Imbeciles

by Adam Cohen

  In a 1921 letter to Frankfurter, Holmes returned to the idea in his Illinois Law Review article that biology was a better route to reform than leftist economic measures. Holmes said he did not think “intelligent socialism” could accomplish much “by tinkering with property without taking in hand life.” It would also require “restricting propagation by the undesirables and putting to death infants that didn’t pass the examination, etc. etc.” Holmes said he didn’t “know enough to say that I want it,” but he did not say he was opposed—leaving open the possibility of supporting infanticide to reduce the number of “undesirables.”

  As Holmes saw it, the legal system had a role to play in ensuring that the “right” people reproduced. He argued this most directly in the introduction he supplied to his friend John Wigmore’s 1923 book, The Rational Basis of Legal Institutions. Holmes wrote favorably of “legislation that aims . . . to improve the quality rather than increase the quantity of the population,” which sounded a lot like the eugenic sterilization laws many states had by then enacted. Holmes said that he could understand insisting that, “whatever the cost, so far as may be, we will keep certain strains out of our blood.”

  Holmes’s support for eugenics was notable for the extremity of his views. Many prominent people supported eugenics, ranging from establishment figures, such as former president Theodore Roosevelt and professors from Yale and Stanford, to reformers and a few radicals. But as one legal scholar has observed, “No one of note . . . joined Holmes in writing approvingly of . . . ‘putting to death infants that didn’t pass the examination.’”

  Holmes’s support for eugenics was notable for another reason: he was not, in general, a supporter of causes. Many people in his intellectual circles, including those he saw regularly at the House of Truth, were fighting for minimum wage and maximum hour laws, bans on child labor, antitrust laws, and other progressive goals, but Holmes was indifferent to all of it. He was, as one scholar has observed, “deeply cynical about legislated reforms that were intended to make the world over.” Eugenics was an exception to Holmes’s overarching cynicism—it was a movement to reform the world that he actually believed in.

  On the Supreme Court, the great issue of the moment was not eugenics but free speech. During the war years, the nation was torn by battles between radicals and the government. That conflict found its way to the court in the form of a series of First Amendment cases that did more than any others to establish Holmes’s reputation.

  In March 1919 the Supreme Court decided the case of Schenck v. United States. Charles Schenck, the general secretary of the Socialist Party, was appealing his conviction for interfering with military recruitment. Schenck had mailed leaflets to fifteen thousand potential military draftees urging them to oppose the war and the draft. When he was charged with conspiracy to violate the Espionage Act, he argued that the leaflets were protected free speech under the First Amendment.

  Holmes, writing for a unanimous court, upheld the conviction. In his opinion, he set out the “clear and present danger” test of free speech. The First Amendment, he said—using his famous aphorism—did not protect “falsely shouting fire in a theatre.” It would become a famous free speech test, though Holmes’s application of it was odd. There was no evidence that Schenck’s pamphlets had persuaded anyone to resist the draft. But Holmes considered them the equivalent of a panic-inspiring shout in a crowded theater—posing a “clear and present danger”—and found them not to be constitutionally protected.

  Two more speech cases followed a week later, and Holmes again wrote opinions, for unanimous courts, rejecting the speakers’ appeals. In Frohwerk v. United States, the editor of a German-language newspaper in Missouri was convicted under the Espionage Act of publishing articles critical of the war and the draft and sentenced to ten years in prison. Holmes did not apply the “clear and present danger” test, perhaps because it would have been hard to argue Frohwerk’s articles, which were not directed at draftees, met the standard. Instead, he invoked a test that was less protective of speech, and applying it affirmed the conviction and the ten-year sentence.

  In Debs v. United States, Holmes wrote the majority opinion upholding the conviction of the socialist leader Eugene V. Debs for giving an antiwar, antidraft speech. Once again, Holmes did not mention the “clear and present danger” test. As in the Frohwerk case, it would have been hard to show that the standard had been met, since the government had not made any showing that Debs’s speech posed any real danger to the country.

