The house acquired a self-mocking name, “The House of Truth,” which Percy recalled “some humorist conferred upon us” in token of their earnest discussions.75 Holmes took his young friends’ “asms for isms” and “upward and onward” talk with amused tolerance. He was particularly unmoved by the universal enthusiasm in the house for Teddy Roosevelt’s Bull Moose campaign of 1912. TR had galvanized progressive reformers by seeking a comeback as a third-party candidate after losing his challenge to Taft for the Republican nomination that year. But as Holmes observed to Einstein, “The Bull Moose manifestos struck me as exhibiting a strenuous vagueness that produced atmospheric disturbance without transmitting a message.”76
Still, Holmes said, “I can talk with those young chaps more easily than with most of the older men who have lost their enthusiasm.” A notable example of the latter was his old Boston friend Henry Adams, who lived just north of Lafayette Square, and whom Holmes used to stop in and see on his way home from Court. But he had finally given it up as too much work. “At times he poses as an old cardinal and wears on your nerves by telling you that everything is dust and ashes,” Holmes told Baroness Moncheur.77
And Holmes always liked telling how Walter Howe, one of the young admirers of TR to whom he had been expressing his doubts, “stuck me under the fifth rib” with his riposte, “You would found legislation on regrets rather than on hopes”—which Holmes said he thought a good comeuppance to his perennial skepticism. It was a pleasure, he said, to see “more faith and enthusiasm” among “the young chaps” than he himself could always muster.78
HOLMES DROVE HIMSELF so hard during the Court term that when the work ended each June it took him several weeks before he could feel he had “settled down to vacation.” As much as he looked forward to getting away to Beverly Farms each summer, the arrangements for the trip were a torment; he would fidget over sending off the trunks, dread missing the train. “I am a bad case of train fever and am more worried by things of this sort than by a great constitutional case,” he admitted. “The kind of thing that women have to deal with all the time, the simultaneous pressure of many little things to be attended to, drives me mad.” They would get to the station hours ahead of time, just to be safe. Once he had his secretary hunt up the stationmaster to let them board a full hour before the scheduled departure time. “Sonny,” he announced with satisfaction as he settled into his private room, “this is the way to catch a train!”79
The servants usually went a week ahead of time to take care of the final preparations of opening the house, but that meant additional worries and disruptions to his comfortable routine that also frayed his nerves. His old attendant from the court in Boston, James Doherty, would meet the “girls” at Boston’s South Station, see that their luggage was forwarded, and get them in a taxi to North Station for the train to Beverly.80
But once the turmoil of the trip was behind him Holmes was able to indulge himself in a summer of “busy idleness.” In 1908 he had agreed to purchase the Beverly Farms property, paying $17,000 for a two-thirds interest and buying the other one-third later. The Holmeses added a small rose garden (“bossed by this great expert”) on a steep slope behind the house; Holmes later bought an additional piece of land at the bottom of the hill to preserve the row of trees and masses of rhododendrons that grew there, and to block a rumored private road that might have run right along his fence.81
But overall little changed in their reclusive existence there. “To keep off strangers,” the phone, 14 Beverly Farms, was listed under Fanny’s name. He played solitaire, slept, and went for long drives with Fanny along “beautiful seashores and pretty inland farms” every day the weather was fine. “I am very quiet and duties have ceased, if I only could get rid of the feeling that there must be something that I ought to be doing,” he wrote to Ethel Scott during a typical summer there. They occasionally had close friends to stay for a few days, like the Pollocks or Ethel Scott when they visited America, but other than that saw very few people, and had less and less to do with the fashionable world of summer residents around them in Beverly Farms and Manchester.82
