25.Pringle, Taft, 2:960; OWH to FP, May 21, 1922, H-P, 2:96; OWH to CM, June 2, 1922, MDHM, 20-14; OWH to ES, March 7, 1922, MDHM, 17-29.
26.OWH to CM, June 2, 1922, MDHM, 20-14 (showing appreciation); Post, “Dissent in Taft Court,” 1311–12 (modifying opinions); Mason, Taft, 205 (past differences with Brandeis); April 17, 1922, B-F, 302–3 (“cultivated man”).
27.Mason, Taft, 195, 216.
28.WHT to Horace Taft, April 17, 1922, MDHM, 17-44.
29.OWH to CM, May 2, 1921, MDHM, 20-12; OWH to FF, April 20, 1921, H-F, 110.
30.WHT to Horace Taft, May 7, 1922, quoted in Pringle, Taft, 2:967.
31.WHT to Horace Taft, June 8, 1928, quoted in Mason, Taft, 259; Urofsky, Brandeis, 581; WHT to C. P. Taft II, March 7, 1926, quoted in Pringle, Taft, 2:969.
32.WHT to LH, March 3, 1923, quoted in Pringle, Taft, 2:969.
33.Biddle, Mr. Justice Holmes, 145–47; “Justice Holmes at Ninety,” NYT, March 8, 1931.
34.WHT to LH, March 3, 1923, Pringle, Taft, 2:969.
35.WHT to Horace Taft, April 17, 1922, MDHM, 17-44; OWH to NG, December 21, 1921, MDHM, 4-5, and October 12, 1921, MDHM, 4-4; OWH to ES, March 7, 1922, MDHM, 17-29.
36.OWH to CM, June 2, 1922, MDHM, 20-14; OWH to EC, June 23, 1922, MDHM, 14-22 (misdated June 3 in Mark Howe’s transcription; see the original in OWHP, 16-7).
37.OWH to John Hessin Clarke, July 1, 1922, Clarke, Papers.
38.Pilcher, “Prostatectomy in Two Stages”; Shackley, “Century of Prostatic Surgery.”
39.OWH to EC, July 2, 7, and 12, 1922, MDHM, 14-22. The July 12 letter in particular is very difficult to make out; for the original autograph letter, see OWHP, 16-7.
40.OWH to EC, August 11, 1922, MDHM, 14-22.
41.Anna K. Codman to OWH, July 22, 1922, OWHP, 15-17.
42.OWH to ASG, December 7, 1922, MDHM, 15-7; OWH to EC, August 11, 1922, MDHM, 14-22; OWH to NG, August 25, 1922, MDHM, 4-6.
43.OWH to NG, September 27, 1922, MDHM, 4-6.
44.OWH to NG, November 4, 1922, MDHM, 4-7.
45.Tip-in notes, Jackman v. The Rosenbaum Company, No. 3, bound volume of opinions, 1922 term, OWHP.
46.OWH to NG, November 4, 1922, MDHM, 4-7; OWH to EC, August 11, 1922, MDHM, 14-22.
47.LDB to FF, January 29, 1923, HBHS, no. 121.
48.Mason, Taft, 170 (“enemies of the Constitution”); WHT to Willis Van Devanter, December 26, 1921, quoted in Urofsky, Brandeis, 581 (“break down the prestige”); WHT to Henry L. Stimson, May 18, 1928, quoted in Pringle, Taft, 2:969–70 (“two votes . . . not very helpful”).
49.Tyson & Brother v. Banton (1927), citing Munn v. Illinois (1876).
50.Weaver v. Palmer Brothers Company (1926); Williams v. Standard Oil Company (1929); Fairmont Creamery Company v. Minnesota (1927); Schlesinger v. Wisconsin (1926); Frost & Frost Trucking Company v. Railroad Commission of California (1926); Louis K. Liggett Company v. Baldridge (1928); Tyson & Brother v. Banton (1927).
51.B-F, 321.
52.John Hessin Clarke to WHT, October 31, 1922, Clarke, Papers; Clarke to Willis Van Devanter, July 28, 1924, Van Devanter, Papers, box 32.
53.Memorandum of talk with FF, January 2, 1964, MDHM, 22-26.
54.Brandeis, dissenting opinion, Jay Burns Baking Company v. Bryan (1924); OWH to FP, May 11, 1924, H-P, 2:136–37; HJL to OWH, January 13, 1918, H-L, 1:127.
55.OWH to HJL, March 1, 1923, H-L, 1:485.
