But Holmes did make good on his own determination to destroy a good many “illuminating documents” in his possession. Alger Hiss recalled the solemn ritual of burning in the fireplace of the study, under Holmes’s watchful eye, the manuscripts and proofs of his completed opinions. Hiss thought that this was not from any “narcissistic wish” to shape an image of himself to history, but rather reflected his deep sense of privacy—“he eschewed sentimentality and vulgarity”—and because he saw himself most of all as a writer, who had worked hard to hone his craft, and “what he wanted to say was in his printed work.”13
But Holmes did unbend a few years before his death, naming Frankfurter to write a book about him after his death and giving his executor, John G. Palfrey, full authority to do whatever he thought best with his papers. Frankfurter replied, “I’m bowed with zest and humility.” But Holmes also suggested that while “Felix seems to me the man for the law part,” if there were another part “dealing with the old Yankee” that might best be written “by some other Yankee.”14
After his own appointment to the Supreme Court in 1939, Frankfurter abandoned the idea of writing the entire biography himself and enlisted Mark DeWolfe Howe to take over the project. Howe was not only Holmes’s former secretary but so thoroughly a part of Brahmin Boston that his father, Mark Anthony DeWolfe Howe, had written a biography of Holmes’s father.
It was an impossible situation. Frankfurter saw it as his mission to safeguard Holmes’s memory, and he bombarded Howe with suggestions, his own reminiscences, and constant inquiries about Howe’s progress. Holmes’s papers meanwhile had been sent to Harvard and set aside for Howe’s exclusive use, with no access permitted to other writers or scholars. But Howe’s heart was never in writing the book. He organized and transcribed thousands of pages of letters and documents with a scholarly attention to detail that was equal parts dedication and procrastination. Telling Frankfurter that it would be better first to publish some of Holmes’s own words, he spent the better part of a decade editing for the press the Holmes-Pollock letters, Holmes’s Civil War diaries, and the Holmes-Laski letters, continually putting off a start on the actual biography.15
In January 1954 Charlie Curtis wrote Learned Hand,
The only thing I am quite sure of about Holmes is that Mark Howe holes up this week, on the 5th floor of the Boston Athenaeum, to write his damn biography, which Mark ought to have lived down years ago. I had supper with him Sunday & I think he dreads it. He should. Perhaps he kept putting it off hoping Felix would die, but whether, if so, he didn’t want to be watched or whether then he wouldn’t have to write it, I don’t know.16
At the time of his death in 1967 at age sixty, Howe had completed only two slim volumes, covering Holmes’s life up to 1882. Frankfurter had died in 1965, and after another abortive effort to have the “official” biography completed, the Law School finally opened Holmes’s papers to researchers in 1985. In the end, Frankfurter’s effort to so zealously protect his mentor’s reputation did much more harm than good, delaying by more than half a century the publication of the first comprehensive biographies of Justice Holmes.
Frankfurter’s efforts to portray Holmes as a liberal icon was a false note from the start that also complicated his reputation. It was certainly the case that progressives found much to admire in Holmes, both personally and for his unwavering moral courage in challenging the prevailing legal doctrines that had stifled social reform. But sharper commentators smelled a rat in the assiduous championing of Holmes as a liberal, and the disparity between the image retailed by Frankfurter and the New Republic, and the reality that Holmes had certainly never disguised but which was swept aside in the popular imagination, became an easy target for those out to chip away at his reputation later on.
H. L. Mencken, in a remarkably perceptive 1930 article, pointed out that many of Holmes’s decisions were difficult to reconcile with “any plausible conception” of liberalism:
My suspicion is that the hopeful Liberals, frantically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holmes’s opinions without examining the rest. . . . Finding him, now and then, defending eloquently a new and uplifting law which his colleagues proposed to strike off the books, they concluded that he was a sworn advocate of the rights of man. But all the while, if I do not misread his plain words, he was actually no more than an advocate of the rights of law-makers. There, indeed, is the clue to his whole jurisprudence.
“He is a jurist of great industry, immense learning and the highest integrity,” concluded Mencken, “but . . . to call him a Liberal is to make the word meaningless.”17
However disenchanted latter-day liberals were to find that Holmes was not in fact one of them at heart, his unwavering fight for the principles of respect for the rule of law, judicial restraint, and the interests of the community did infinitely more to secure their vision of a more humane, just, and decent society than any more-partisan striving could have done. The very power of his dissenting opinions that argued for upholding legislation regulating workers’ wages and hours, banning child labor, restricting labor injunctions and yellow-dog contracts, and protecting consumers was that they grew not from a political concern with the outcome, but from his deep study of the law and its purpose in society. Nor did he write in vain: every one of those dissenting opinions was subsequently embraced by Court’s majority, in many instances just a few years after his retirement from the Court.