Most of all he looked forward to reading. He tried to devote some time to “books that bear on the foundations of the law in one way or another”—economics, sociology, science, and “even law.” But toward the end of the vacation he would give up, and pursue “lighter themes.” Only Holmes could call Plato’s Republic or Homer’s Odyssey in the original Greek light reading, but to “sport with ideas” was always his greatest pleasure.83
A portion of Holmes’s 1911 reading list, including Plato’s Symposium in Greek, the letters of Flaubert to George Sand in French, Alfred North Whitehead’s Introduction to Mathematics, and The Industrial History of the United States, by the social activist and economist Katharine Coman
So during his summers at Beverly he finished Dante, reading Purgatorio and Paradiso (“the last I think on the whole is my favorite of the three, and I suppose it is the least read. People prefer stories of bad boys to those of good ones”); worked his way through the Oxford Book of French Verse (“poetry or prose, the Mussoos mean business when they make love to a lady”); ordered Descartes, Aristotle, and Berkeley from the Everyman’s Library (“they are bores invariably, but they leave a residuum”); dipped into Epictetus, which he had never before read (“an astonishing book”) and Montaigne, which he had, but which struck him in a new light when he picked it up in the right mood on one vacation (“What a reasonable bird he was! I don’t know whether one would have liked him in the flesh”); tackled Spinoza’s Ethics, which pleased him (“his dream of the Universe, which he prefers to call God, and I call X is more nearly mine than that of any of the older writers that I know”) and Henry James’s The Ambassadors, which did not (“a narrow world of taste and refined moral vacillations. . . . My general attitude is relatively coarse: let the man take the girl or leave her. I don’t care a damn which”); and forced himself, on his English friends’ enthusiastic praises, to give Jane Austen another try, though he admitted—writing the two words in very tiny print in a letter to Pollock—that he found her “a bore.”84
Tolstoy and Dickens held his interest better when it came to fiction, as did “frisky French” novels and the spy thrillers of John Buchan: he devoured Mr. Standfast almost in one day, lying on the couch from breakfast to midday dinner.85
Usually by the end of the summer he succeeded in feeling “richly idle,” though he half-jokingly told Clara Stevens that even his regular games of solitaire had a way of feeling like a duty he did not dare to neglect.86
Then the return to Washington was another frenzy of packing and travel arrangements; the servants were usually given their annual vacation then, so the Holmeses were again on their own for a couple of weeks when they arrived back at 1720 Eye Street.
One September they broke their journey with a visit to New York, but Holmes did not care much for the feel of the city:
I don’t like hurry as an ideal. . . . I don’t like money as so exclusive a criterion. My wife said the churches used to reach nearest to heaven but now business looks down on the steeples. But Grants Tomb brought the tears into my eyes. . . . Central Park and the Met Art Museum are noble. . . . I went to some not too high shows. . . . But I am glad to be out of it and still solvent. I remembered what Cohen is said to have remarked on his receiving his hotel bill. “I’ve got more than that.”87
On returning to Washington every fall one of his first acts was to copy into the Black Book the list of books he had read over the summer, which he had jotted down in the back of his checkbook while he was away. He also made a solemn ritual of placing on the shelf of his library the printed set of his opinions from the previous term. He would drop off the pages with a bookbinder in Boston each year on his way north, to be bound into a handsome leather volume, stamped on the spine in gold letters MR. JUSTICE HOLMES’ OPINIONS U.S. SUPREME COURT. “I never feel that the last term’s work is finished until I have solemnly deposited my little vo
l. of decisions in the shelf by the side of the others,” he told Leslie Scott. “Also I don’t feel as if books had been read until they are entered on my permanent list.”88
He added: “And this is a man supposed to be entitled to the respect of his fellows!”
CHAPTER 13
Holmes Dissenting
The elevation of White to chief justice was one of a half dozen appointments that Taft made in just over two years from 1909 to 1912 that completely remade the Court.
