Oliver Wendell Holmes

  OLIVER

  WENDELL

  HOLMES

  A Life in War, Law, and Ideas

  STEPHEN BUDIANSKY

  CONTENTS

  PROLOGUE: “WHAT A MEDLEY OF A MAN!”

  1.DR. HOLMES’S BOSTON

  2.A NEW ENGLAND BOYHOOD

  3.HARVARD’S REGIMENT

  4.THE WILDERNESS

  5.“SOCIETY OF JOBBISTS”

  6.THE COMMON LAW

  7.HOLMES J.

  8.LABOR, CAPITAL, AND DAMES

  9.IDEALS AND DOUBTS

  10.“SO GREAT AND SO DIFFERENT”

  11.DUE PROCESS

  12.1720 EYE STREET

  13.HOLMES DISSENTING

  14.FREE SPEECH

  15.TAFT’S COURT

  16.“MY LAST EXAMINATION”

  EPILOGUE: “MEN WHO NEVER HEARD OF HIM WILL BE MOVING TO THE MEASURE OF HIS THOUGHT”

  ABBREVIATIONS

  NOTES

  BIBLIOGRAPHY

  INDEX OF COURT CASES

  SUBJECT INDEX

  To have doubted one’s own first principles is the mark of a civilized man.

  —OLIVER WENDELL HOLMES JR.

  OLIVER WENDELL HOLMES

  Justice Oliver Wendell Holmes in Washington, 1914

  PROLOGUE

  “What a Medley of a Man!”

  As he approached his seventy-fifth year in the winter of 1916, Justice Oliver Wendell Holmes of the United States Supreme Court was almost as recognizable a sight to tourists wandering the nation’s capital as the Washington Monument or the Smithsonian Institution.

  Every afternoon, when the Court was in session, the justice would walk back from the Capitol to his brownstone at 1720 I Street, just west of the White House. Impeccably dressed in the manner of the perfect Edwardian gentleman, he cut a commanding figure as he briskly strode his daily two miles home: his six-foot-three frame held erect like the soldier he had once been, magnificent white moustaches like a cavalry colonel’s, always turned out in formal top hat, high wing collar, cutaway coat, and striped trousers purchased from the best shops in London on his frequent visits there.

  He reported to friends his facetious relief that he had so far escaped being referred to in any of the newspaper articles about his upcoming birthday as “the venerable jurist”—“which is the sacramental phrase.”1 He was one of those rare men who had actually grown more handsome with age, possessed of a full head of white hair, blue eyes that shone with undiminished intenseness beneath bushy brows, and a beautiful baritone voice that carried the now vanished patrician mid-Atlantic accent that ordinary Americans would become familiar with from Franklin D. Roosevelt’s fireside chats.

  Dean Acheson recalled the “arresting” impression he made upon him at their first meeting, just after Acheson’s arrival in Washington to take up his position as Justice Louis D. Brandeis’s legal secretary. “Possessed of a grandeur and beauty rarely met among men,” observed Acheson, “his presence entered a room with him as a pervading force.”2

  There were certainly no hints of his slowing down. “I . . . most of the time feel as I did fifty years ago,” he told the American diplomat Lewis Einstein, one of his many considerably younger friends, “except that I am much happier.” He still bounded up the stairs to his study two at a time and still began each day with a bracing cold bath—a practice he carried on until age eighty-eight, when he finally gave it up in favor of a warm bath at bedtime.3

  To the young lawyers in Washington for whom he always had time for a “jaw,” regaling them with a sparkling stream of talk about philosophy, law, and literature, his wit ever at the ready to skewer the pomposities and self-delusions of men, the years vanished altogether. “It could never to occur to a younger man that he was not talking to one of his own age,” said one acquaintance forty years his junior. Charlie Curtis recalled how as a student at Harvard Law School in 1916 he had been invited to tea with Holmes, and at once found himself so deep in a lively conversation that—to his horror as he replayed the scene in his mind on the way home—he was “telling the justice what the law was.” Curtis caught himself just as he was about to tap the great man on the knee to emphasize a point.4