In 1937, overruling the majority opinion in the 1923 minimum wage case Adkins v. Children’s Hospital, in which Holmes’s dissent had so forcefully refuted the notion of “liberty of contract,” the Court specifically cited his dissent as having set forth the better case.18 In 1938, the same year it issued its decision in Erie upholding Holmes’s position rejecting the federal courts’ usurpation of the common law of the states, the Court laid to rest the half-century abuse of the Due Process Clause by the Court’s conservative bloc, establishing the now-definitive rule that “regulatory legislation affecting ordinary commercial transactions is not to be pronounced unconstitutional” unless it is totally without “a rational basis”—a polite rephrasing of Holmes’s “puke test.”19
Again in 1937 and 1938, the Court effectively reversed Truax v. Corrigan, holding state and federal laws barring labor injunctions to be constitutional; and in a series of cases over the next few years that upheld the New Deal’s 1935 National Labor Relations Act, which barred employers from discriminating against union workers, the Court likewise declared Adair and Coppage to be dead letters.20
And in 1941, citing Holmes’s “powerful and now classic dissent” in the 1918 child labor case Hammer v. Dagenhart, the Court unambiguously affirmed Congress’s power under the Commerce Clause to regulate the national economy.21
In at least a dozen less high-profile cases, Holmes’s dissents proved equally prophetic, with the Court later reversing itself and adopting Holmes’s views on questions of taxation, presidential appointments, and the powers of the states.22
Holmes’s palpable outrage over the affront to the rule of law in Southern mob-dominated trials that stirred him in Frank and Moore to demand that federal courts assert jurisdiction was not in vain, either. In 1932, in the famous case of the Scottsboro Boys, the Supreme Court for the first time reversed a state death-penalty conviction and extended the protections of the Fourteenth Amendment for a fair trial to include the right to counsel and to a jury free from racial bias.23
Holmes certainly saw nothing particularly liberal, much less activist, in his scornful repudiation of the originalist notion that the Constitution had set in stone forever the worldview and assumptions of its eighteenth-century authors. Holmes is often associated with the idea of the “living Constitution”; but that was not really how he saw it at all. It was not the Constitution that was the living organism, in his view: it was the nation that that Constitution had called into being that continued to grow and develop. The Founders h
ad intentionally created a document that was a framework, not a straitjacket, that would allow the nation to meet new challenges which the men wise enough to draft its inspiring words were wise enough to know they could not possibly foresee. Its broad precepts were the very antithesis of the absolutism that those whom Morris Cohen characterized as having a “fetishism of the Constitution” tried to read into it, hoping to give their political views the imprimatur of absolute right.24
That Holmes moored freedom of speech not to an individual human right of self-expression but to the greater interests of society was precisely the reason his 1919 dissent in Abrams, with its soaring invocation of the free trade in ideas, survived even the tempests of cold war politics to be cited more than forty times by the Supreme Court in decisions upholding free speech. A full century later, his Abrams dissent continues to be invoked with admiration by conservative and liberal jurists alike.25
Several of his other free speech dissents proved equally powerful goads to the conscience of later Courts, and equally enduring in their influence. In 1946, citing his Schwimmer dissent, the Court overturned its previous ruling, and found in favor of a Seventh Day Adventist who had been denied citizenship for his pacifist beliefs. And the same year, citing Holmes’s 1921 dissent in Milwaukee Social Democratic Publishing, the Court held that use of the mails is a right, not a privilege, establishing the principle that when the government provides a forum for speech the First Amendment bars any attempt to regulate its content.26
Lawyers, scholars, and judges have devoted hundreds of thousands of pages of arguments to disputing the technicalities and legal doctrines of Holmes’s free speech jurisprudence, but as the legal scholar Ronald K. L. Collins noted, this is “lawyers’ stuff” that misses the monumental consequentiality of what Holmes did. In the shadow of war, in the face of the Red Scare and the vehement disapproval of much of the legal profession and indeed much of the country, Holmes staked his reputation—Boston Brahmin, Civil War hero, preeminent legal scholar, distinguished judge—to defend freedom of speech for communists, pacifists, and foreign-born anarchists. “Free speech in America,” Collins concluded, “was never the same after 1919.”27
Even more important, he built his argument for “freedom for the thought we hate” not only on a legal foundation, but on a philosophical one, which tied his own sturdy skepticism to the democratic experiment itself. As Collins observed, Holmes offered a bargain that still scares zealots and moralists, but which embodies what it means to be a “civilized man,” as Holmes would have put it, as well as a citizen in a free land: he proposed giving up the comforts of certainty for the risks of freedom, trading the dogmas of faith for the wisdom to question even our own beliefs, embracing the courage to have more trust in the democratic compromise of ideas than in the triumph of an ideological cause.
Speaking to the fiftieth reunion of his Harvard Class of 1861, Holmes had said, “Life is painting a picture, not doing a sum.” More than any other single thing, it was this ability—to see that none of us has all the answers; that perfection will never be found in the law as it is not to be found in life; but that its pursuit is still worth the effort, if only for the sake of giving our lives meaning—which people found so striking about Holmes, as a human being and as a thinker. “His own insistence that we view critically what we love and reverence, and the example of his unfailing courage,” Morris Cohen wrote a month after his death, made Holmes both a “titanic” and a “lone” figure.28
In another speech at Harvard, which Holmes delivered on “The Profession of the Law” in 1886, he had spoken of the loneliness of original work, the “black gulf of solitude more isolating than that which surrounds the dying man,” but whose reward is “the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought.”29 He reaped that reward far more than he ever dared believe, which was the final testimony to the greatness of his skeptical humility.