Taft had repeatedly bemoaned the aging Court and what he feared was its declining vigor and reputation. “The condition of the Supreme Court is pitiable, and yet those old fools hold on with a tenacity that is most discouraging,” he wrote in 1909 to a good friend—Horace H. Lurton, a federal circuit judge whom he would name to the high court when the first vacancy during his term opened up. “Really the Chief Justice is almost senile; Harlan does no work; Brewer is so deaf that he cannot hear and has got beyond the point of the commonest accuracy in writing his opinions; Brewer and Harlan sleep almost through all the arguments. I don’t know what can be done.”1
On the eve of his successor Woodrow Wilson’s inauguration on March 4, 1913, Taft called in the newspaper reporters to his office for some farewell observations on the successes and failures of his administration. He told them that the thing he was proudest of was having appointed six of the nine current justices. “And I have said to them, ‘Damn you, if any of you die, I’ll disown you.’ ”2
The appointments did little to alter the Court’s ideological balance, which retained its conservative, if vacillating cast. The Court would continue as before to strike down most progressive labor and economic laws, with only the occasional not very clearly reasoned exception. But there was no doubt that Taft’s selections injected new life and prestige into the Court. Joseph H. Choate, a leading member of the bar, declared at a dinner given in Taft’s honor by the American Bar Association: “Mr. Taft has rehabilitated the Supreme Court of the United States.”3
Of Holmes’s colleagues when he joined the Court, only White and Justice Joseph McKenna remained. As second in seniority among the associate justices, Holmes now sat at the center of the bench on the chief justice’s immediate left; McKenna was on the right.
Chief Justice White
Holmes mostly liked the new brethren, even if he was mostly unimpressed by them. The most able, he thought, were Hughes and Willis Van Devanter, a Wyoming man appointed to fill White’s seat. Van Devanter was an expert on Western land law, and Holmes found his careful edits on the returns of his opinions incisive and nearly always accepted them. But when it came to writing his own opinions Van Devanter suffered from what one of his closest friends called “pen paralysis.” Hughes later observed that if his careful and well-grounded statements in conference could have been taken down stenographically they would have made excellent opinions with little editing, but Van Devanter just could not get himself to begin writing and was always behind in his assignments.4
Taft’s final two appointments were Joseph R. Lamar, a former justice of the Georgia Supreme Court, chosen mainly because Taft was seeking a Southerner for geographical balance, and Mahlon Pitney, who had been chancellor of Delaware’s court of equity. Lamar was an amiable man who, like White, looked like a justice from central casting, tall, with a deep, resonant voice and a domelike head; a reliably cautious economic conservative, he embraced liberty of contract and upheld economic regulation only when it could be justified on the grounds of public health, safety, or morals.5 Pitney aggravated Holmes at first with his long-windedness, though after Pitney’s death in 1924 Holmes told Frankfurter, “I learned to appreciate more and more his faithful, serious devotion to his job, his great industry and . . . his intellectual honesty. It is hard to get a man as good as he was, whatever reserves one may make in superlatives.”6
Holmes gave Baroness Moncheur his “very private” assessment of the new Court:
Lurton thinks like a lawyer, though I suspect his economics are superstitions. Hughes has taken hold of work with industry and acuteness. I doubt if he has great analytic power—time will show. . . . Van Devanter knows a great deal about certain departments of the work and is pleasant. Lamar has not written yet, but seems a very nice fellow and intelligent. . . . I think the new Chief worries over his work—he thinks like a legislator of consequences, all the time—and sees the ruin of the republic in a wrong decision—which makes it harder for him, but is valuable for the Court.7
Holmes constantly complained in private, though, of his colleagues’ tedium in conferences. They “bore me with their not unavailed opportunities for repeating the arguments that already bored me once,” he told Mrs. Green. Holmes prided himself on not losing his calm even when the discussions got heated. But he could not always resist a veiled swipe. “I stop from a scalping expedition in which I am trying to remove the place where the hair ought to grow from the head of one of my brethren,” he wrote to Mrs. Gray during a break in one conference. “As of old my brethren pitch into me for being obscure and when I go nasty I say that I write for educated men—of course, as if referring to some others than my interlocutor.”8