  With these three opinions in quick succession, Holmes was developing a reputation as an opponent of free speech. In a letter to Frederick Pollock, he complained of the backlash. “I am beginning to get stupid letters of protest against a decision that Debs, a noted agitator, was rightly convicted of obstructing the recruiting service so far as the law was concerned,” he wrote. “There was a lot of jaw about free speech, which I dealt with somewhat summarily in an earlier case—Schenck v. U.S. . . . also Frohwerk v. U.S.” In fact, Holmes’s anti-speech rulings went as far back as 1892, when he briskly dismissed the claim of the New Bedford policeman fired for off-duty speech.

  After his three major opinions hostile to speech rights, Holmes abruptly changed course. The court heard Abrams v. United States, in which Jacob Abrams, a Russian immigrant anarchist, challenged his conviction for distributing antiwar leaflets. In November 1919, the majority ruled that Abrams’s actions violated the Espionage Act, but this time Holmes dissented. His dissenting opinion included some of the most eloquent words about free speech in American law, and introduced the metaphor of a marketplace for the “free trade in ideas,” which would become influential in future discussions of the First Amendment. A few years later, Holmes would write another ringing dissent, in Gitlow v. New York, in which the majority upheld the criminal anarchy conviction of Benjamin Gitlow for publishing a socialist newspaper.

  There are a number of theories for why seventy-eight-year-old Holmes changed his views on free speech so dramatically, and so quickly. One is that the repression of speech during the world war gave him a new appreciation for the importance of free expression. His thinking may have been influenced by an article, “Freedom of Speech in War Time,” that Zechariah Chafee, a young Harvard law professor, published in the Harvard Law Review. Another theory is that he was persuaded by a group of friends—including Frankfurter, Harold Laski, Learned Hand, and Chafee—who lobbied him into changing his mind.

  Holmes’s change of heart may, however, have been more calculating. His progressive supporters had been outspoken in their criticism of his anti-speech rulings. Ernst Freund, a noted University of Chicago law professor, had attacked the Debs opinion where it no doubt hurt Holmes the most—in the pages of the New Republic. When Holmes switched positions in Abrams, Freund mailed the dissent to Frankfurter, Lippmann, and other members of his progressive circle. If Holmes’s goal in championing Jacob Abrams’s free speech rights was to win the progressives’ approval, he succeeded impressively. The New Republic paid tribute to what it called “the remarkable dissenting opinion of Mr. Justice Holmes,” and declared that it would be of critical importance to the future of First Amendment law. Frankfurter wrote to tell Holmes of “the gratitude and, may I say it, the pride I have in your dissent . . . you lift the voice of the noble human spirit.”

  With his eightieth birthday approaching, Holmes took time off from his Supreme Court work to compile a volume of his collected legal writings. Just as he saw The Common Law as the capstone to his first four decades, he viewed Collected Legal Papers as a summing up of his judicial achievements. Holmes said that assembling this “little basketful” gave him “a mild excitement at the rather old little boy going out in a new jacket and trousers.” The book’s reviews were largely positive, and critics used its release as an occasion for looking back on a career that was assumed to be near its end.

  Holmes, however, showed no signs of slowing down. After the judicial h
ighs of the World War I era, his next several years on the court were quieter. In 1921 Holmes wrote the majority opinion in a sharply divided 5–4 ruling upholding Washington, D.C.’s rent control laws. He sided with the liberals, to the consternation of the court’s free-market conservatives, but as was so often true, for Holmes the case was largely about judicial passivity. As long as Congress acted within its authority, he wrote, “we have no concern, of course, with the question whether” its “means were the wisest . . . or will effect the result desired.”