56.OWH to NG, April 21, 1923, MDHM, 4-8.
57.Theodore Roosevelt to Henry Cabot Lodge, September 4, 1906, MDHM, 22-23.
58.OWH to ASG, July 11, 1905, MDHM, 15-8.
59.Taylor, “Disfranchisement in Alabama,” 421; Schmidt, “Black Disfranchisement,” 847.
60.McCabe v. Atchison, Topeka & Santa Fe Railway Company (1914); Berea College v. Kentucky (1908).
61.Lerner, Mind and Faith, 338; JRG, 868; Bailey v. Alabama (1911).
62.LH to MDH, April 29, 1959, MDHM, 22-26; Hand gave a slightly different version of the anecdote in Continuing Legal Education, 119.
63.Tip-in notes, Buchanan v. Warley, No. 231, bound volume of opinions, 1916 term, OWHP. Holmes’s unpublished dissent is also reprinted in the plates following p. 592 of JRG.
64.Curriden and Phillips, Contempt of Court, 123–36, 154–60, 213–14.
65.King, Fuller, 324.
66.United States v. Shipp (1906); OWH to Melville W. Fuller, May 13, 1909, quoted in King, Fuller, 327; Curriden and Phillips, Contempt of Court, 338.
67.Freedman, “Habeas Corpus,” 1502–5.
68.McReynolds’s misstatements of the record are discussed in Waterman and Overton, “Aftermath of Moore,” 121–22.
69.Ibid., 118–19, 123.
70.“Due Process of Law in Arkansas,” New Republic, March 14, 1923, 55–57; “Legal Lynching and the Constitution,” New Republic, March 21, 1923, 84–85; Snyder, House of Truth, 354.
71.OWH to LE, February 5, 1923, H-E, 209.
CHAPTER 16: “My Last Examination”
1.WHT to C. D. Hilles, September 9, 1922; WHT to Charles P. Taft II, May 3, 1925; and WHT to Robert A. Taft, May 17, 1925, quoted in Mason, Taft, 161–62.
2.OWH to NG, February 22, 1925, MDHM, 4-13.
3.OWH to LE, January 27, 1925, H-E, 231; OWH to HJL, August 16, 1924, and March 5, 1925, H-L, 1:646, 719.
4.“Supreme Court,” Time, March 15, 1926; New York World, March 8, 1926, quoted in Snyder, House of Truth, 393.
5.OWH to NG, March 14, 1926, MDHM, 4-15.
6.OWH to FF, December 17, 1925, H-F, 196; OWH to EC, January 18, 1926, MDHM, 14-23; FF to Elizabeth Shepley Sergeant, June 7, 1926, quoted in Snyder, House of Truth, 392.
7.OWH to FF, December 8, 1926, H-F, 210; OWH to Sergeant, December 5, 1926, OWHP, 22-7.
8.OWH to Sergeant, December 7, 1926, OWHP, 22-7.
9.Thomas G. Corcoran to FF, December 9, 1926, OWHP, 58-27.
10.Ethel St. Leger to OWH, April 11, 1927, and Bernard Castletown to OWH, April 22, 1927, OWHP, 15-3.
11.OWH to CM, June 18, 1927, MDHM, 20-25; OWH to NG, December 20, 1927, MDHM, 4-19, and April 9, 1927, MDHM, 4-17.
12.OWH to EC, January 5, 1927, MDHM, 14-23.
13.Thomas G. Corcoran to Alger Hiss, February 2, 1931, OWHP, 59-8; John E. Lockwood to FF, November 5, 1928, OWHP, 58-27; OWH to NG, June 26, 1927, MDHM, 4-18.
14.OWH to Lucy Clifford, June 24, 1927, MDHM, 14-10.
15.OWH to LE, June 27, 1917, H-E, 142; OWH to Lucy Clifford, April 27, 1927, MDHM, 14-10.
16.Except where noted, the details of the Sacco-Vanzetti case here and below are taken from the excellent and meticulously researched account in Snyder, House of Truth, 409–47.
17.OWH to HJL, April 25, 1927, H-L, 2:938.
18.OWH to FF, March 18, 1927, H-F, 211.
19.OWH to LE, August 14, 1927, H-E, 272; OWH to HJL, August 18, 1927, H-L, 2:971; Thomas G. Corcoran to FF, September 13, 1927, OWHP, 58-27.
20.Bard v. Chilton, 20 F.2d 906 (6th Cir. 1927); Snyder, House of Truth, 455–56, 473–74.
