That decision had been the centerpiece of Zane’s charge of “legal heresy”: writing at the end of the First World War, Zane had accused Holmes not only having “completely misled his associates” with one of his “careless and debonair utterances” about the law, but of giving support to the “atrocious German theory” of “uncontrollable power in the state.”38
Holmes as usual was amused at academic lawyers pronouncing with great certainty what “the law” was. But he was considerably irritated by Zane’s fundamental misunderstanding of his point.39 Far from granting the state “uncontrollable power,” his insistence that the law had to be anchored in an ability to enforce it was a check on usurpation of power by the courts. And in a case that was decided in the spring of 1928, Holmes made another indelible mark in a dissenting opinion that lived on after his death as a milestone of constitutional jurisprudence.
The idea that there was a single body of common law for the courts to correctly “discover” was behind the federal courts’ long-standing practice of developing their own “general” common law, which they applied in cases where the parties were citizens of different states, a circumstance that fell under the jurisdiction of the federal courts. When the federal courts sometimes differed from a state supreme court in their view of the common law, however, the anomalous result was that a different rule might apply within a state depending on whether the case that raised the question had been brought by a resident or a nonresident.
The case where Holmes most sharply challenged this idea was a particularly egregious instance in which the federal courts’ jurisdiction had been exploited to get around a state’s reading of the common law. A Kentucky railroad company had entered into a contract with a taxi company in Bowling Green granting exclusive rights to pick up passengers at its depot. Knowing that Kentucky courts held such contracts to be invalid, but federal courts did not, the taxi company first dissolved itself and reincorporated in Tennessee, so that it could seek an order in federal court blocking a rival taxi firm from challenging the arrangement.
In his dissent in Black & White Taxicab Co. v. Black & Yellow Taxicab Co., Holmes argued that in cases that were purely a question of the common law of the states, the federal courts had no more business substituting their abstract determination of what “the law is” than did a law professor:
Books written about any branch of the common law treat it as a unit, cite cases from this Court, from the circuit courts of appeal, from the state courts, from England and the Colonies of England indiscriminately, and criticize them as right or wrong according to the writer’s notions of a single theory. It is very hard to resist the impression that there is one august corpus, to understand which clearly is the only task of any court concerned. If there were such a transcendental body of law outside of any particular state but obligatory within it unless and until changed by statute, the courts of the United States might be right in using their independent judgment as to what it was. But there is no such body of law. . . . The common law, so far as it is enforced in a state, whether called common law or not, is not the common law generally, but the law of that state existing by the authority of that state without regard to what it may have been in England or anywhere else. . . .
In my opinion, the authority, and only authority, is the state, and if that be so, the voice adopted by the state as its own should utter the last word.
This “fallacy” of regarding the common law as a transcendent body, Holmes concluded, “has resulted in an unconstitutional assumption of powers by the courts of the United States which no lapse of time or respectable array of opinion should make us hesitate to correct.” Again, Holmes was joined only by Brandeis and Stone.
But just ten years later, in the landmark case Erie v. Tompkins, the Court reversed itself. Brandeis, writing for the Court in one of its most significant decisions of the modern era on the division of powers between the federal government and the states, quoted at length Holmes’s dissent in Black & White Taxicab in declaring the federal common law void and explicitly overruling a hundred years of precedent. As with his dissents in Lochner, Frank, and Abrams, Holmes’s eloquence and clear-thinking would find their most important audience in a future Court that had disenthralled itself from the obduracy of his contemporaries.