  As oft noted as the justice’s mental and physical vigor was his extraordinary embodiment of the sweep of history. As a Union officer in the Civil War he had barely escaped death at Ball’s Bluff and Antietam when musket balls tore through his chest and neck, missing heart, spine, and carotid artery by an eighth of an inch. He had spoken to Grant and shaken hands with Meade at the Battle of Spotsylvania, and seen Lincoln dodge enemy fire at Fort Stevens during Jubal Early’s raid on Washington. As a boy he knew Ralph Waldo Emerson as a family friend and dimly remembered Herman Melville, a summer neighbor, as “a rather gruff taciturn man.”5 Traveling Europe after the war, he climbed the Alps with Leslie Stephen, better known to later generations as the father of Virginia Woolf; while in law school he became fast friends with Henry James and his brother William, soon to become, respectively, the novelist and philosopher of their generation. To Holmes they were “Harry” and “Bill.” On visits to England he met the young Winston Churchill and the old Anthony Trollope; in Washington, Bertrand Russell stopped by more than once to talk philosophy.

  A quiz show in the 1960s posed the question, “Which American met, during his lifetime, both John Quincy Adams and Alger Hiss?” The answer of course was Holmes, who had met the sixth president of the United States—another family friend of his Boston boyhood—when he was five years old, and who had employed the future Soviet spy as one of his last law secretaries in 1929.6

  But it was the Civil War that was his touchstone. “I hate to read about those days,” he told friends; he had no interest in reliving the war’s “squalid preliminaries,” or “the blunders and worse” of its battles.7 When a cousin sent him the British writer Lord Charnwood’s biography of Lincoln he felt obliged to tackle it but halfway through confessed, “I . . . should praise God if I had finished the book or someone stole it.”8

  Yet he was keenly alive to the war’s lasting meaning for him, the profound way those terrible and ennobling experiences of youth had shaped his life. A drive to Fort Stevens was always part of the program for out-of-town visitors and for each year’s new secretary. He marked each anniversary of his brushes with death by solemnly drinking a glass of wine “to the living and the dead,” and never failed, when writing a letter or postcard to a friend around those dates, to note the occasion:

  1908

  the anniversary of Antietam, where 1862 / 46 years ago (!) I was shot through the neck.9

  If the war destroyed forever the idealism and optimism of the world of his boyhood, the naïve Boston Unitarian faith in the inevitable triumph of moral virtue, guided only by education and man’s innate rationality, it had substituted a profound lesson in the practical courage of everyday life. “The men who have been soaked in a sea of death and who somehow have survived, have got something from it which has transfigured their world,” he said in a speech to the veterans of his old Army corps the year he arrived in Washington to take his place on the Supreme Court. “They know the passion and irony of life.”10

  He had no illusion of the role that chance had played in determining who survived and who did not. “It almost humiliates me to think of my luck,” he remarked years later. But he keenly felt his good fortune not only in emerging with his skin intact, but in having had the chance to learn at an early age that for “most things in this world, half their terrors vanish when you walk up and tackle them.” Once “you lay hold of the lion’s skin it comes off and the same old donkey is underneath.”11

  As a young officer in the Civil War, 1862

  Or, as he summarized his philoso
phy of life and work as he approached his ninetieth year:

  My old formula is that a man should be an enthusiast in the front of his head and a sceptic in the back. Do his damndest without believing that the cosmos would collapse if he failed. One should have the same courage for failure that many have for death.12

  If all else failed one could be “a good soldier,” he insisted. He thought it simply bad form to parade one’s fears or give way to “prophesying evil or drumming on the void,” like his overrefined Boston intellectual friends Henry and Brooks Adams. “To file in and do your damndest remains now as heretofore the only solution, to my mind.” It was the only way to real happiness; it was also more likely to do some actual good for the world than more self-conscious striving at altruistic ends.13