Most of all he chafed at having to submit his written opinions to “the censors who prune my exuberance,” and forced him to substitute “some pap that would not hurt an infant’s stomach.” Again, Holmes would always “good naturedly agree” to the changes imposed on him, Hughes observed, but he never stopped being privately irked.9
The most severe of his “censors” were McKenna and William R. Day.10 Though Holmes said he was “very fond” of Day, who had joined the Court just after him, he once remarked that Day’s “opinions set like plaster of Paris; there is no budging them.” A small-town corporation lawyer from Ohio, firmly rooted in nineteenth-century laissez-faire individualism and a narrow view of the federal government’s powers, Day had been unexpectedly catapulted onto the national stage when McKinley had made him his secretary of state during the Spanish-American War. Dean Acheson thought Day looked more like one of the Seven Dwarfs than one of the nine justices: a “small, frail man whom a breath of air would carry off,” with a balding head too big for his body and protuberant ears.11
McKenna—another small man, “bearded, birdlike,” who Acheson remembered always appearing in rubbers, white scarf, and overcoat no matter the time of year or the weather—had intended to become a priest before switching to law, and Holmes also had kind things to say about him as a person, calling him “a truly kind soul” and possessing “a sweet nature.”12
But time and again, to keep their votes in an opinion he was given to write, Holmes was forced to remove the arguments he thought most germane and the turns of phrase that most pleased him. “The boys keep a pretty sharp watch on me,” he wryly remarked. “When I get some phrase that strikes me as vivid the other lads are apt to think it had better come out. So I tell them that I prepare a plum pudding and then one pulls out one plum and another another until I have to offer to the public a mass of sodden dough as my work.”13
To Frankfurter he offered a more striking metaphor to describe the process his prose was subjected to. After he was forced to cut a line from his opinion in Western Union v. Speight, in which he had reiterated one of his favorite dicta that it was not “evading” a law to walk right up to the line the law allows, he told his young friend, “As originally written, it had a tiny pair of testicles but the scruples of my brethren have caused their removal and it sings in a very soft voice now.”14
Justice McKenna
HIS EXUBERANT STYLE more than once caused some of fellow justices who had voted with Holmes in conference to withhold their support once they read his draft opinion.
In one not terribly important case Holmes had been assigned, his first draft caused one or more of the justices to switch their vote, losing the majority. He then circulated a second draft, ruling the opposite way, but again losing the majority. He finally sent to the Court printer a one-paragraph memorandum for ci
rculation bearing the title THIRD ATTEMPT TO GET A MAJORITY. He proposed to simply dismiss the case in an unsigned “per curium” opinion, based on a narrow technical precedent that Justice Brewer had called to his attention. The Court agreed.15
But he was never happy about the compromises he had to make on more substantial cases. One that rankled him ever after was a very high-profile decision he delivered at the end of the 1913–14 term. The Pipe Line Cases arose from a law that required owners of pipelines to transport the oil of any shipper. The legislation was aimed directly at Standard Oil, which owned most of the pipelines in the country and which forced owners to sell their product to the company before they would allow it to enter one of their pipelines. Because transportation by pipeline was much cheaper than by rail, Standard Oil could keep the prices it forced the sellers to accept artificially low.
The case for the government was argued by Solicitor General John W. Davis on October 15, 1913. Weeks, then months went by with no word from the Court on its decision.
On the very last day of the term, June 22, 1914, Holmes delivered his opinion for seven of the other justices, with Chief Justice White writing a separate concurring opinion. Holmes had been given the case just the week before, after one or more of the other justices had tried and failed to produce an acceptable decision, and White finally turned to Holmes, as the Court’s nimble draftsman, to come up with something that would allow them to get the case off their backs. The very morning the decision was announced Holmes was still making revisions in an effort to satisfy the majority. “I replied to everyone that I would strike out everything between title and conclusion” if that was what it took “to enable me to get the case off per contract,” he said with exasperation.16
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