Oliver Wendell Holmes

by Stephen Budiansky

  “For once thank the Lord we were unanimous,” Holmes wrote Mrs. Green when the decision was announced. It “excited a good deal of talk—and I appear in caricatures as a toreador or as lassoing a mad bull.” The opinion was in Holmes’s view “only a rather mechanical development of a necessary result but some of the lads liked it—I dare say because I was not on the other side.”42

  The case did break ground in one key area, and would in retrospect be seen as a landmark ruling halting the Court’s trend of ever-narrowing readings of the Constitution’s Commerce Clause: Holmes held that even though the sales at stockyards took place within one state, they were part of a “current of commerce” among the states that came within Congress’s power to regulate.

  Approaching the end of his administration in 1908, Roosevelt also made very public show of appreciation toward Holmes in a speech on conservation to the state governors at their meeting in Washington. Roosevelt concluded his remarks by quoting from Holmes’s ringing opinion in a recent case that had upheld a New Jersey law barring the out-of-state sale of water from its lakes and rivers. “The state, as quasi-sovereign and representative of the interests of the public, has a standing in court to protect the atmosphere, the water, and the forests within its territory. . . . There are benefits from a great river that might escape a lawyer’s view.”43

  Another recent opinion of his had offered an equally emphatic support for the government’s power to protect natural resources, a cause that TR had made as much a part of his presidency as his crusade against the trusts. Holmes’s decision had affirmed an injunction sought by the state of Georgia against copper plants in Tennessee that were poisoning its forests with sulfur emissions. There was a question whether a state had standing to bring a suit for damage to property in private hands, but Holmes ruled that “the state has an interest independent of and behind the titles of its citizens, in all the earth and air within its domain. It has the last word as to whether its mountains shall be stripped of their forests and its inhabitants shall breathe pure air.”44

  Holmes was in the audience for Roosevelt’s speech to the governors, and that night was invited to a private dinner at the White House. “Had a very nice talk with the President (in which incidentally we said one last word about the old No. Securities Case & that matter is finished),” he reported to Mrs. Gray. But he added: “We like each other by temperament though I cannot again take his friendship seriously.”45

  What irked Holmes more than anything was the failure of the president—and the newspapers and the interest groups—to see that politics had nothing to do with his judicial opinions, however great their political consequences. “I think he hardly realizes what I repeated to him last night that a question before a judge is a problem—with which personal matters and preferences have nothing to do,” he said of Roosevelt, as the president prepared to leave office.46 Holmes had the same annoyance when he dissented strongly in a labor case that year, Adair v. U.S., in which the Court struck down a federal law that as part of an effort to ensure labor peace had prohibited railroads from enforcing “yellow-dog” contracts, which made it a condition of employment that workers pledge not to join a union.

  The majority, applying the same reasoning it had used in holding that the Fourteenth Amendment barred the states from infringing on “liberty of contract,” ruled that the due process protections of the Fifth Amendment similarly constrained Congress. Holmes protested that the act “simply prohibits the more powerful party to extract certain undertakings, or to threaten dismissal or unjustly discriminate.” He reiterated his view that “the word liberty in the amendments has been stretched to its extreme by the decisions” of the Court.

  But he was equally irked at a dinner for labor leaders he attended at the White House later that year where he listened to a series of speeches attacking the courts for their antilabor decisions. “As we were leaving I told the man who was most savage on the judiciary—a plasterer I believe, that he didn’t appreciate us—that the workingman didn’t think anything was good except what was on their side—that my job was simply to see that the parties were held to the rule of the game and that when I was on my job I didn’t care a damn for him or the President or Morgan and Rockefeller.” He complained to Clara Stevens, “I suppose the capitalists think me dangerous and the labor people think me an eccentric slave of capital—so I hope I am all right. Nobody wants a dispassionate man.”47

  Nonetheless, he invited a young lawyer he had sat next to at the dinner, a union man “who had fought his own way up,” to come and see him, and the next morning they had a lively half hour’s talk at 1720 Eye Street. Holmes was genuinely sorry when he could not stay for luncheon. “I wish I could have talked more than I had the chance to with the labormen,” he said.48

  AT THE END of each term of the Court, Holmes felt like “a mere law machine,” he quipped. “Put the problem in the hopper and it would grind you out a result pretty quick—but not much good for general conversation.”49

  He always looked forward to his rejuvenating trips to London to shake off the effects of seven months of single-minded focus on the law. He continued to insist that it was Fanny who urged him to go for a rest and change of scene. But one of Fanny’s few surviving letters—it was written just after Holmes boarded the Saxonia in New York on June 11 to sail to England in the summer of 1907—revealed the more torn feelings that both experienced about these jaunts of his.

  Fanny had come to New York to see him off. Whether to hide her own sorrow or from the crush of the crowd, she had turned away abruptly at their parting on the deck, and had caught a look of hurt and anguish on her husband’s face when she glanced back again. On her return to Beverly Farms she wrote,

  My dearest—dearest—Dearest

  Please Please you did not think that I did not care. I was in a maze and I shall be in it till Heavenly September comes. I wanted to throw myself away when you went out of sight—Why could my wings not have sprouted and carried me into your state room for five minutes. I am so glad those men had their way and took the snap shot for when I got down here your poor face all filled with loss and grief as I saw it last made me almost faint. But the Blessed Herald had another last look for me when I opened it and saw you again I almost shouted He did know I was his old loving wife his other half left here to love and long for him.