IN OCTOBER 1928 Holmes surpassed Chief Justice Roger B. Taney as the oldest-ever sitting Supreme Court justice. He finally began to have his secretaries help with some actual legal work, preparing one-page summaries for him of each of the hundreds of applications for certiorari that flooded into the Court each year, but even then he would always leaf through the record to check his secretary’s digest for accuracy. And he still was carrying off his unwavering practice of delivering to the court printer on Tuesday the opinion he had been assigned the previous Saturday.40
Brandeis thought he literally seemed to be the youngest member of the Court. “The old man is still the keenest one of the lot,” Justice Stone agreed. Returning from conference one Saturday, Stone related to his secretary a specimen of Holmes’s still razor-sharp legal mind at work. During a long wrangle in which some of the justices were arguing what seemed to Stone an untenable position, Holmes had settled back in his chair and drifted off for his afternoon nap. But as the discussion wore on, Holmes suddenly opened his eyes, and “launched into a summary of the issues so lucid and persuasive” that it was quickly followed by a unanimous vote. “He punctured their arguments like a bubble,” Stone marveled.41
But on Sunday, April 21, 1929, Brandeis wrote to Frankfurter in dismay about his colleague. “Mrs. Holmes turned seriously ill Tuesday, I judge. O.W.H. was absent from Court that day—has attended since. But yesterday at Conference he seemed crushed, and fully twenty years older than he has been for months—actually the old man.” Fanny had fallen three times since the previous autumn; the fourth time, which happened the night before Holmes’s absence from Court, she broke her hip. No one was nearby to help, and Holmes had had to lift her into bed by himself. A doctor could not be summoned until morning; when he arrived, he put her hip in a plaster cast, but the outlook was clearly grim.42
Holmes wrote to Nina Gray a few days later, “Please do not mention it to anyone—though you may possibly hear it from others. Fanny is very ill and I cannot write at present. You know how she hates to have people talk or know of her private affairs and therefore I say no more than is necessary. I try to keep occupied with work.” Brandeis told Frankfurter on the twenty-eighth, “O.W.H. is making a grand fight. But it is a very hard one.”43
She died on the evening of April 30, and Taft, all of his basic human feeling overcoming whatever professional differences he had ever felt with Holmes, at once hurried to the house and announced he would take charge of all the arrangements. “One thing I do know how to do is run a Unitarian funeral,” he said. Holmes had quietly picked out a gravesite at Arlington Cemetery a few years before, and she was buried in the plot next to his.44
Holmes told friends he was reconciled to her death. He wrote Ethel Scott, “If my wife had lived it would have been only for pain—and therefore to die in her sleep as she did was the best that could happen—but it leaves little except a little more work for me. I have kept and been kept busy, but expect to go to Beverly Farms as usual June 5–6. I thank you for your cable which was like your faithful self.”45
His colleagues on the Court were extraordinarily sensitive to his feelings. The day after Fanny’s funeral, Brandeis, knowing that the only thing that would help him through was his work, suggested to Holmes that he write a dissenting opinion in an important First Amendment case. “He took the bait—telephoned me himself Wednesday asking me to come to see him & read me his piece—which is fine,” Brandeis told Frankfurter. Brandeis arranged with Taft to keep giving Holmes regular assignments, and not to spare him out of misplaced kindness: “I asked the C.J. to give him some opinions to write, one each week. Instead he gave O.W.H. 3, with a promise on the donee’s part not to write more than one a week. He is in fi
ne form again, working as of old,” Brandeis reported on May 11.46
The First Amendment case was an appeal of the government’s denial of citizenship to Rosika Schwimmer, a Jewish Hungarian refugee. As a pacifist, she had refused to swear the required oath that she would take up arms to defend the United States. Writing for the Court, Justice Butler dismissed the fact that she had agreed to swear allegiance to the United States and had met all of the other requirements for citizenship—and that, as a fifty-year-old woman, she was ineligible to serve in the Army anyway: “The fact that she is an uncompromising pacifist, with no sense of nationalism, but only a cosmic sense of belonging to the human family, justifies belief that she may be opposed to the use of military force as contemplated by our Constitution and laws,” Butler concluded.
