Imbeciles

by Adam Cohen

  Life as a Supreme Court justice proved much to Holmes’s liking. He was a more important man in Washington than he had ever been in Boston, despite all of his intellectual accomplishments and family connections. Holmes and Fanny were soon fielding invitations from some of the city’s most prominent officials. They were regularly invited to dine at the White House, and occasionally to accompany the president and first lady to the theater.

  The docket of the Supreme Court was more interesting to Holmes than the “trifling and transitory” matters he had bristled at on the Supreme Judicial Court of Massachusetts. It was not long before Holmes heard his first major civil rights case. In the 1903 case Giles v. Harris, Jackson W. Giles sued, on behalf of more than five thousand Alabama blacks, to be added to the voting rolls. He charged that blacks in Alabama were systematically being prevented from registering—something that was happening across the South.

  The Alabama Constitution of 1901 had adopted a set of new voting rules designed to prevent blacks from voting. These included a “grandfather clause”—much like the one in Virginia that was an issue in Aubrey Strode’s political campaign—that allowed men who had fought in the Civil War, and descendants of people who had fought in designated wars, to register automatically. The rules were designed to make it easy for whites, but not former slaves and their descendants, to vote. Blacks were subjected to literacy tests administered by white voter registrars who did not want them to vote.

  There was no doubt that the convention that produced the Constitution of 1901 intended to disenfranchise blacks. The convention delegates were all white men, although Alabama at the time had 1,001,152 whites and 827,545 blacks. The convention president also said bluntly that it was intended “to establish white supremacy in this State.” Giles argued that the voting rules violated the Fourteenth Amendment, which guaranteed blacks equal protection of the law, and the Fifteenth Amendment, which expressly prohibited states from denying blacks the right to vote.

  Holmes, writing for the majority, ruled against the disenfranchised black men from Alabama. He argued that if Giles were correct that Alabama’s whole voting system was “a fraud upon the Constitution of the United States,” the court could not become “a party to the unlawful scheme” by “adding another voter to its fraudulent lists.” It was a strange analysis, because ordering disenfranchised blacks to be put on the voting rolls would have been an important step in curing the system’s unconstitutionality.

  Second, Holmes argued that whether Alabama blacks should be added to the voting rolls was the sort of political question courts should stay out of. It was clear, he said, that in Alabama “the great mass of the white population intends to keep the blacks from voting.” To stop whites from doing this, Holmes said, would require the court to “supervise the voting in that state by officers of the court”—something it was not prepared to do.

  Holmes’s opinion in Giles was a major defeat for black voting rights, and a “decisive turning point” in the law, as one legal analysis explained. As conservative whites came back into power across the South with the end of Reconstruction and declared a war on black political rights, Holmes’s decision made clear that the Supreme Court would not intervene. There was nothing inevitable about the court’s antidemocratic ruling: three justices dissented from Holmes’s opinion, including John Marshall Harlan, a former slaveholder from Kentucky, who argued that Giles had a right to register. Holmes’s view that “political rights” of this sort were not enforceable in federal courts remained the law into the 1960s, rebuffing the hopes of generations of southern blacks who fought in the courts for the right to register and vote.

  It seemed odd that Holmes, the thrice-wounded Union soldier from Boston, would not side with black citizens in the former Confederacy seeking the right to vote, particularly when the former slaveholder Harlan did. Holmes was, however, being consistent with his long-held philosophies. It was the gas stokers’ strike all over again: in Holmes’s view, all legislation was properly “class legislation,” because the group in power used its influence to promote its own interests. If white southerners, like British opponents of labor unions, had the power to enact laws that favored their group, that was the natural order of things, and Holmes had no interest in interfering.

