In his original draft, Holmes had forthrightly asserted that Congress has the power to discourage monopolies by declaring oil pipelines to be common carriers, thus requiring them to offer their services to all comers at the same rate. He received only a single concurring return, this time from Day.
In response, he ended up cutting out several entire sections that constituted the substance of his argument, weakly concluding that there was no need to rely on any disputed powers of Congress to make pipelines common carriers, because they already were common carriers in everything but name.
It was a classic example of begging the question—assuming the very conclusion that the case had been brought to establish—and Holmes was privately disgusted with the outcome, vowing never to do it again. “I put my name to something that does not satisfy or represent my views,” he wrote his retired colleague Justice William H. Moody a few months later. “I never was so disturbed but I thought it my duty to let it go as the majority was content and the case had hung along in other hands for months.”17 Holmes added a handwritten annotation on the printed copy of the final opinion in his bound volumes: “I regard this as inadequate reasoning, but was compelled to strike out what I thought the real argument, and assented to prevent the case going over the Term.”18
Some of the brethren’s “pruning” reflected prim disapproval of Holmes’s rhetorical style: his colloquial language, literary allusions, epigrams, and invocations of common knowledge that they worried sounded undignified or unjudicial—though they were the very qualities that made his opinions so memorable, readable, and to the point. And even some of his allies on the Court worried at times that Holmes’s brevity and linguistic flair had a way of shading into glibness: that he sometimes was ignoring not just irrelevant arguments but genuine difficulties in disposing of cases so handily. “The old man leaves out all the troublesome facts and ignores all the tough points that worried the lower courts,” his later colleague Justice Harlan Fiske Stone once complained to his law secretary. “I wish I could make my cases sound as easy as Holmes makes his.”19
As in Boston, his style also gave his enemies outside of the Court a handle, echoes of the dismissive comments that he was more of a “literary feller” than a serious jurist. When a lecturer at Northeastern University Law School, John M. Zane, a few years later published an ad hominem attack on Holmes dripping with academic condescension and charging Holmes with “legal heresy”—Holmes’s sins included his Lochner dissent, his rejection of natural law, and his “indefensible” and “atrocious” theory that “courts can and do make law”—he first damned Holmes with faint praise as “a man of letters” and “a master of epigrammatic expression” before going on to dismissively assert that “epigrams, unfortunately, are either half-truths or not truths at all.”20
But the more substantive objections his fellow justices on the White Court raised to his opinions went to the heart of the Court’s muddled due process jurisprudence, and what Hughes called their inclination to “squirm at some of Holmes’s generalities, fearful of their implications.”21
Holmes never ceased trying to strike a decisive blow against the inconsistencies the Court had worked itself into in that area, boldly stating his fundamental views on the flexibility that the Constitution was intended to give future generations. “We must be cautious about pressing the broad words of the Fourteenth Amendment to a drily logical extreme,” he wrote in the majority opinion in Noble State Bank v. Haskell, upholding a state deposit insurance law. “Many laws which it would be vain to ask the court to overthrow could be shown, easily enough, to transgress a scholastic interpretation of one or another of the great guaranties in the Bill of Rights.” But even that was watered down from what he had originally written—which had criticized judges who “get pedagogical and read into Constitutions prohibitions of whatever doesn’t suit their social or economic prejudices,” he told Mrs. Gray—leaving him to complain again about the “sodden mass” he was left with.22
In the 1913–14 term he had similarly used his majority opinion overturning a contempt conviction against the labor leader Samuel Gompers to point out,
The provisions of the Constitution are not mathematical formulas having their essence in their form; they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary, but by considering their origin and the line of their growth.23
He scorned what he saw as the mealymouthed evasions and slippery logic his fellow justices resorted to to avoid committing themselves. White, although he and Holmes shared “points of keen mutual understanding,” had an opaque style and “his mode of expression rarely strikes me as felicitous or as at all doing justice to his great ability.” White was indeed the master of the slippery-slope argument: Acheson described how “he would start with a reasonably fair statement of a litigant’s position, followed by restatements progressively more disadvantageous to the side about to lose—each preceded by ‘or to put it another way,’ or ‘in other words’—until the position was palpably absurd.”24
Holmes told Acheson that he thought White’s slipperiest dialectical feat as chief justice was devising “the rule of reason” as the test of whether a company’s actions violated the Sherman Antitrust Act. “The moment I saw that in the circulated draft I knew he had us,” Holmes said. “How could you be against that without being for a rule of unreason?” It had been a way to appease the Court’s conservatives while still upholding the government’s action to break up Standard Oil, with the vague promise to limit the scope of future government antitrust actions. As Holmes remarked to Acheson—with a twinkle in his eye—“The thought did occur to me that the rule might not prove to be self-elucidating.” That kind of rhetorical evasion, Holmes thought, was nothing but “a cloud of cuttle-fish ink,” intended to obscure a judge’s unwillingness to take a clear stand.25
When Holmes thought of retiring from the Court, it was the loneliness and feeling of intellectual isolation among his brethren that were uppermost in his mind. None of the other justices even seemed to share his larger intellectual interests in the law, much less his views on particular cases. The companionship he had struck up with White never ripened into the friendship he once thought likely; though there “never was any alienation or coldness,” their intellectual worlds were just too far apart. “You can’t expect as one does with men of the great world a reciprocity of interest,” Holmes told Mrs. Green. “The things and points of view that most occupy me he cares little for . . . and his view of life and of the law naturally does not hit me.”26