  In May 1921 there was major change on the court when the chief justice, Edward Douglass White, died in office. Warren G. Harding, the newly elected Republican president, appointed former president William Howard Taft to the position. Taft, who had been the twenty-seventh president, became the tenth chief justice, making him the only person ever to lead both the executive and judicial branches. Holmes and Taft liked each other, and the new chief justice, who bought a house not far from Holmes’s, walked the older man to work most mornings.

  The Taft court was conservative and pro-business. In April 1923, in Adkins v. Children’s Hospital, the court struck down a law passed by Congress that established a minimum wage for women and children in Washington, D.C. The majority ruled that the law interfered impermissibly with “liberty of contract.” Taft and Holmes both dissented, but on different grounds. Taft argued that the minimum wage was similar to other economic regulations the court had upheld. He insisted the court must not strike down laws because they promote “economic views” that it “believes to be unwise or unsound.” For Holmes, it once again came down to deference to the legislature. He had “doubts” about the law, he said, but it was within Congress’s power to enact.

  The court took this idea of “liberty” beyond purely economic rights. That same year, in Meyer v. Nebraska, the justices considered a challenge to Nebraska’s ban on teaching in any language but English. A parochial school teacher who taught in German claimed the law, which was part of a World War I–era drive to ban German from public life, violated the right to liberty under the Fourteenth Amendment.

  The court agreed. Liberty, it said, meant more than just “freedom from bodily restraint.” It also included the freedom “to acquire useful knowledge, to marry, establish a home and bring up children,” to worship as one wished, and “generally to enjoy those privileges” that have long been recognized “as essential to the orderly pursuit of happiness.” These freedoms are not absolute, the court said, but the state cannot deny them through a law that is “arbitrary or without reasonable relation to some purpose within the competency of the State to effect.” Even though Nebraska’s law had a valid purpose, there was no emergency that justified its infringement on “rights long freely enjoyed.”

  Holmes dissented, joined by one other justice, George Sutherland. For Holmes, this was another case about the power of legislatures. “We all agree, I take it, that it is desirable that all the citizens of the United States should speak a common tongue,” Holmes said. Looking at the Nebraska law, he could not say with certainty that it was not “a reasonable or even necessary method of reaching the desired result.”

  Two years later, in Pierce v. Society of Sisters, the court struck down another state law on liberty grounds. Oregon, acting out of anti-Catholic animus, had required parents to send their children to public school. Invoking Meyer, the court ruled that the law unreasonably interfered with parents’ liberty “to direct the upbringing and education of children.” This time, Holmes and Sutherland joined the opinion, which was unanimous.

  On March 8, 1926, Holmes celebrated his eighty-fifth birthday and was, as usual, flooded with letters and telegrams of congratulations. His appearance that year on the cover of Time magazine brought him the sort of national acclaim he coveted—an honor that was, no doubt, only modestly diminished for Holmes by the caption under his portrait: “as venerable as his father.” Holmes’s progressive claque showered him with accolades. In a column that ran on Holmes’s birthday, Walter Lippmann wrote in the New York World that “in every high court and in every law school throughout the world he is known and studied and revered as one of the few greatest minds who have dealt with the law in the course of the last century.” Felix Frankfurter, writing in the New Republic, was even more purple in his prose. He hailed “the tender, wise and beautiful being who is Mr. Justice Holmes” as “one of those unique gifts, whose response to life is so transforming that he vivifies life for all who come within his range.”

  • • •

  After twenty-five years on the Supreme Court, Holmes’s legal philosophy was clear. He did not, for the most part, believe judges should strike down legislative enactments, and except for his newfound interpretation of the First Amendment’s free speech right, he had a narrow view of individual rights under the Constitution. Holmes had little interest in rescuing society’s victims—the Alabama black man cheated out of the right to vote by the state’s white majority or shackled until he paid off his debts, or the Chinese American citizen turned away at the border on account of his national origin.