  In 1905 the Supreme Court heard another case about the power of special interests to enact laws, and it would be one of the highlights of Holmes’s career. New York had adopted legislation limiting the number of hours bakeries could make their employees work in a week. Limits on hours were a major progressive cause, and New York’s law was an important victory for the labor movement. Joseph Lochner, a baker from Utica who had been convicted of making his employees work excessive hours, challenged the law as unconstitutional, and the Supreme Court agreed. Rufus Peckham, writing for the majority in Lochner v. New York, said the law violated the due process clause of the Fourteenth Amendment by interfering with the “right of contract between the employer and employees.”

  Holmes wrote a famous dissent arguing that New York’s law was constitutional. He said the court had no right to impose its economic views—or as Holmes memorably put it, “The 14th Amendment does not enact Mr. Herbert Spencer’s Social Statics.” Holmes’s dissent was hailed as a liberal triumph. Charles Beard, the progressive historian, called it “a flash of lightning” in the “dark heavens.” But the praise from progressives was undeserved. Holmes did not break with the majority because he believed workers should be protected from abusive conditions that threatened their health. His sympathy lay with legislatures, not overworked bakers.

  In Holmes’s view, legislators should be free to do almost anything they want—whether it helps workers or hurts them. “The only limit I can see to the power of the lawmaker is the limit of power as a question of fact,” he wrote in a letter to his friend Harold Laski. In other words, legislatures should be able to do anything they can find the means to enforce. “When I talk of law I talk as a cynic,” Holmes wrote. “And I understand by human rights what a given crowd will fight for (successfully).” If someone did not want to be oppressed, Holmes believed, they should not go to court—they should find a crowd and fight the tyranny.

  There was another dissent in Lochner that did take a strong progressive stand. John Marshall Harlan, who wrote the main dissent in the case, cited real-world evidence for why New York’s law was necessary to protect bakers. The law applied only to “bakery and confectionary establishments,” where “the air constantly breathed by workmen is not as pure and healthful as that to be found in some other establishments,” Harlan wrote. He went on to quote from a treatise called “Diseases of the Workers”: “‘The labor of the bakers is among the hardest and most laborious imaginable, because it has to be performed under conditions injurious to the health of those engaged in it.’” Two other justices signed Harlan’s dissent, but Holmes did not.

  The Supreme Court heard a series of major civil rights cases in these years, and Holmes almost invariably found a reason to side against the black plaintiffs, as he had in Giles. In 1911, in Bailey v. Alabama, the court struck down Alabama’s debt peonage law, which was slavery by another name. Black men who owed money had “iron manacles . . . riveted upon their legs” and connected by chains, one federal court noted. “They wake, toil, rest, eat, and sleep, to the never ceasing clanking of the manacles and chains of this involuntary slavery.” A “whipping boss” lashed recalcitrant workers with a heavy, 2½- to 3-foot-long leather strap. The Supreme Court agreed with Alonzo Bailey, a victim of the system, that it violated the Thirteenth Amendment, which prohibited involuntary servitude.

  Holmes dissented—one of only two justices to do so. He refused to see the unmistakable parallels between the southern peonage system and slavery. Holmes treated peonage as if it were just another financial arrangement. “Breach of a legal contract without excuse is wrong conduct, even if the contract is for labor,” Holmes said.

  The same year, the court als
o heard a challenge to legally mandated segregation in education. In Berea College v. Kentucky, a Kentucky college was found guilty of violating a state law that required private colleges to separate black and white students. The college challenged its conviction, but the Supreme Court upheld Kentucky’s right to impose racial segregation on its colleges. Holmes voted with the majority.

  Harlan, who had dissented in Giles, and in Plessy v. Ferguson, the notorious 1896 ruling upholding racial segregation, wrote an eloquent dissent in Berea. If the state could prohibit white and black students from learning together, Harlan wrote, “it is difficult to perceive why it may not forbid the assembling of white and colored children in the same Sabbath school, for the purpose of being instructed in the Word of God.” Harlan held up a vision of a constitutional right to racial equality—a vision Holmes did not share.