The spring of 1914 had brought other melancholy feelings of loneliness and of the fading past. “I grow, again gradually, more inwardly solitary,” he wrote Clara Stevens. In April his oldest friend Pen Hallowell had died—“classmate—companion in the Regiment, first inspirer of a man’s ideals,” Holmes said of him. Hallowell’s death brought back a flood of memories, as did the publication that spring of Henry James’s autobiographical Notes of a Son and Brother, which was full of recollections of James’s father and Minny Temple during the time they all “were very intimate,” he told Stevens.27
In his own way, the visit of Gordon McCabe just a week after Hallowell’s death did too, since all he ever talked about was the Civil War. “McCabe is here, and in pretty good form—Roaring insults to Yankees, telling funny stories—one or two actually new to me—eternally dwelling on the war—and pretty deaf—but withal such a gallant highminded little man, that one must love him as well as honor,” Holmes wrote to Mrs. Gray. “You have to take the southerners on their own footing and make ironic allowances.”28
WHEN HE WAS appointed chief justice, White vowed that he was “going to stop this dissenting business.” The practice of judges’ writing separate dissenting opinions in decisions they disagreed with had a long and contentious history. By the turn of the twentieth century many legal commentators in America had come to denounce the
practice altogether, arguing that it only sowed confusion and undermined respect for the judgments of a court of last resort. “Dissenting opinions may be as pleasant to the minority judge as it is for a boy to make faces at a bigger boy across the street, whom he can’t whip,” wrote one critic, “but what good does that do?”29
It was hardly a new phenomenon, however. For a thousand years, the King’s Bench had followed the custom of each judge delivering his opinion in turn at the conclusion of a case, without prior consultation among themselves, and that model was adopted by the early multijudge tribunals in America. Thomas Jefferson, for one, viewed such “seriatim” opinions as more open and democratic, and was outraged when the United States Supreme Court under Chief Justice John Marshall began issuing “opinions of the court”—which Jefferson charged were “huddled up in conclave” only through the silent acquiescence of the more “lazy or timid” judges. Justice Henry Billings Brown, who overlapped with Holmes’s early years on the Court, expressed the view of many who defended written dissents and disagreed with the contention of justices like White that it undermined confidence in the majority’s decision. “If the authority of the Court is weakened by a dissent,” Brown said, “it is probably because it ought to be weakened.”30
Still, dissenting opinions remained the rare exception in Holmes’s time, especially when compared to present-day practice, when it is not unusual for the Court’s decisions to be accompanied by multiple dissenting and concurring statements; in recent years the Court has even on occasion issued nine separate opinions in a single case, one from each justice. The White Court decided 95 percent of its cases without any dissenting opinions, a rate that would fall to less than 50 percent a century later; the number of cases with separate concurrences increased over the same period from about 1 percent to more than 40 percent.31
Despite his reputation as a dissenter, Holmes actually did so less often than many of his fellow justices; overall, he joined the full Court’s opinion more than 96 percent of the time, and according to an analysis of available notes of deliberations in conference, he was also one of the justices most likely, in the interest of collegiality and unanimity, to go along with an opinion he had initially opposed.32
Holmes regarded that as both a matter of principle and of effective tactics. He often said it was pointless to keep dissenting in case after case only to raise the same objection; in such situations he would usually silently acquiesce once he had had his initial “whack” at the issue. As he noted in one of his dissents, “There are obvious limits of propriety to the persistent expressions of opinions that do not command the agreement of the Court.”33
And Brandeis observed that there was a fundamental difference between “ordinary” cases such as business disputes—where it actually did not matter very much which way the Court decided “so long as it is settled,” and where “there is a good deal to be said for not having dissents”—and constitutional cases, which raised important matters for the future where “nothing is ever settled.”34
Holmes was insistent that good manners as well as respect for the Court’s authority required that even in a dissent, however, it was important to avoid direct criticism of the majority’s opinion or reasoning. Holmes disliked even the traditional formulation, “Mr. Justice Holmes, dissenting” in the Court’s printed opinions, he told Laski: “We are giving our views on a question of law, not fighting with another cock.” Insisting once that Brandeis remove one offending sentence before agreeing to join a dissenting opinion he had circulated, Holmes wrote, “I think it better never to criticize the reasoning in opinions of the Court and its members. I feel very strongly about this. Of course it is OK to hit them by indirection as hard as you can.”35
McKenna, however, violated that rule constantly. His rivalry with Holmes soon began to grow into something resembling an obsession. From 1910 until his retirement in 1925, one-third of McKenna’s 117 dissents and separate concurrences were to opinions by Holmes, and their tone became increasingly personal and intemperate. He accused Holmes of weakening the Constitution, attempted ironically to quote Holmes’s previous opinions against him, and once dismissively asserted, “The question in the cases is without complexity and the means of its solution ready at hand.”36
Holmes replied with at most an oblique thrust. In a famous concurring opinion he filed to McKenna’s opinion for the Court in another case in the 1913–14 term, LeRoy Fibre v. Chicago, Milwaukee & St. Paul Railway, he took issue with the absoluteness of McKenna’s finding that a property owner who stacked flax straw near a railroad right of way could not be considered contributorily negligent when a spark from a locomotive ignited the stack. While agreeing with the outcome in the particular case, Holmes said the decision in other situations remained a matter of degree: if combustible material were placed so close to the tracks that the danger of fire could be foreseen by a reasonably prudent person, the railroad indeed might avoid liability. Then, in an undeniable dig at McKenna, he concluded:
I do not think we need trouble ourselves with the thought that my view depends upon differences of degree. The whole law does so as soon as it is civilized . . . and between the variations according to distance that I suppose to exist, and the simple universality of the rules in the Twelve Tables, or the Leges Barbarorum, there lies the culture of two thousand years.