  It is cold and apple blossom here pretty enough for those who like it. Everything that the servants can do to make me comfortable they are doing. Even Katie made some good biscuits for my tea. Dorothy staid with me till after luncheon and saw me on the express to Mount Desert. She went to Salem.

  But Fanny without her husband finds the joyless house very mournful tonight.

  Dont ever think I am rough or cold or anything but your—

  Adoring wife

  11 June 1907

  How did you dare to weep when I could not reach you to comfort you Dont dont again Please please dont50

  In England, Holmes visited his friends the Scotts in the country—“from whom I receive I really believe the most generous, absolute and disinterested love I ever received from anyone except my wife. It fortifies one’s soul even while it makes one tremble lest he should not deserve it”—and “ran over to Paris for two days,” where a “fair friend” took to him to lunch at Versailles, and where he was amused at the mix of “Western School Marms” and “painted ladies” he encountered in the foyer of the Marigny Theater.51

  When Baroness Moncheur expressed some mild disapproval of his gadding about and accepting invitations in London to dinners and weekends, he bristled defensively. “What the deuce should I do if I didn’t?” he shot back. “Improve my mind in the British Museum and National Gallery I suppose?”52

  He ended with a visit to the Castletowns in Ireland for the last two weeks of August. “My usual routine, this time more intent on old friends than on new acquaintances,” he wrote Mrs. Gray.

  But I have talked with all sorts, from princesses to haberdashers, and tried
to get their touch of human nature that alone pays one for the trouble of talking. A dinner at which one only gets one’s victuals is a failure. . . . I whizzed about in motors a little, but I don’t like them except when there is some special reason for getting over the ground in a hurry. The Scripture says that the horse is a vain thing for safety, but the motor is a shade or two worse.53

  Still, he said, he did not think he would do England again alone. “It is getting too hard and anxious to leave my wife.”54

  CHAPTER 12

  1720 Eye Street

  True to his word, Holmes had not only refrained from offering any opinions about Fanny’s remodeling and furnishing of their new house in Washington; he had not even set foot in the house until a few weeks before they moved in. But when he was at last given a tour he pronounced “every room from kitchen to trunk room” perfect, and “charming.” Everything, he said, was much more spacious than their Boston house. “I really have got a home,” he told Mrs. Gray.1

  The library on the second floor was two large adjoining rooms, each fitted with white-painted bookshelves covering all four walls from floor to ceiling, enough to hold most of his twelve thousand books. The south room, at the back of the house, was Holmes’s study, and its two tall windows faced the sunlight and looked out on “a trim little yard with borders and grass in the middle.”2

  In the yard were magnolias and double-flowering apples and a paulownia tree with delicate perfume-scented purple flowers and a wisteria that climbed the adjoining wall, all of which provided a succession of flowers through the spring. Holmes marveled to friends that roses “grow here if you simply stick them into the earth.” Within a few years there were profusions of climbing roses on the fence beneath his window “and some more pretentious ones in the border,” he wrote Clare.3

  An alley running across the back protected the lot from “the danger the sunlight will be cut off by a big apartment house—such as spoil half the houses here.” It had the feel of living in a “large country town,” Holmes said. “One sees and hears crows (which I adore) and wild birds light and sing sometimes even in my backyard.” In the distance, almost directly south over the intervening roofs, the Washington Monument was framed in the two library windows. “I love that monument for the eternal wonder of changing light upon it—at times an aerial dream—at times a plain stone fact—but never the same,” he said.4

  1720 Eye Street, with Holmes’s 1926 Packard out front

  The library was the undoubted life center of 1720 Eye Street. The justice wrote his decisions there, usually working at his grandfather’s stand-up mahogany desk that directly faced the right-hand window, his head ringed in a halo of smoke from one of the large cigars he ordered by the hundred—Puerto Ricans for himself, more-expensive Havanas for his friends—from the old Boston grocers S. S. Pierce.5 His grandfather’s other desk, where he sat when he was not writing, was a seven-drawer Federal-style cherry piece with beautiful simple lines, the top of which Holmes always kept carefully covered with a sheet of blotting paper. It had its left end against the wall between the two windows, so the chair was directly in line with the other window of the study, to Holmes’s left.

  The library was where he received his important visitors, and when he and Fanny had dinner parties the men would gather there afterward to smoke and talk. A pair of crossed swords that had been his great-grandfather David Holmes’s in the French and Indian War hung over the fireplace on the west wall, and framed photographs of Clare Castletown, Mrs. Curtis, Margot Tennant, and other friends hung about the room.