ABBREVIATIONS
AJH
Amelia Jackson Holmes (mother of OWH)
ASG
Alice Stopford Green
BDA
Boston Daily Advertiser
B-F
Urofsky, ed., “Brandeis-Frankfurter Conversations”
CC
Clare, Lady Castletown
CM
Charlotte, Baroness Moncheur
CSRS
Clara Sherwood Rollins Stevens
CW
Holmes, Collected Works
EC
Ellen Curtis
EJHC
Edward Jackson Holmes, Collection of OWH Materials
ES
Ethel Scott
FF
Felix Frankfurter
FL
Scott, ed., Fallen Leaves
FP
Frederick Pollock
HBHS
Urofsky and Levy, eds., Half Brother Half Son
H-E
Peabody, ed., Holmes-Einstein Letters
H-F
Mennel and Compston, eds., Holmes & Frankfurter Correspondence
HJ
Henry James
HJL
Harold J. Laski
H-L
Howe, ed., Holmes-Laski Letters
HLA
Henry L. Abbott
H-P
Howe, ed., Holmes-Pollock Letters
H-S
Burton, ed., Holmes-Sheehan Correspondence
JA
Josiah Abbott
JBT
James B. Thayer
JRG
Bickel and Schmidt, Judiciary and Responsible Government
JSMP
John S. Monagan, Papers
LDB
Louis D. Brandeis
LE
Lewis Einstein
LH
Learned Hand
LLH
Morse, Life and Letters of Oliver Wendell Holmes
LJPP
Lewis J. Paper, Papers
MDH
Mark DeWolfe Howe
MDHM
Howe, Research Materials on OWH
NG
Anna “Nina” Gray
NYT
New York Times
OH
Oral History
OWH
Oliver Wendell Holmes Jr.
OWHA
Holmes, Papers, Addenda
OWHC
Holmes, Letters to Lady Castletown
OWHP
Holmes, Papers, Palfrey Collection
SJC
Supreme Judicial Court, Massachusetts
TCWJ
Perry, ed., Thought and Character of William James
TWF
Howe, ed., Touched With Fire
WBLM
W. Barton Leach, Miscellanies
WHT
William Howard Taft
WJ
William James
WP
Washington Post
NOTES
The principal archive of Holmes’s papers is the group of five collections of Holmes material at the Harvard Law School, all of which have been digitized and are fully accessible on the Web.
Where published editions or typescripts of Holmes’s letters have been made, I have cited these more convenient sources rather than the original autograph letters. Mark Howe collected, copied, and prepared typescripts of much of Holmes’s correspondence and diaries, and these are found mainly in the Mark DeWolfe Howe Research Materials Relating to Life of Oliver Wendell Holmes Jr. (MDHM) under the name of the individual correspondent. Howe also filed carbon copies of these transcribed letters in a single master chronological file, together with an index; these are in the subseries “Correspondence by OWH, 1864–1934,” MDHM, 19-2 to 21-8. (Howe’s transcriptions of Holmes’s numerous letters to Baroness Moncheur are found only in this general chronological file.) There are occasional mistakes in the dates and contents of the transcriptions, and in these ins
tances I have relied on the original versions, which are mostly in the John G. Palfrey Collection of Papers on Oliver Wendell Holmes Jr. (OWHP) and the Oliver Wendell Holmes Jr. Addenda (OWHA), and can be readily located via the online catalogs of these collections. The two other, smaller collections of Holmes papers at Harvard are the Edward J. Holmes Collection of Oliver Wendell Holmes Jr. Materials (EJHC) and the Letters Written by Oliver Wendell Holmes to Lady Clare Castletown (OWHC). Transcriptions of an additional fifty-four letters from Holmes to Lady Castletown are in a separate group of letters in MDHM. Howe’s diary of his year with Holmes, which has also been digitized, is in the Mark DeWolfe Howe Papers at Harvard Law School.
A few other important unpublished Holmes letters and materials that Mark Howe did not collect or copy are scattered among a number of archives: the Doneraile Papers, National Library of Ireland (a dozen letters from Holmes to Lady Castletown that are not in the Harvard collections); the papers of Justices Felix Frankfurter and Willis Van Devanter at the Library of Congress and John Hessin Clarke at Case Western Reserve University; and the W. Gordon McCabe papers at the University of Virginia. The papers of John S. Monagan, W. Barton Leach, Learned Hand, and Lewis J. Paper at Harvard Law School contain a number of important interviews with and reminiscences by Holmes’s secretaries, friends, family, and associates; Columbia University holds oral history interviews of Holmes’s secretaries Chauncey Belknap and Harvey Bundy.
Items in manuscript collections are cited in the Notes below by box and folder number: MDHM, 15-2, refers to Howe, Research Materials, box 15, folder 2. Harvard’s comprehensive online catalog to archival holdings introduced in 2018 (HOLLIS for Archival Discovery) retains these box and folder numbers in the “Item Identifier” associated with each item-level holding in a collection.
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