Jealous of Holmes’s speed and facility in turning out his assigned cases, McKenna not only tried to beat him in the race to get the work done, but even attempted to emulate his epigrammatic dash, with a result that ranged from incoherent to ludicrous. Taking on Holmes in a stylistic duel was hardly a winning strategy for someone of McKenna’s distinctly limited writing ability.37
Yet the two men remained on friendly terms. Theirs was a rivalry—if an odd one on McKenna’s part—not a feud, the legal historian Alexander Bickel observed. One June, heading north on the train, Holmes ran into McKenna, and found him “very pleasant, as usual.” Declining to join a Holmes dissent, McKenna once wrote on his return to Holmes, “But I like this. It gratifies my Irish heart to see heads hit even if one of them is my own.”38
HOLMES ADMITTED THAT despite his reluctance to make a habit of it, he found it a relief to write the occasional dissent: he could say exactly what he thought without having to trim his views to “suit the squeams” of the brethren. “A dissent once in a while offers you a chance to go as you please and let out a little poison,” he explained to Baroness Moncheur.39
But the more serious purpose of a dissent, as he well knew, was the hope it might speak to the future where its views had failed to carry the present. Justice Hughes had made this point in one of the most succinct defenses of the practice:
A dissent in a court of last resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believes the court to have been betrayed. Nor is this appeal always in vain.40
That was true of no one in the history of the Court more than Holmes, whose dissents not only feature prominently among the classic opinions in the annals of the United States Supreme Court, but which, time and again, became the majority view a decade or more later. Beginning with Lochner, his appeals to the intelligence of a future day were astonishingly successful.
The 1914–15 term saw the beginning of a nearly unbroken series of Holmes dissents over the next fifteen years that would be his most lasting legacy to American constitutional law. The first came in another of his strikes against the use of the Fourteenth Amendment to invalidate state laws protecting the rights of labor. Writing for the majority in Coppage v. Kansas, Pitney held unconstitutional a Kansas law that, like the federal law struck down in Adair, outlawed yellow-dog contracts. Holmes’s dissent was but a single paragraph, but it distilled the counterargument to its essence.
In present conditions, a workman not unnaturally may believe that only by belonging to a union can he secure a contract that shall be fair to him. If t
hat belief, whether right or wrong, may be held by a reasonable man, it seems to me that it may be enforced by law in order to establish the equality of position between the parties in which liberty of contract begins. Whether in the long run it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of opinion that there is nothing in the Constitution of the United States to prevent it, and that Adair v. United States and Lochner v. New York should be overruled.
He concluded with a citation to his two dissents on the Massachusetts Supreme Judicial Court that had taken exception to injunctions against striking workers, Vegelahn v. Guntner and Plant v. Woods. “I still entertain the opinions expressed by me in Massachusetts,” he stated.
His second major dissent of that year was a plunge into previously uncharted constitutional territory, and it revealed the intensity of his feeling of outrage when the rules of the law were flouted. In the early morning hours of April 27, 1913, the bruised and bloodied body of a thirteen-year-old factory worker, Mary Phagan, was found by the night watchman in the cellar of the National Pencil Factory in Atlanta. Two days later the factory’s manager, Leo Frank, a rising member of the small Jewish community of the Southern city, was arrested and charged with her murder.
The evidence was scant, nearly all of it based on the inconsistent testimony of Frank’s chief accuser, an African American employee who was almost certainly the real killer. But the murder received sensational and lurid coverage that suggested Frank had also raped the girl, and for months Georgia newspapers treated the crime as the lead story.
Four months later Frank was sentenced to hang; his appeal to the Georgia Supreme Court affirmed his conviction; and on November 21, 1914, his counsel applied to Justice Lamar, who was designated to hear appeals to the U.S. Supreme Court from the circuit that included Georgia. Lamar denied it. The Court’s rules of procedure allowed other justices to then be applied to, and the appeal came to Holmes next.41
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