21.OWH to HJL, August 24, 1927, H-L, 2:974.
22.OWH to LE, August 14, 1927, H-E, 272.
23.Lombardo, Three Generations, 74–75, 148–55.
24.WHT to OWH, April 23, 1927, OWHP, 22-25.
25.Tip-in notes, Buck v. Bell, No. 292, bound volume of opinions, 1926 term, OWHP.
26.OWH to HJL, April 29, 1927, H-L, 2:939.
27.Dietrich v. Inhabitants of Northampton, 138 Mass. 14 (1884); OWH to ES, September 13, 1910, MDHM, 17-28.
28.Quinn v. Crimmings, 171 Mass. 255 (1898), at 258; Lorenzo v. Wirth, 170 Mass. 596 (1898); Holbrook v. Aldrich, 168 Mass. 15 (1897).
29.OWH to CC, June 18, 1897, OWHC, 1-3.
30.Pokora v. Wabash Railway Company (1934).
31.April 17, 1922, B-F, 303; LDB to FF, November 13, 1927, HBHS, No. 297.
32.Urofsky, Dissent, 194–96.
33.WHT to Horace Taft, June 12, 1928, MDHM, 17-44 (“nastiest opinion”); WHT to Horace Taft, June 8, 1928, quoted in Mason, Taft, 259 (“they are
mistaken”); ibid., 161 (“noisy dissenter”); WHT to Robert A. Taft, March 4, 1928, quoted in ibid., 220 (“much of a Constitution”). Taft’s majority opinion in Olmstead was overturned in 1967 in Katz v. U.S., which held that the Fourth Amendment requires the government under most circumstances to obtain a warrant to intercept private telephone conversations.
34.Sutherland, “Recollections,” 25.
35.American Banana Company v. United Fruit Company (1909).
36.The Western Maid (1922).
37.Kawananakoa v. Polyblank (1907).
38.Zane, “German Legal Philosophy,” 349 n. 83; Zane, “Legal Heresy,” 431, 461.
39.OWH to FP, January 24, 1919, H-P, 2:3.
40.Hiss, Recollections, 35; LDB to FF, February 29, 1928, HBHS, no. 311.
41.LDB note, April 2, 1927, HBHS, no. 271 n. 6; McCormack, “Law Clerk’s Recollections,” 713–14.
42.LDB to FF, April 21, 1929, HBHS, no. 363; WHT to Charles P. Taft, May 5, 1929, quoted in White, Justice Holmes, 459.
43.OWH to NG, April 26, 1929, MDHM, 4-22; LDB to FF, April 28, 1929, HBHS, no. 365.
44.Pringle, Taft, 2:970; OWH to ES, October 24, 1923, MDHM, 17-30.
45.OWH to ES, n.d., MDHM, 17-30.
46.LDB to FF, May 11, 1929, HBHS, no. 366.
47.OWH to LE, July 11, 1925, H-E, 244.
48.United States v. Schwimmer (1929).
49.John E. Lockwood to FF, May 31, 1929, Frankfurter, Papers, reel 91; FF to OWH, May 29, 1929, H-F, 240.
50.Rosika Schwimmer to OWH, January 28, 1930, OWHP, 21-38; OWH to Schwimmer, January 30, 1930, MDHM, 17-27.
51.E. B. White, “Talk of the Town,” New Yorker, June 22, 1929, quoted in Snyder, House of Truth, 505.
52.LDB to FF, April 21, 1929, HBHS, no. 363; John E. Lockwood to FF, May 24, 1929, Frankfurter, Papers, reel 91.
53.Lockwood to FF, May 31, 1929, Frankfurter, Papers, reel 91; Lockwood in Belknap et al., “Remembrances of Holmes,” 394.
54.OWH to CM, October 24, 1929, MDHM, 21-1 (“discreet dames”); Hiss, Recollections, 36–37 (reading aloud); OWH to ES, July 30, 1921, MDHM, 17-29 (“Day of Judgment”); OWH to LE, February 10, 1908, H-E, 33 (“final examination”); Alger Hiss in Louchheim, New Deal, 31 (“little murder”).
55.OWH to FF, November 12, 1932, H-F, 273; entry for November 10, 1933, Howe, Diary, 9; OWH to HJL, September 9, 1929, H-L, 2:1180.
56.WHT to Horace Taft, November 14, 1929, quoted in Pringle, Taft, 2:967.
