then blow to pieces with one of his epigrammatic hand grenades:

  The common law is not a brooding omnipresence in the sky.39

  The construction of a statute does not take a party’s property without due process of law simply because it takes him by surprise.40

  The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.41

  Ordinary street cars must be run with reference to ordinary susceptibilities.42

  When the common law developed the doctrine of trade-marks and trade names, it was not creating a property in advertisements more absolute than it would have allowed the author of Paradise Lost.43

  I think it a less evil that some criminals should escape than that the Government should play an ignoble part.44

  Pretty much all law consists in forbidding men to do some things they want to do.45

  The Quakers have done their share to make the country what it is . . . I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount.46

  It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement.47

  The striking words embodied striking thoughts: to Holmes, the act of writing was above all the act of thinking. Finding the right words was not rhetorical ornamentation: it was very the essence of his work of thinking through a complex legal problem.

  By the same token, words and set phrases had a way of tyrannizing and paralyzing thought the moment they became familiar. “The minute a phrase becomes current it becomes an apology for not thinking accurately to the end of the sentence,” he warned; it was a danger a judge had to consciously and constantly guard against.

  He must not stop at consecrated phrases, which in their day were a revelation, but which in time, from their very felicity, tend to stop the endless necessary process of further analysis and advance. He must throw down his naked thought, unswaddled in pompous commonplaces, to take its chance for life. He must try to realize the paradox that it is not necessary to be heavy in order to have weight.48

  No one knew how to strip off excess judicial verbal poundage better than Holmes. Even in his day he stood out as unusual for the economy and brevity of his decisions. Nowadays, when judges think nothing of issuing a sixty-page ruling on a procedural motion, he would be in a minority of one. The standard model for judicial opinions today is the law review article—unsurprising, given that nearly all appellate opinions are now ghostwritten by law clerks fresh from law school—its style summarized by one la
w professor with depressing accuracy as “colorless, prolix, platitudinous, always erring on the side of inclusion, full of lengthy citations and footnotes—and above all dull.”49

  Holmes never worried he might be leaving out an essential point because he viewed everything but the decisive crux of a case as extraneous. “One has to try to strike the jugular and let the rest go,” he said. He abhorred—his word—“those long opinions which are treatises,” filled with “long winded expositions of the obvious,” “padded like a militia brigadier general.”50 His model for a written opinion, he often said, was the ruling that judges traditionally would issue orally from the bench promptly upon completion of an argument. “It should read that way.”51

  His secretary Francis Biddle, who was later attorney general under FDR, struggled like many of Holmes’s admirers to describe exactly what was so powerful, even magical, about his legal prose. “The language of the opinions—‘the skin of the living thought within’ (to use one of his phrases)—had been plucked to the bone, so spare, so concentrated, and yet phrased with such grace,” Biddle observed. “His style was close to the nature of his thought, and one could not separate them.”52

  It was another way of saying that Holmes was a great judge at heart because he was a great thinker: his jurisprudence reflected not only a profound study of the law, but more deeply, of the purpose and meaning of the law in life, and indeed of life itself.

  What was more remarkable in a way was that his fame, when it came, came on his own terms. “Holmes made himself an embodiment of an ideal,” concluded his biographer Sheldon Novick, one “widely shared and deeply felt” among ordinary Americans. That was the ideal of the impartial judge, who stood above the storms and fashions of his times, bringing wisdom, integrity, and the common touch to his job.53

  HOLMES’S REPUTATION has swung wildly over the years since his death in 1935. His standing among practicing lawyers and judges has always held its own, thanks in no small measure to the bountiful stock of aphorisms about their profession he left behind that lawyers never tire of quoting.

  The opinion of the legal professoriate has been another matter. In the 1940s and 1950s Holmes’s reputation came under ferocious attack from Catholic legal scholars who saw his rejection of “natural law”—the idea that law derived its authority and substance from moral precepts originating with God—as a dangerous and “alien” philosophy, inviting immorality, chaos, even fascism. (In The Common Law, Holmes pointed out that most law had its origins not in morality but in the distinctly unholy spirit of vengeance.) “If totalitarianism ever becomes the form of American government,” wrote one Jesuit law professor, “its leaders, no doubt, will canonize as one of the patron saints Mr. Justice Holmes.”54

  Around the same time, liberals were dismayed to discover in the newly published volumes of Holmes’s correspondence that he had been willing to uphold the rights of unions, free speech for socialists, and regulation of the economy not from any ideological sympathy for liberal causes but often in spite of a magnificent contempt for them. And in the aftermath of World War II many were left deeply uncomfortable over what remains Holmes’s most notorious decision, Buck v. Bell, his 1927 ruling upholding Virginia’s law for the involuntary sterilization of the “feebleminded.”

  There was the usual kind of historical amnesia at work. Catholic legists and exponents of the natural law philosophy in Europe had no trouble with fascism, just as they had had no trouble earlier with hereditary monarchy: many were notably among Mussolini’s most ardent early supporters.55 And however much the Nazi genocide forever discredited the eugenics movement, it is at least worth remembering that, in 1920s America, eugenics enjoyed the enthusiastic support of many progressive-minded intellectuals, the founders of Planned Parenthood among them.