Since his Abrams dissent Holmes had dissented in several other free speech cases, using each opportunity to restate his views in ever more forceful language. “The United States may give up the post office when it sees fit, but while it carries it on the use of the mails is almost as much a part of free speech as the right to use our tongues,” he asserted in a 1922 case, Milwaukee Social Democratic Publishing v. Burleson, in which he objected to what he termed the “practically despotic power” claimed by the postmaster general to bar from the mails subversive literature. In a second case that same year, he asserted the same principle protects commercial speech from prior restraint. “I cannot understand by what authority Congress undertakes to authorize anyone to determine in advance . . . that certain words shall not be uttered,” he wrote in his dissent in Leach v. Carlile, in which the majority upheld the postmaster general’s authority to issue a “fraud order” against the use of the mails by a patent-medicine business. “If the execution of this law does not abridge freedom of speech, I do not quite see what could be said to do so.” In 1925, in Gitlow v. New York, he dissented to the Court’s decision upholding the conviction for “criminal anarchy” of a communist pamphleteer, offering the memorable admonition, “Every idea is an incitement.” (“The usual notion is that you are free to say what you like if you don’t shock me,” he wrote to Einstein, explaining his dissent in the case. “Of course the value of the constitutional right is only when you do shock people.”)47
Rosika Schwimmer, in 1927
In U.S. v. Schwimmer (1929), Holmes added yet another indelible phrase to the lexicon of free speech. Holmes was joined only by Brandeis and Stone in again affirming that freedom of speech and freedom of conscience were the rights upon which all other rights depended in a free society. “If there is any principle of the Constitution that more imperatively calls for attachment than any other,” Holmes declared, “it is the principle of free thought—not free thought for those who agree with us, but freedom for the thought that we hate.”48
Holmes’s secretary John Lockwood wrote to Frankfurter, “The Schwimmer dissent is truly a magnificent document. I rejoice at such tangible evidence that the divine fire burns as brightly as ever.” Frankfurter added his congratulations: “It was like real, prewar champagne to read your Schwimmer opinion and not because Mrs. Schwimmer matters at all to me. . . . It is a glorious piece of writing. We so need the antiseptic play of your humor and wisdom.”49
Holmes, though in almost every way the very opposite of a pacifist, wrote in his dissent that Schwimmer was obviously “a woman of superior character and intelligence,” and after the case was over she wrote to Holmes, fearing it might be a breach of etiquette but saying she had to thank him for his “magnificent expression of true Americanism,” which “helped me to take the blow of the refusal without loss of faith in the inherent idealism of your nation.” Holmes replied with a kind word of reassurance and thereafter they exchanged a few further cordial messages. Possibly because of Holmes’s dissent, Schwimmer was allowed to remain in the United States for the rest of her life as a resident alien.50
The case received enormous attention, with the New Republic reprinting Holmes’s dissent in its entirety. E. B. White wrote in the New Yorker, “One profession that is more noble today than that of soldier is Dissenting Justice of the Supreme Court.”51
DURING FANNY’S ILLNESS Brandeis had written to Frankfurter, “When the time comes, Lockwood should be told to insist on staying with O.W.H. substantially all summer. He is needed as no Secretary ever has been, & is evidently much beloved by O.W.H.” Lockwood readily agreed, but found he had to “beg for permission” from Holmes before he would accede to the arrangement.52
Lockwood ended up joining him at Beverly Farms from mid-July to the end of that summer of 1929. He would later recall the deep admiration he felt in seeing how Holmes courageously adjusted to his new circumstances: “Here, in the most deeply personal event to occur in his life since the Civil War, I guess, one could see all of his experience coordinated and distilled by him and relied upon.”53
At Beverly Farms, Holmes continued his old routine. He invited several “discreet dames” to lunch—Mrs. Codman, Mrs. Curtis, Mrs. Gray—telling “one who professed hesitation on solitude with a gent” that at his age “she might as well hesitate about visiting Bunker Hill Monument.” When Alger Hiss began as his new secretary in the fall, he managed to convince Holmes to let him take over Fanny’s old role of reading aloud to him, and they generally spent an hour in the late afternoon each day with a book. Holmes still was diligently tackling the “Day of Judgment” books he said he needed to have read to get a good mark on his “final examination,” but on the recommendations of Laski and others he had discovered Wodehouse and murder mysteries and other light reading, and would usually greet Hiss on his return from the Court, “What should it be this time? Shall we improve our minds, or shall we have a little murder?”54