57.LDB to FF, January 9, 1930, HBHS, no. 400; January 11, 1930, ibid., no. 401; OWH to NG, January 21 and February 26, 1930, MDHM, 4-24.
58.Hiss to FF, February 27 and March 20, 1930, Frankfurter, Papers, reel 91.
59.OWH to NG, February 26, 1930, MDHM, 4-24.
60.LDB to FF, May 26, 1930, HBHS, no. 428; State Tax Commission of Utah v. Aldrich (1942).
61.OWH to ES, December 26, 1929, MDHM, 17-30; OWH to EC, January 23, 1931, MDHM, 14-23.
62.“Death Plucks My Ear,” OWHP, 62-3, and audio recording, OWHA, 8-16.
63.90th Birthday, 1931, OWHP, 59-9.
64.OWH to EC, October 8, 1931, MDHM, 14-23.
65.New Jersey v. New York (1931).
66.Missouri v. Holland (1920).
67.OWH to EC, December 15 and October 27, 1931, MDHM, 14-23; OWH to NG, November 7, 1931, MDHM, 4-28.
68.OWH to NG, Thanksgiving 1931, MDHM, 14-28.
69.Hughes, Autobiographical Notes, 299; H. Chapman Rose interview, 12–13, JSMP, 1-14; Monagan, Grand Panjandrum, 142; LDB to FF, January 10, 1932, HBHS, no. 479.
70.H. Chapman Rose to FF, March 7 and 31, 1932, Frankfurter, Papers, reel 91.
71.OWH to NG, May 2, 1932, MDHM, 4-28; OWH to EC, November 23, 1932, MDHM, 14-25.
72.James Rowe interview, LJPP, 1-35 (dirty jokes); anecdote of Mrs. Ralph Ellis, spring 1933, MDHM, 22-26 (rock in a riverbed); entry for March 6, 1934, Howe, Diary, 29. The milk-price case was Nebbia v. New York (1934). Tyson was formally overruled in Gold v. DiCarlo, 235 F. Supp. 817 (S.D.N.Y. 1964), but as the district court noted in its opinion in that case (subsequently affirmed in a brief per curium by the Supreme Court), Nebbia had already effectively rejected the “fictional test” of a “business affected with the public interest.”
73.Phillips, Frankfurter Reminisces, 241–42.
74.The account of FDR’s visit here and below is from Donald Hiss in Louchheim, New Deal, 36–38.
75.Notes for a Talk on O.W.H., 3, WBLM.
76.“President Sees Holmes Buried at Arlington,” WP, March 9, 1935; Monagan, Grand Panjandrum, 147.
77.Anecdotes, Marion Frankfurter, August 10, 1932, MDHM, 22-26.
78.The parcel with the musket balls was apparently given to Holmes’s nephew and subsequently lost, but Holmes’s lawyer told Mark Howe of having found it in the safe deposit box after Holmes’s death: John S. Flannery to MDH, May 13, 1942, MDHM, 22-29.
EPILOGUE
1.Will of OWH, MDHM, 23-12; Oliver Wendell Holmes Memorial Fund, Senate Document No. 197, May 13, 1940, 76th Cong., 3rd Sess., 5 (copy in MDHM, 23-12). When he retired from the Court, Holmes gave Arthur Thomas his planned legacy at once, and changed his will in a codicil to reflect that fact: check to Arthur A. Thomas, $1,010, June 1, 1932, OWHP, 43-7. The house was eventually sold by the government, and later torn down to make way for an office building.
2.Recommendation to Congress that Bequest of Justice Holmes be Set Aside in a Special Fund, House Document No. 166, April 25, 1935, 74th Cong., 1st Sess. (copy in OWHA, 7-4).
3.John S. Flannery to MDH, May 13, 1942, MDHM, 22-29.
4.Laurence Curtis to Robert M. Benjamin, May 25, 1938, MDHM, 23-12.
5.James H. Rowe Jr. to Robert M. Benjamin, June 6, 1938, MDHM, 23-12.
6.Oliver Wendell Holmes Devise, Senate Report No. 1053, July 21, 1955, 84th Cong., 1st Sess; H.R. 7029, An Act to Establish a Permanent Committee for the Oliver Wendell Holmes Devise, 84th Cong., 1st Sess. (copies in MDHM, 23-11).
7.“Justice Holmes’s 1935 Bequest Remains Unfulfilled,” NYT, May 3, 1983; Katz, “Holmes Devise History.”