  There is however a nasty and personal tone to some academics’ vituperations about Holmes that suggests deeper antipathies. Agnes Meyer, the influential Washington journalist, philanthropist, and social activist (her husband later owned the Washington Post), was a neighbor and friend of Holmes’s who got to know him well, and she later observed that his superabundance of charm came back to haunt him after his death. While Holmes was “too gifted,” in her view, ever to “trade on his personality, as many charming men and women do,” it nonetheless “gave him a following of sycophants, who overdid the Holmes cult and hurt rather than helped his place in history.”56

  There is nothing so infuriating as hero worship in others, and Holmes’s secretaries and the many young Washington lawyers who flocked around him freely admitted to succumbing to that emotion. Whether it is fair to call them sycophants, there was no denying the single-mindedness with which they tended the image of their hero, both before and after his death. Felix Frankfurter, Harvard lawyer, energetic reformer, New Deal insider, and future Supreme Court justice; and Harold J. Laski—“an astonishing young Jew,” in Holmes’s words, a polymathic British scholar and wunderkind who met Holmes in 1916 and exchanged hundreds of remarkable letters with him in the following years—were especially active. They arranged for Holmes’s speeches to be published and made sure that a special issue of the Harvard Law Review, dedicated to his life and work, appeared on each of his significant birthdays; they filled liberal publications like the New Republic with articles, some signed and some not, extolling his opinions upholding social legislation and free speech; they commissioned imposing portraits of the justice to hang at Harvard Law School and the U.S. Supreme Court.

  Holmes for his part did little to endear himself to the academic legal community. He notoriously counseled Frankfurter against a career as a law professor, warning that “academic life is but half life,” and dismissively observed that “professors as a class . . . dogmatize on unrealities.”57 He almost never cited articles by law professors in his opinions.

  And then there is the fact that moralists of all political persuasions are not exactly renowned for their sense of humor, and humorless moralizing is the predominant mode of thought in much of academia today. Many of Holmes’s academic critics, however, seem not only incapable of perceiving Holmes’s jokes but even of grasping that such a thing as a joke exists. A more enduring fact about academic life is that taking on the great is the most reliable way for those who will never attain greatness themselves to gain attention for themselves.

  The result has been a stream of anti-Holmes vituperation that at times borders on the hysterical. He has been called “dark” and “destructive,” unprincipled and cynical, obsessed with “morbidity” and “war, power, and struggle.”58 The law professor oddly chosen to take over Mark DeWolfe Howe’s unfinished official biography of Holmes after Howe’s death in 1967, Grant Gilmore (who in turn died in 1982, having done little more than write a rambling introduction), published a brief and scathing assessment typical of Holmes’s latter-day academic detractors:

  Holmes is a strange, enigmatic figure. Put out of your mind the picture of the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus. All that was a myth, concocted principally by Harold Laski and Felix Frankfurter, about the time of World War I. The real Holmes was savage, harsh, and cruel, a bitter and life-long pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak.59

  Even Holmes’s more admiring biographers of the past thirty years—law professors all—seem nonplussed that he uttered things unsayable in the faculty lounge, and see dark shadows in his psyche at every turn: his enthusiasm for work mere calculating “ambition,” his lively correspondence an exercise in “self-absorption” or a desperate search for “flattery,” his friendships with female acquaintances “womanizing,” his reflections on the war a symptom of “survivor guilt,” his jokes about old age a masquerade for his deepest fears.60

  “Biographers,” cautions one of the best practitioners of the art, “have a duty to be sympathetic to their subjects. As soon as I begin to discover that a
biographer is treating his subject with malice, envy, dislike, or contempt, I begin to suspect the quality both of his motives and of his human understanding.”61

  A sympathetic view of Holmes might begin with those who actually knew him. None of them described a Freudian basket case: they saw a man of unequaled moral courage and philosophical wisdom about life, great human kindness and generosity, and abiding good humor. He left a deep impression on the son of one old friend. Sir Frederick Pollock was an English jurist whose friendship with Holmes spanned sixty years, their warm and wide-ranging correspondence filling hundreds of pages. Once, Pollock’s son invited the already famous American judge to visit him at Cambridge University for the weekend. John Pollock was a callow undergraduate; Holmes, then sixty years old, was the chief justice of Massachusetts’s highest court. “He stayed in a set of the less good undergraduate rooms in college empty for the moment,” recalled the younger Pollock, “took his meals with me, walked with me, met my friends, smoked and talked as only undergraduates can, enjoyed himself, to all appearance, hugely, and left, without, I believe, the Master and Fellows having an idea that they had had a man of note within the gates.”62

  Holmes devoted himself to friendship with the same energy he gave to his work and other pursuits. He wrote literally thousands of letters to friends over his life—there are an estimated ten thousand personal letters among his papers at the Harvard Law School archives, most of them as yet unpublished—that chronicle scores of warm and abiding friendships that he worked hard to keep up across the natural gulfs of time, distance, and age. He wrote of his work and thoughts, the books he was reading, the flowers and birds he saw on his walks; he seldom would permit even a single day to pass without replying whenever a letter from a friend arrived on his desk.

  The dozen or so mostly rather younger female friends to whom he wrote affectionately throughout his life laughed off his occasional flirtatious remarks and treasured his openness, his emotional and mental intimacy, and the way he treated them as complete intellectual and spiritual equals. Anna Codman, a neighbor on the North Shore thirty years his junior, whom Holmes called on once a week for an hour’s talk during his summers, described their remarkable and enduring relationship in a letter she wrote to Mark Howe in 1942, when he was beginning work on his Holmes biography: