It was now Holmes and Brandeis who walked home together from the Court each day; sometimes they would each insist on walking the other to his door, and crossed and recrossed the street until one gave way. Brandeis called on Holmes almost every day when the Court was not in session, and in Holmes’s later years, his housekeeper remembered, his eyes would light up and he would exclaim, “My dear friend” whenever Brandeis came to visit.68
Brandeis’s Jewishness was never an issue to Holmes, who not only was almost totally free of conventional prejudices but had been finding that “quite without my being aware” of it, “most of the men I have taken a shine to within the last few years have been Jews,” as he wrote Clare Castletown in the summer of 1916. “They are all men of extraordinary gifts and a kind of high goodness.”69
More than one of Holmes’s old Boston acquaintances, and even his wife, Fanny, were not so tolerant. There was an old story that Holmes’s Dutch ancestors, the Wendells, were originally Jews, and when Fanny would make some disapproving observation about his Jewish friends, Holmes would counter that he’d “rather have the brilliance of the Jews” through those supposed forebears of his than the “god-damned Anglo-Saxon wing.”70
Some who tried to explain the Brandeis-Holmes friendship suggested that they had both felt themselves to be “outsiders” in Boston society. But there was much more to it than that. If not by blood than by deeply rooted values, there were more than a few areas of intellectual and moral kinship between the Brahmins and the Jews, which Holmes’s lack of bigotry allowed him to see: a love of learning, a sense of social duty, and a reverence for the life of ideas, all of which Holmes and Brandeis fully shared. When Mrs. Gray made an arch comment about hoping he would “stay thoroughly Anglo-Saxon,” Holmes retorted, “I take the innuendo to be that I am under the influence of the Heb’s. I am comfortably confident that I am under no influence except that of thoughts and insights. Sometimes my brother B. seems to me to see deeper than some of the others—and we often agree.”71
The vicious anti-Semitism of one of Wilson’s other new appointees to the Court, James R. McReynolds, troubled Holmes much more than it did Brandeis. As Wilson’s attorney general McReynolds had prosecuted several antitrust actions, but upon joining the Court in 1914 he had revealed himself not the progressive Wilson had supposed but an archreactionary, as well as a man of towering bigotries. Taft called McReynolds “fuller of prejudice than any man I have known.”72 The few times a woman or African American lawyer appeared before the Court in the 1920s and 1930s, the Kentucky-born McReynolds ostentatiously rotated his chair and sat with his back to the courtroom.73
Holmes and Brandeis
There was a widely repeated, though inaccurate, tale that in 1924 McReynolds had refused to pose for the traditional Court photograph because it would have required him to sit next to Brandeis. But other stories of his anti-Semitism were completely true. McReynolds would immediately get up and leave the room whenever Brandeis spoke during conferences. When the Court was invited to Philadelphia to attend the dedication of the State House where the United States Supreme Court first sat, McReynolds sent a note to the chief justice declining to accompany them: “As you know, I am not always to be found when there is a Hebrew abroad. Therefore my ‘inability’ to attend must not surprise you!”74 He once wrote on a return to Holmes, in a case in which Holmes and Brandeis were dissenting, “Did you ever think that for four thousand years the Lord tried to make something out of Hebrews, then gave it up as impossible and turned them out to prey on mankind in general—like fleas on the dog for example.”75
Justice McReynolds
McReynolds was also the most personally unpleasant man ever to sit on the Court, Taft later said, “selfish beyond everything,” taking “delight in making others uncomfortable,” unbelievably rude and domineering. Brandeis ignored his crude hostility, viewing him more as a curious natural phenomenon—a Naturmensch, he called him, a primitive man, a child of nature: “He has very tender affections & correspondingly hates.”76
But Holmes was appalled by McReynolds’s behavior and did what he could to ease the strains. Frankfurter came in for the McReynolds treatment when he appeared before the Court in January 1917 to defend an Oregon law limiting the workday for all workers to ten hours. McReynolds kept hectoring him, interrupting his arguments, finally demanding in a sneering tone, “Ten hours! Ten hours! Ten! Why not four?”
Frankfurter walked over to stand before McReynolds at the end of the bench. “Your honor,” he said, “if by chance I may make such a hypothesis, if your physician should find that you’re eating too much meat, it isn’t necessary for him to urge you to become a vegetarian.”
Child mill workers in North Carolina
“Good for you! Good for you!” Holmes boomed.77
Holmes did once wryly remark of Brandeis that for all of their real friendship and intellectual companionship, “I am not sure that he wouldn’t burn me at a slow fire if it were in the interest of some very possibly disinterested aim.”78 But their alliance on the Court was cemented in several powerful dissenting opinions that directly challenged the old guard and reflected their shared philosophy of the law as an evolving response to the needs of society.
Near the end of the 1917–18 term, Brandeis joined Holmes’s dissent in Hammer v. Dagenhart, in which the Court struck down an act of Congress banning from interstate commerce the products of cotton mills employing child labor. Noting that the Court had upheld laws prohibiting the interstate movement of lottery tickets and liquor, Holmes asked why the Court thought Congress’s exercise of the Commerce Clause was “permissible as against strong drink but not as against the product of ruined lives.”