  In Washington he ran his life with military promptitude, beginning with breakfast every day at 9:30. Hiss was awestruck at the standard Holmes morning meal: coffee; a whole orange, which the justice would try to peel in a single continuous piece; a large bowl of porridge with cream; then a poached egg on a slice of toast, first spread with “an absolute mat” of anchovy paste. “It would be enough to take the head off an ordinary person,” Hiss said. When several years later he saw Holmes described by one writer as a “morose” and fundamentally unhappy man, he dismissed the idea out of hand: no one could possibly be unhappy, he thought, who could dispatch a breakfast like that each morning with such “gusto.”14

  At precisely 11:25 the justice would prepare to leave for the Court—“a solemn rite,” one of his secretaries described it: the justice helped on with shoes and rubbers; mohair housecoat changed for formal suit coat; morocco-leather-bound docket handed to his messenger; a few last-minute words of chaff from his wife, Fanny, on the way out the door (“Straighten up, or you’ll be an old man before your time!”); then down the steps, where his driver Charlie Buckley waited at the curb with horse and buggy. Then return from the Court around 5, work until 7, dinner at 7:30, work again until 9; then downstairs to play solitaire and listen while Fanny read aloud. Midnight to bed; lights out at 1.15

  Each fall he and Fanny scheduled their return from their summer home at Beverly Farms on the North Shore of Boston at the last possible moment before the start of the Court’s term on the first Monday in October; they usually took the overnight train to Washington to arrive on the Wednesday morning of the week before. His new secretary, selected each year from the graduating class of Harvard Law School, was instructed to show up on Friday at 11 a.m. More than one anxious young man understandably arrived early, only to discover that the judge meant to be taken literally.

  Barton Leach would forever remember his introduction to the justice’s well-regulated household. “I got to the house about 10:30, decided I was too early; squirmed for fifteen minutes on a bench in the little park at the corner of Connecticut Avenue and Eye Street where there is a statue of Farragut . . . rang the bell and found that I was still too early and would not be received until precisely eleven.” (On a subsequent walk through the neighborhood, Leach recalled, the justice shared his schoolboy glee in pointing out how the statue of the Civil War admiral was “most amusing when viewed from one particular angle,” the unfortunate effect of the telescope the admiral is holding at waist level.)16

  The determination with which Justice Holmes attacked his work disconcerted everyone, not least his more sober or plodding brethren. When, in his mid-fifties, he took up riding a bicycle for the first time, he joked to friends that he proceeded “at a comfortable judicial speed.”17 No one would have used those words to describe the pace at which Holmes “fired off,” as he always put it, his Supreme Court opinions. While the Court was sitting, the justices met every Saturday morning to deliberate and vote on the cases they had heard during the week; after the conference the chief justice would decide which justice would write which opinions, sending the assignments by messenger to the justices’ homes late Saturday afternoon.

  Most waited to begin work on their cases until the Court went into one of the regular two- or three-week recesses that were scheduled throughout the term just for that purpose. But “Holmes was positively uncomfortable until his assignment was completed,” noted Chauncey Belknap, his secretary for the 1915–16 term.18

  This was before the modern practice of judges having law clerks draft their opinions for them: Holmes wrote every word himself, in a flowing if not always easily decipherable hand, using a steel-nibbed pen and ink while standing at an upright mahogany desk that had belonged to his grandfather, a judge on the Massachusetts Supreme Judicial Court before him. He would launch into the work at once, starting on Saturday the moment his assignment arrived, putting in an hour or two before dinner, continuing on Sunday, and invariably delivering the final draft in time for it to be printed and circulated to the other justices by Tuesday. If he had a second case to write, as he often did, that was done by the following Saturday, at which point he frequently importuned the chief justice for still more work, offering to take the load off his slower brethren.19

  “Why don’t you send me a real stinker that will be a real relief to you?” he once asked.20 When Chief Justice Melville Fuller occasionally delayed getting out the justices’ assignments until Monday, Holmes found it unbearable:

  Dear Chief

  Will you let me know as soon as convenient the cases you assign to me. I worry until I know. Nil actum reputans dum quid superesset agendum.21

  The Latin quotation was from Lucanus’s epic poem about Caesar. It translates to, “He believed nothing done, so long as anything remained undone.”