  In the study, with his secretary H. Chapman Rose

  There were some comfortable chairs, but mostly there was a kind of rugged simplicity. “He did not favor any of the modern paraphernalia of an office,” recalled his secretary Augustin Derby, and Holmes never budged from the nineteenth century in that regard: “How I loathe conveniences,” was one of his cherished sayings. His secretary sat in the adjoining north room; a pair of glass doors looked out into the hall at one end of the room; the sliding doors at the other end that divided the two studies were always open, so the secretary could see the justice at work and respond to any call without the need of a buzzer or any other gadget. A telephone had only recently been installed when he arrived for the 1906 term, Derby learned, but it was placed in his room; Holmes disliked using the phone himself, claiming he found it difficult to hear. A typewriter a subsequent secretary attempted to smuggle in to answer the justice’s correspondence was discovered after a few days and promptly ejected.6

  The rest of the second floor had the Holmeses’ bedroom and bathroom. On the third floor, Fanny had arranged a suite of rooms for Holmes’s young cousin Dorothy Upham. When they moved in in December 1903 she was in her senior year at Smith.7 Ever since her mother died in 1897, the Holmeses had played an increasing part in her life, inviting her to visit during school holidays and looking after the trust fund she had inherited from Holmes’s sister. Her father, Oliver Wendell Holmes Upham, who was Dr. Holmes’s nephew, had apparently been in declining health or competency for a number of years. Amelia Jackson Sargent in her will had provided a trust for O.W.H. Upham’s wife and children, but left nothing to him directly. In 1901 Holmes and his other cousin, William P. Upham, had set up a trust to provide him an income out of the estate of John Holmes—who had likewise apparently not thought O.W.H. Upham fit to handle an outright bequest, as the others received.8

  After her graduation in 1904 and her father’s death the following year, Dorothy came to stay at 1720 Eye Street. “Dorothy is a cousin whom I call my niece and commonly is called as, who lives with us. She was left alone and we saw no other way,” Holmes explained to Clara Stevens. The Holmeses took Dorothy with them to several White House receptions during the Roosevelt administration, and Mrs. Holmes hosted some lunches for her and other young women; but though Dorothy told Mark Howe years later that she “loved OWH who was always sweet and kind,” it had to be a somewhat stifling existence for a young woman right out of college. The justice, she recalled, was always correcting her pronunciation of words, and Mrs. Holmes had strict rules that Dorothy was not to receive male visitors without a chaperone. The one time Fanny came in on her sitting chaperoneless in the drawing room with a young man, she had ordered him out of the house immediately. The next morning when Dorothy came down to breakfast, she found Holmes alone, having been sent by Fanny to deliver a stern lecture. She remained with the Holmeses until her marriage in March 1909 to Thomas Wayland Vaughan, a noted oceanographer and geologist, who later became director of the Scripps Institution of Oceanography.9

  Dorothy Upham Vaughan

  The more public rooms of the house reflected the bygone age of servants and formal entertaining and manners that, within a generation, would seem from another world entirely. On the first floor was a small formal reception room where visitors would wait while they were announced, a larger front drawing room where Fanny spent much of her time and where guests were entertained, and a substantial dining room at the back with a table that could seat two dozen. In a half basement were the domestic offices: kitchen and pantry, the “help’s sitting room,” and the “colored man’s room.” In the attic were bedrooms for the other servants.10

  As Holmes’s secretary Arthur Sutherland later recalled, the house “would have given an interior decorator severe pain.” It was furnished in a complete hodge-podge of styles: New England heirlooms passed down from the Holmeses and Jacksons—Chippendale and Hepplewhite chairs, a Sheraton and a Duncan Phyfe table, fine family silver—side by side with all sorts of geegaws Fanny had picked up at The Pagoda (“importer of oriental oddities”) and other local shops, including lampshades covered with artificial butterflies, bronze Chinese dogs and Buddhas, carved figurines, and a varying collection of a half-dozen tame birds and the occasional cat to complete the household. But as Sutherland noticed, Holmes and Fanny liked things just “as they were; were completely poised in their own tastes, and the suggestion that they should have compl
ied with somebody else’s idea of how to live would only have amused them.”11

  Until they drew back from their official entertaining around the time of the First World War, they filled the house with a number of large dinner parties; Fanny drew up seating charts and the guests included the Lodges, the Baron and Baroness Moncheur, the Russian ambassador, the secretary of state, and Holmes’s fellow justices.12

  “Would have given an interior decorator severe pain”: the reception room at 1720 Eye Street, looking into the front parlor

  Holmes did not believe in economy when it came to ordering the best food or having help to run the household. There was always a full-time staff consisting of cook, waitress, one or more maids, Holmes’s Court messenger, and another African American man, Earle H. Jones, whom Holmes employed for years as an “inside man” (which he found in Washington was rather grandly known as a “butler”) to help with the housework, run errands, and look after the house during the summer.

  His driver Charles Buckley, who drove the justice everywhere in a horse and carriage until 1925, when a large Packard sedan finally took their place, also worked full time, but Holmes employed him as an independent contractor—his secretaries always believed he did so to limit his liability in case of an accident, having observed that Buckley was never entirely comfortable with the transition from coachman to chauffeur. (One time Buckley narrowly missed hitting a truck. Holmes turned to his secretary who was riding with him, and exclaimed, “My Lord, sonny! What a blow to jurisprudence if he’d killed both of us!”)13