A week later Brandeis joined a second Holmes dissent, Toledo Newspaper v. U.S., the case of a newspaper that a federal district judge had held in contempt and slapped with a substantial fine for publishing an unflattering political cartoon about him. “I confess that I cannot find in all this or in the evidence in the case anything that would have affected a mind of reasonable fortitude,” Holmes archly commented in his written opinion, and suggested that contempt under the relevant statute was limited to actions that directly impeded the enforcement of a court order or disrupted courtroom proceedings.
“My last two cases in Court were marked by two dissents that I imagine the majority thought ill timed and regrettable as I thought the decisions,” Holmes wrote to Pollock.79
THE WAR IN Europe cast a solemn mood over Washington that spring. The war had brought back to him all of his old memories and feelings about the transformative experience of battle. To his English friend Lady Askwith, whose son lost an arm in the early fighting, he wrote,
I truly believe that young men who live through a war in which they have taken part will find themselves different thenceforth—I feel it—I see it in the eyes of the few surviving men who served in my Regiment. So, although I would have averted the war if I could have, I believe that all the suffering and waste are not without their reward. I hope with all my heart that your boys may win the reward and at not too great a cost.80
“I have lived through so many wars, including that which overshadowed the beginning of my adult life that I do not feel that even this one is the end of all things,” he told Baroness Moncheur. “But my heart aches underneath.”81
From the start of the war, Holmes’s heart was entirely with England, and he had been chagrined to receive from a German law professor he knew a long letter praising his speech “The Soldier’s Faith” as if it supported the German cause. Worse, he learned from friends in England, the professor, Otto von Gierke, had made the letter public even before Holmes received it and excerpts had been published in newspapers.82
It was not the first time that speech had caused him grief: he repeatedly had complained to friends that it “was not intended, as it stupidly was taken by many, to advise young men to wade in gore,” but on the contrary to express “the eternal idealism of man”—even if his paradoxical praise of the
man who dies in a cause in which he does not believe almost invited such a misunderstanding.83
The sentimentality being expressed by both supporters and opponents of the war, however, rekindled all his smoldering tough-mindedness. His secretary the year America entered the war, Shelton Hale, was a socialist and pacifist, and announced to Holmes that war was irrational. “I find myself very fond of him,” Holmes remarked, but Hale’s observation brought “blood in my eye,” and he had riposted that “war is the ultimate rationality”: when two nations disagreed, the only logical recourse was to try to impose their will through force.84
Holmes said he felt like the English officer he read of who said “he didn’t hate the Germans, the people at home did that, he only wanted to kill them. I think that is the usual feeling of men at the front in any war.” He related to Einstein his reply to “a nervous dame” who had reproached him for his “detached attitude” toward the war: “I said that I saw no good in unproductive emotion that merely detracts from one’s working force; that I hoped I would go out and be shot in an hour for the cause, but that I wouldn’t lie awake for it if I could help it, and I could.” Or, as he had earlier remarked to Einstein, “If men die so shall I. It is not a sufficient reason for not using one’s time.”85
But he confessed that during one night in that spring of 1918 when “the news seemed black from the front,” he had lain awake with dyspepsia, despite his boast. A few days later he drove out to the park “and saw the bloodroot with its dazzling white stars . . . but the ache was under it all, and the spring seems only to embody the inexorable.”86
As he and Fanny prepared to head north at the end of the term, he had his usual feeling “as if the bottom had dropped out when work stops.” But he expected that after his usual bout of “train fever,” and a fortnight’s “emptiness and collapse,” he would be ready to alternate between a book and slumber at his summer retreat.87
CHAPTER 14
Free Speech
Holmes and Fanny had decided to spend a few nights in New York on their way up, and on the morning of Wednesday, June 19, 1918, they boarded the train from New York to Boston. By chance, on the same train, heading to his summer home in Cornish, New Hampshire, was Judge Learned Hand of the federal district court in New York. Hand not only knew and respected Holmes, thirty-one years his senior, but looked upon him as “the epitome of what a judge should be,” “the example of all that I most cherish.” As a member of the editorial board of the New Republic, Hand had written a number of the magazine’s unsigned editorials praising Holmes’s dissenting opinions.1 At some point during the train ride Holmes ran into his fellow jurist, and sat down for a talk that would hold a place in the annals of the right of freedom of speech in America.
Hand’s intellectual and philosophical touchstones were strikingly akin to Holmes’s. From a strict Calvinist upbringing in Albany, New York, he had gone to Harvard where he majored in philosophy, graduated summa cum laude, and under the teaching of William James and George Santayana emerged a confirmed skeptic.2 He had then gone on to Harvard Law School and a distinguished career as lawyer and judge. Although he would never sit on the U.S. Supreme Court—owing mainly to having incurred Taft’s enduring enmity by supporting Roosevelt’s Bull Moose campaign of 1912—Hand would become one of the country’s most influential judges, with a name as famous to students of the law today as Marshall, Holmes, and Brandeis.
But unlike Holmes, he was beset with anxieties and self-doubts, and never could redirect the Calvinist guilt instilled in him by his mother into Holmes’s exuberant joie de vivre. His unusual first name added to his self-consciousness: Learned was his mother’s family name, and though he worried it made him sound like a “sissy,” he thought it was better than his full given name, which was Billings Learned Hand; it was certainly better than his family’s name for him, which was “Bunny.” His friends called him “B.”3
Learned Hand
The “constant anxiety complex” he carried with him from his upbringing made it impossible ever to have a “happy, contented disposition,” he acknowledged, and his self-deriding inclination to identify himself with the cartoon character Caspar Milquetoast was deepened by the unhappiness in his marriage. His wife, a Bryn Mawr graduate whom he had met when he was twenty-nine having had little experience with women previously, was a determinedly independent woman who had announced from the start that she had no intention “to be the door-mat of a man of genius.” She had taken to spending longer and longer intervals at Cornish in the company of another man, a professor of French at nearby Dartmouth College, for which Hand only blamed himself even as he begged her to stay with him at least a bit more often. “I don’t know if I can take this,” he admitted to a friend when she began talking about buying a permanent home there, but he was heading to see her for a brief vacation together that day in June when he encountered Holmes on the train.4
Despite his inner torments, Hand had a mastery of his work that was very much like Holmes’s: an exhaustive understanding of the law and precedents, an ability to penetrate to the core of the matter at hand, and a skill at expressing his reasoning in luminously clear prose—along with a fervent conviction that skepticism dictated judicial restraint and a willingness to question one’s own prejudices. And what was on his mind that day was a case in which he had taken a bold, deeply reasoned, and distinctly unpopular stand defending the rights of freedom of speech against government censorship.
The case arose under the 1917 Espionage Act, passed by Congress shortly after America’s entry into the First World War. Among its other provisions, the act made it a crime punishable by imprisonment to “wilfully obstruct the recruiting or enlistment service of the United States.” The act also gave the postmaster general the authority to bar the mailings of publications violating its provisions.
An article in The Masses, a “monthly revolutionary journal” with a circulation of twenty thousand, immediately fell afoul of the postal authorities by praising conscientious objectors and antiwar agitators who had been convicted of obstructing the draft. When the publishers were informed that their next issue would be excluded from the mails, they promptly went to court seeking an injunction to stop the order from being carried out. On July 24, 1917, just six weeks after enactment of the law, Hand granted the injunction, in a broad decision that sharply limited the government’s power to ban criticisms of its policies.
The traditional common law of criminal and seditious libel held that speech that has a “bad tendency”—that is likely to lead to a breach of the peace or defiance of government authority—can be punished, and that was the theory on which Postmaster General Albert Burleson had applied the Espionage Act to publications like The Masses. But Hand countered that suppressing hostile criticism was “so contrary to the use and wont of our people” that no such subjective assumptions about tendencies could be read into the act. He proposed a strict and objective legal standard to assess whether speech could be punished: a speaker, he said, should not be responsible for others who were moved to illegal action by his words unless the words in and of themselves directly advocated forcible resistance to the law.
Although Hand did not base his decision on the First Amendment, it was deeply rooted in his thinking about the importance of free speech in a democracy and the dangers of allowing the government to ban speech based on what it might possibly lead to. “To assimilate agitation, legitimate as such, with direct incitement to violent resistance, is to disregard the tolerance of all methods of political agitation which in normal times is a safeguard of free government,” he wrote in his decision. “The distinction is not a scholastic subterfuge, but a hard-bought acquisition in the fight for freedom.”5
But few others on the federal bench or the legal profession shared his views. As he later noted with disappointment to Zechariah Chafee Jr., a young Harvard Law professor who was one of his few stalwart allies on free speech, his decision “seemed to meet with practically no professional approval whatever.” H
and’s order was overturned by the Circuit Court of Appeals three months later, his direct-incitement test decisively rejected. Permanently barred from the mails, The Masses never published again.6
Hand’s cousin, a federal judge who served with him on the Southern District of New York, needled him that he was just displaying his “natural perversity.” But Hand wrote back, “I never was better satisfied with any piece of work I did in my life.” The importance of tolerance for opposing views, not just as a bedrock foundation of democracy but as a reflection of fundamental skepticism about certainty, continued to gnaw at him; and when he had what he described to Holmes as “my good fortune in meeting you on the train,” he tried to lay his case out to his eminent senior.7
He did not get far. They talked most of the way to Boston, but although Hand’s argument was very much in tune with Holmes’s own oft-repeated rejection of the claim of anyone to possess absolute truth, Holmes had little enthusiasm for the idea that human beings possessed any rights simply by virtue of being human. Holmes always liked to provoke friends who he thought were being sentimentally idealistic by saying, “all society rests on the deaths of men,” and frequently asserted that a “right” was nothing more than “those things a given crowd will fight for—which vary from religion to the price of a glass of beer.”8 He had flummoxed Hand into silence by facetiously rebuffing his talk of free speech as a right by countering that Hand wanted to strike at his “sacred right to kill the other fellow” if he disagreed with him.
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