His subsequent secretaries all continued the practice, and between their suggestions and the New Republic’s book reviews Holmes tried a few modern writers, who for the most part left him unimpressed with their daring breaking of taboos. He summarized to Frankfurter a novel by the English playwright and author Charles Morgan, “An able writer but the metaphysics of screwing your neighbor’s wife don’t interest me”; and once interrupted Mark Howe in the midst of another contemporary work that had been getting much attention—Three Cities by Sholem Asch—to ask, in rather more direct language, “Am I to understand that the young man fucked his mother-in-law?” As he drily observed to Laski, “The new generation has discovered the act by which it came into being and is happy in the discovery.”55
With Alger Hiss, in the summer of 1930 at Beverly Farms
Toward the end of 1929, Taft began noticeably deteriorating mentally and physically. The good humor that had kept the conferences genial and efficient dissolved into dark forebodings. “I must stay on the court in order to prevent the Bolsheviki from getting control,” he wrote to his brother in mid-November. By the New Year he was too ill to come to work.56
In his absence, Holmes, as the senior justice, took over as acting chief for the first two months of 1930. The duties seemed to revive him almost in inverse proportion to Taft’s decline. “He is presiding with great firmness, alertness, and joy,” Brandeis happily reported to Frankfurter. “A marked rejuvenescence has been effected; and he is definitely without worry in those unaccustomed duties incident to his new office. It is several years since we have had so good a C.J.” Stone said he thought Holmes had run the best conference he had attended since joining the Court, and although Brandeis begged Holmes not to overburden himself by also writing opinions, he assigned two to himself right away, and the next month took on one of the gnarly patent cases he hated. “I felt bound to take it,” he told Mrs. Gray, since no one else wanted to write it, though “went home scared to death.”57
With the Beverly Farms crossing guard, whom Holmes always stopped to talk with on his daily walk
But Hiss did note that by the end of February, Holmes seemed worn down. He had seemed particularly “haunted” at the sight of Taft’s vacant expression in an AP news photograph and by the rapidity of the chie
f justice’s ensuing mental collapse. On top of everything, there was a deluge of “fan mail” and greetings for his upcoming birthday to be answered that was taking Holmes two hours every morning. Hiss finally persuaded the justice to allow him to write the replies to three categories of well-wishers: those who Holmes had never heard of; those he knew slightly but only in an official capacity; and those he knew so well he was sure they would not want to trouble him with a personal reply.58
On February 3, 1930, Taft sent in his resignation; a month later he was dead. To replace him, President Herbert Hoover appointed Holmes’s old friend and colleague Hughes. “We all loved Taft and grieved at his bodily collapse,” Holmes told Nina Gray, “but Hughes is an old and valued friend of mine and I surmise and hope a little nearer to my way of thinking than his predecessor.”59
That spring Holmes wrote what would be his final dissenting opinion, Baldwin v. Missouri (1930), and it fittingly summarized his entire case against the Court’s misuse of the Due Process Clause to invalidate economic and social legislation, in this instance a state inheritance tax applied to bonds held by an out-of-state owner:
I have not yet adequately expressed the more than anxiety that I feel at the ever increasing scope given to the Fourteenth Amendment in cutting down what I believe to be the constitutional rights of the states. As the decisions now stand, I see hardly any limit but the sky to the invalidating of those rights if they happen to strike a majority of this Court as for any reason undesirable. I cannot believe that the Amendment was intended to give us carte blanche to embody our economic or moral beliefs in its prohibitions. . . . Of course, the words “due process of law,” if taken in their literal meaning, have no application to this case, and, while it is too late to deny that they have been given a much more extended and artificial signification, still we ought to remember the great caution shown by the Constitution in limiting the power of the states, and should be slow to construe the clause in the Fourteenth Amendment as committing to the Court, with no guide but the Court’s own discretion, the validity of whatever laws the states may pass.
Oliver Wendell Holmes Page 46