  Immigrants were another group who drew little sympathy from Holmes. In case after case, he found ways to reject the claims of people trying to enter the country. In United States v. Ju Toy, Holmes wrote the majority opinion holding that Ju Toy, a longtime United States resident returning from China, could be denied entry under the Chinese exclusion acts even though he had been found by a federal court to be an American citizen.

  In March 1911 Holmes turned seventy. The world was changing, and he worried he was being left behind. “Fanny has got one of those dust-devourers that swallows everything into a bag,” he wrote to a friend. “I suffer—[but] it must needs be.” What gnawed at him more than the passage of time or the advent of new technologies like the vacuum cleaner was the feeling he had not achieved greatness. Supreme Court justices were not household names, and nothing he had produced—not The Common Law, not the Lochner dissent—had won him renown. He complained frankly in a letter to a friend, “I have not as much recognition as I should like.” In a letter to another friend, he explained what he was hoping for. “I should like,” he wrote, “to be admitted to be the greatest jurist in the world.”

  There was, as it happened, an influential group of mostly young progressives who were prepared to help Holmes achieve the recognition he sought. The group, many of whose members were associated with Harvard Law School or the liberal-leaning New Republic magazine, admired Holmes and thought he could be useful to their cause. Many of them lived in or frequented a row house at 1727 Nineteenth Street in Washington’s Dupont Circle that “served as a kind of commune for young men in the government” and was known as the “House of Truth.” The group’s influence on Holmes’s reputation was so great that one legal scholar dubbed it “the house that built Holmes.”

  At the center of the group were two men who were themselves close friends: Felix Frankfurter, a Harvard Law School graduate who would go on to join the law school faculty and then the Supreme Court, and Walter Lippmann, an influential columnist and the cofounder of the New Republic. The denizens of the House of Truth were unhappy with the Supreme Court’s antilabor rulings, in particular, and were eager to push it in a more liberal direction. They were looking for a progressive champion on the court, and they decided they had found one in Holmes, who was himself a regular dinner guest.

  Once this influential group adopted Holmes, the pages of the New Republic and the Harvard Law Review began to fill up with accolades for their new hero. On March 8, 1916, when Holmes turned seventy-five, the law review dedicated an issue to the occasion. When Holmes dissented in a pair of cases in which the Supreme Court struck down progressive labor legislation—a federal ban on child labor in Hammer v. Dagenhart and, a few years later, a federal minimum wage law for women in Adkins v. Children’s Hospital—the New Republic lavishly praised his Hammer dissent, and reprinted the Adkins dissent in its entirety.

  As World War I approached, Holmes enthusiastically supported the United States joining the fight. Few Americans understood war as intimately as Holmes, who still bore his Civil War scars. The horror he had once felt toward battle had long since been replaced by the reverence he had put on display in The Soldier’s Faith, his Memorial Day address to the Harvard class of 1895, and he reserved his disgust for those who were trying to keep the nation out of war. In a letter to his friend John Wigmore, the dean of Northwestern University School of Law, Holmes berated the pacifists “who think that something in particular has happened and that the universe is no longer predatory.” He put the matter bluntly: “Doesn’t this squashy sentimentality of a big minority of our people about human life make you puke?”

  • • •

  Holmes’s early years on the Supreme Court were a time when many intellectuals were drawn to eugenics, and Holmes was one of them. He was, in many ways, fertile ground for ideas about human superiority and inferiority. From early childhood, it had been impressed upon him that he had been born into an elite—one that defined itself by its bloodlines.

  Holmes’s father, a medical school dean and a man with immense pride of ancestry, was an early eugenics advocate. In 1861, in the same book in which he coined the term “Boston Brahmin,” Dr. Holmes held forth on the superiority of the “aristocracy” of which he considered himself a member. Eight years before Galton published Hereditary Genius, Dr. Holmes described the “Brahmin caste of New England” as a hereditary elite, physically and mentally. They were identifiable, he said, by their appealing “physiognomy”—slender, smooth-faced, and quick-eyed. At the same time, they were natural-born scholars, whose “aptitude for learning” was “congenital and hereditary.” Dr. Holmes contrasted his own elevated caste with a simpler class among whom they lived, people with “coarse” mouths and “clumsy” facial movements—a group who had “been bred to bodily labor.”