  Holmes had his activist moments, as Jacob Abrams and others could attest. Some years earlier, in the case of Silverthorne Lumber Co. v. United States, Holmes had written an opinion that struck an important blow for defendants’ rights. It stated that when the government seized evidence from a criminal suspect illegally, copies of that evidence could not be used to prosecute him—a pro-defendant’s rule that would later be immortalized as the “fruit of the poisonous tree” doctrine. And in a couple of years, he would notably dissent in Olmstead v. United States, in which the majority upheld a conviction for which prosecutors used evidence obtained by a warrantless wiretap.

  Holmes’s willingness to sit back and let society’s various interest groups battle it out was, however, considerable. He acknowledged his own instinct for passivity, particularly when asked to second-guess legislatures. In a letter to his friend Harold Laski, he described the standard he applied in challenges to a legislature’s decision in setting the price of gas. “We accept the judgment” of the legislature, Holmes said, “unless it makes us puke.”

  Holmes’s approach to judging—one scholarly critic called it “the judge as spectator”—likely had several explanations. To some extent, it simply reflected the classic reserve of the Boston Brahmin social class he had been born into. Holmes’s friend Henry Adams—a member of a family that had produced two presidents—described this ethos in “Buddha and Brahma.” In that poem of resignation, a wise man describes himself as “content to tolerate what I cannot mend.”

  Another factor contributing to Holmes’s judicial passivity was his lack of interest in making moral decisions. Holmes gave little thought to what the fair outcome would be in the cases before him, and he rarely cared whether the result would be good for society. He considered the Sherman Antitrust Act, a landmark statute reining in monopoly power, to be a “foolish law,” but he insisted that this view did not affect how he interpreted it. “I have little doubt that the country likes” the act, he wrote to his friend Harold Laski, “and I always say, as you know, that if my fellow citizens want to go to Hell I will help them. It’s my job.”

  Holmes’s opinions that were hailed for having a progressive vision were almost always about something else—generally deference to legislatures or larger social forces. His fellow justices understood this. They knew “he didn’t care a straw for the ‘social’ or ‘progressive’ legislation that he was said to be heroically defending,” Chief Justice Charles Evans Hughes’s biographer observed. They “were well aware of his scorn for any deviation from the result he thought the law required because that result might be ‘unjust’ to the individuals concerned.”

  Holmes’s judicial philosophy was, however, ultimately about more than deference and moral neutrality. It derived from a deeply held belief that the hierarchies that arise in the world are part of the natural order, and worthy of respect and deference
. One critic observed that in his jurisprudence Holmes “announced that law is the will of the stronger—‘the jungle-toothed realism . . . of what the crowd wants.’”

  It was a harsh assessment, but not an inaccurate one. Holmes’s approach to the law suited the interests of society’s winners. It was a philosophy that accepted the worldly success of his own Brahmin social caste as right and good, and argued that people like him should be free to use their power as they wished. Holmes’s philosophy left scant room for the disadvantaged and the weak, who hoped the legal system would soften society’s blows. In particular it had little to offer a poor, uneducated young woman from the rural South, who wanted the court to protect her from the state hospital in which she was confined, the state of which she was a citizen, and the popular social movement that had caught her in its sights.

  Nine

  Oliver Wendell Holmes

  In the spring of 1927, Carrie Buck’s legal case entered its final phase, as it headed to the United States Supreme Court. The eugenicists would be arriving at the court with a degree of momentum. They had put together a strong test case. Dr. Priddy had carefully chosen Carrie to be at the center of it, and in many ways she seemed ideal: his own institution had examined her and declared her to be a moron, he could argue that she was part of a feebleminded family, and she was a woman in her early childbearing years. Strode had identified strong expert and fact witnesses and gotten their testimony on the record.

  The case had gone well so far. The colony had won in the Amherst County Circuit Court, and the Virginia Supreme Court of Appeals had upheld the eugenic sterilization law and the order of sterilization against Carrie. Along with the victory from Virginia’s highest court, the Michigan Supreme Court had recently upheld that state’s eugenic sterilization law—the two biggest legal successes for the movement in more than a decade.