  “I would like to write them all if I could,” he confided to his friend and North Shore neighbor Ellen Curtis in 1903, shortly after joining the Court. He was not actually joking. He did not write them all, but he did produce 873 signed opinions—still a record, even among the justices who exceeded his twenty-nine years on the bench—along with 30 separate concurrences and 72 dissents.22 He had felt exactly the same way when he was on the Massachusetts high court, where he wrote nearly a thousand opinions over twenty years.23

  He brought that same zest for duty to everything. In 1865, at age twenty-one, he began keeping a list of every book he read, noting them down in tiny handwriting in a small leather memorandum book, known to his secretaries as the “Black Book.” By the time of his death the list exceeded four thousand, which worked out to more than a book a week for seventy years.24 The range was extraordinary: law, philosophy, sociology, literature, religion, history, economics, murder mysteries, poetry, science. He read the classics and the latest authors, Montaigne, Virginia Woolf, Dickens, Freud, Saint Augustine, Karl Marx, Shakespeare, Voltaire; he read Very Good, Jeeves by P. G. Wodehouse (“which makes me roar”), Hemingway, Spinoza, the Federalist papers, Balzac, James Joyce. He read Proust in French (“it tells of nothing much, in long sentences of not too easy French, but it seemed to call up all the melancholy of youth”); Homer in Greek; Dante’s Inferno in Italian, a language he claimed not to know, but said he could manage by drawing on his knowledge of Latin and French. He similarly tackled “The Lusiads,” the great epic poem of the sixteenth-century Portuguese national poet Camoens, with the aid of a French translation to help construe the original.25

  He quipped that a man would get credit in heaven for all the “dull but worthy books” he read; wryly referring to himself as “one who has Boston duty in his bones” (or “this poor Calvinist gone wrong”), he attributed his zealous reading to an inability to shake the gospel of self-improvement absorbed in his youth. In his eighties, he began reading Thucydides in Greek for the first time. To his wondering secretary he explained, “When I appear before le bon dieu, he may say to me, ‘Holmes, can you recite on Thucydides?’ If I have to say, ‘No, Sire,’ think what a fool I’d feel.”26

  He had a rule that a book once started had to be finished. James Rowe, his last secretary, remembered the then-retired justice literally groaning aloud over one deathly dull political tome Brandeis had pressed on him yet stead
fastly refusing to abandon it. The only book any of his secretaries could ever remember him giving up on was D. H. Lawrence’s scandalous novel Lady Chatterley’s Lover. Holmes was then in his ninetieth year, and had begun having his secretary read aloud to him. The increasingly red-faced young man reached page 107 before Holmes finally interrupted, “Sonny, we will not finish this book. Its dullness is not redeemed by its pornography.”27

  If he took duty seriously, he thought the one deadly sin of mankind was to take itself seriously. His deep strain of philosophical skepticism was inseparable from an equally deep sense of humor, usually mordantly focused on the folly of human overimportance. “An angel of average intelligence would smile at what we call our aspirations,” he wrote to his young English friend Ethel Scott. He enjoyed giving all of his acquaintances his homespun distillation of the skeptic’s creed: “Having made up your mind that you are not God,” he admonished them, “don’t lie awake nights with cosmic worries.”28

  Or, as he more seriously explained late in his life, “The Army and the other stings of life made it impossible for me, I think, to have a swelled head.” He thought skepticism “a saving grace if it takes in enough of oneself”; and, conversely, that self-importance was simply incompatible with self-awareness, maturity, or experience. “When I see a man with a really swelled head,” he told his old friend Nina Gray, “I revere his innocence and unsophistication.”29

  The wit that crackled through his talk and letters to friends became part of an enduring legend; inevitably, like Mark Twain, Winston Churchill, and Oscar Wilde, many famous quips, old and new, were attributed to him that he almost certainly never said. (Some had been uttered by his father and namesake, also renowned for his wit, and misattributed to the son.)

  A few stories in particular stubbornly refuse to die. “A second-class mind, but a first-class temperament,” his oft-quoted assessment of Franklin D. Roosevelt, holds an indelible place in the FDR literature even if it has no basis in reality.