8.OWH to Lady Tweeddale, April 4, 1931, H-E, 323; Speech to Class of ’61, CW, 3:504; OWH to John C. H. Wu, September 20, 1923, Wu, “Letters,” 264.
9.FF notes, August 10, 1932, MDHM, 22-26.
10.OWH to LE, September 30, 1932, H-E, 349; for his requests to destroy letters, see for example OWH to NG, December 27, 1920, MDHM, 4-2; OWH to CC, September 5, 1898, MDHM, 13-25; OWH to CSRS, April 16, 1914, MDHM, 19-29; OWH to FF, July 25, 1921, H-F, 119.
11.OWH to HJL, December 9, 1921, MDHM, 5-12. This and the other passages mentioning Holmes’s requests that Laski never publish his letters were omitted by Mark Howe from the published volumes of their correspondence, apparently to avoid embarrassing Laski’s widow, who was still alive at the time: see Alger Hiss interview, 4–5, JSMP, 1-8.
12.HJL to OWH, December 31, 1921, MDHM, 5-12; H-L, 1:v.
13.Alger Hiss interview, 3, JSMP, 1-8; Hiss, Recollections, 39–40.
14.FF to OWH, August 4, 1931, H-F, 264; OWH to HJL, July 25, 1931, H-L, 2:1320.
15.H-F, xxxi–xli.
16.Charles P. Curtis Jr. to LH, [early January 1954], Hand, Papers, 86-21.
17.Mencken, “Mr. Justice Holmes.”
18.West Coast Hotel Company v. Parrish (1937).
19.United States v. Carolene Products Company (1938).
20.In Senn v. Tile Layers Protective Union (1937) the Court upheld a Wisconsin statute barring injunctions against peaceful picketing, and in New Negro Alliance v. Sanitary Grocery Company (1938) similarly held the anti-injunction provisions of a new federal labor law, the 1932 Norris–La Guardia Act, to be constitutional. In National Labor Relations Board v. Jones & Laughlin Steel Corporation (1937), the Court in a 5–4 decision by Chief Justice Hughes found the act’s provisions barring the discharge of workers for union activity valid. And four years later, in a sweeping unanimous opinion by Justice Frankfurter, the Court declared in Phelps Dodge Corporation v. National Labor Relations B
oard (1941), “The course of decisions in this Court since Adair v. United States and Coppage v. Kansas have completely sapped those cases of their authority.”
21.United States v. Darby Lumber Company (1941).
22.Notable examples include Evans v. Gore (1920), dissenting from the Court’s decision that current federal judges were exempt from the income tax on the grounds that the Constitution barred the reduction of the salary of sitting judges, reversed in Helvering v. Gerhardt (1938); Long v. Rockwood (1928), dissenting from the Court’s decision invalidating a state tax on patent royalties, reversed in Fox Film Corporation v. Doyal (1932); Myers v. United States (1926) dissenting from the Court’s decision striking down a law that prevented the president from removing certain officials without congressional approval, reversed for independent agencies in Humphrey’s Executor v. United States (1935).
23.Powell v. Alabama (1932).
24.Cohen, “Justice Holmes,” 207.
25.Urofksy, Dissent, 169–71, lists forty-one Supreme Court free-speech opinions from 1941 to 2011 that have cited Holmes’s Abrams dissent.
26.Girouard v. United States (1946); Hannegan v. Esquire, Inc. (1946).
27.Collins, Fundamental Holmes, 376–77.
28.Speech to Class of ’61, CW, 3:504; Cohen, “Justice Holmes,” 206.
29.“The Profession of the Law,” CW, 3:472–73.
BIBLIOGRAPHY
Abel, Albert S. Review of Holmes-Laski Letters. Edited by Mark DeWolfe Howe. Louisiana Law Review 14 (1954): 472–91.
Acheson, Dean. Morning and Noon: A Memoir. Boston: Houghton, Mifflin, 1965.
——— . Papers. Manuscripts and Archives, Yale University, New Haven, Conn.
Adams, Henry. The Education of Henry Adams. 1918. Reprint. New York: Modern Library, 1931.
Alschuler, Albert W. Law without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press, 2000.
Anderson, James William. “ ‘The Worst Kind of Melancholy’: William James in 1869.” Harvard Library Bulletin 30 (1982): 369–86.
Auerbach, Jerold S. “The Patrician as Libertarian: Zechariah Chafee, Jr., and Freedom of Speech.” New England Quarterly 42 (1969): 511–31.
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