  In 1875 in an essay in the Atlantic Monthly, Dr. Holmes applied his ideas about the heritability of good and bad traits to crime—and praised Galton in the process. In “Crime and Automatism,” Dr. Holmes wrote: “If genius and talent are inherited, as Mr. Galton has so conclusively shown . . . why should not deep-rooted moral defects and obliquities show themselves, as well as other qualities, in the descendants of moral monsters?” He examined the case of “Margaret, the mother of criminals”—the same woman whose descendants Dugdale studied in The Jukes—and concluded that “in most cases crime can be shown to run in the blood.”

  The younger Holmes shared his father’s belief in the power of bloodlines, and he began writing about eugenic ideas well before they were popular in America. In 1873 he published his article on the gas stokers’ strike, which was heavily infused with social Darwinist thinking, including its assertion that the law “must tend in the long run to aid the survival of the fittest.” In The Path of the Law, in 1897, he put forward the possibility that criminality had a genetic basis, echoing Dr. Holmes. “If the typical criminal is a degenerate, bound to swindle or to murder by as deep seated an organic necessity as that which makes the rattlesnake bite,” the younger Holmes wrote, “it is idle to talk of deterring him by the classical method of imprisonment.”

  Holmes not only believed that bloodlines exerted a strong influence—for good, as in the case of families like his, and ill, as in the case of the criminal. He also insisted, as the eugenicists did, that actions should be taken to increase the positive hereditary influences on society and to reduce the negative ones. He had hinted at the idea in The Soldier’s Faith, which contained a passing reference to “a future in which science” would “take control of life, and condemn at once with instant execution what now is left for nature to destroy.”

  As eugenics became more popular, Holmes began to talk more directly about the affirmative role society could play in human breeding. Speaking to a Harvard Law School Association of New York dinner on February 15, 1913, about law and the court, Holmes veered into eugenic musings. “I think it probable that civilization somehow will last as long as I care to look ahead,” he said, “perhaps with smaller numbers, but perhaps also bred to greatness and splendor by science.”

  Holmes was beginning to educate himself more on the issues
the eugenicists were raising. In 1914 he bought a copy of a new edition of Thomas Malthus’s An Essay on the Principle of Population. Holmes was thoroughly won over by the book’s bleak vision of the future, in which human population outstripped the food supply. In a letter to his friend Frederick Pollock, Holmes wrote, “Malthus pleased me immensely—and left me sad.” Malthus had “busted fallacies” a hundred years ago, Holmes said, “that politicians and labor leaders still live on.” Holmes would later declare himself a “devout Malthusian.” Malthus appealed to Holmes’s cynical, misanthropic side. He later explained to a friend, “I look at men through Malthus’s glasses—as like flies—here swept away by a pestilence—there multiplying unduly and paying for it.”

  In 1915, Holmes made his most direct plea yet for eugenics, in an essay in the Illinois Law Review titled “Ideals and Doubts.” The way to achieve the “wholesale social regeneration” that forward-looking people wanted, he argued, was not through “tinkering with the institution of property”—as the communists were urging—but “only by taking in hand life and trying to build a race.”

  In his correspondence with friends, Holmes wrote as a eugenicist. In a 1920 letter to Holmes, Frederick Pollock said his “complaint against war” was not that it killed men but that it killed “the wrong ones.” Wars took “an undue proportion of the strong and adventurous” and left “too many weaklings and shirkers, thus working a perverse artificial selection.” Holmes agreed, telling Pollock the discussion made him inclined to believe “it would be possible to breed a race.” In the five years since his Illinois Law Review article, his phrasing had become more biological: he had gone from wanting to “build” a race to wanting to “breed” one.