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Oliver Wendell Holmes, Jr.

by Oliver Wendell Holmes Jr.

Oliver Wendell Holmes, Jr. Essay - Critical Essays

Holmes, Oliver Wendell, Jr.

Introduction

Holmes, Oliver Wendell, Jr. 1841-1935

American jurist.

Holmes was one of the most renowned and controversial justices to serve on the United States Supreme Court. Appointed by Theodore Roosevelt in 1902, Holmes took his seat on the bench at a crucial transition point in American judicial history, when questions of the efficacy and applicability of the Constitution arose with the rapidly changing social conditions of the time. Despite his great popularity and influence, Holmes was known as the "Great Dissenter" for his consistent refusal to support the decisions of his fellow justices.

Biographical Information

Holmes was born in 1841 to one of Boston's most prominent families. On both sides of his family, he counted as ancestors such American luminaries as the Puritan poet Anne Bradstreet and the Quincys and Jacksons of early American politics. His grandfather, Abiel Holmes, was an admired Calvinist preacher and writer, and his father, Oliver Wendell Holmes, Sr., was a leading physician as well as an eminent author. Family connections allowed the young Holmes contact with the New England intellectual circle that included the essayist Ralph Waldo Emerson. In 1857 Holmes entered Harvard College, graduating in 1861. When the Civil War broke out, Holmes postponed his planned entrance to Harvard Law School to join the 20th Massachusetts Volunteers, in which he served until 1864. Evidence supports the claim of many biographers that Holmes placed far greater importance on his service in the war than on his academic studies in the shaping of his character; he was wounded three times, and the diary he kept during the war was later published with the title Touched with Fire. Holmes earned his law degree in 1866 and the following year cofounded the firm Shattuck, Holmes and Munroe, where he remained until 1882. During this time, Holmes also edited the United States Law Review and the American Law Review. In 1872 he married Fanny Dixwell, who later figured strongly as "the Mrs." in Holmes's popular public persona. From 1870 to 1882 Holmes was a lecturer and professor at Harvard Law School and the Lowell Institute in Massachusetts. A series of lectures he delivered at the Lowell Institute was published in 1881 as The Common Law, which brought him international renown as a great legal scholar. In 1883 Holmes became an associate justice of the Supreme Judicial Court of Massachusetts; in 1899 he was promoted to chief justice. Two years later President Theodore Roosevelt appointed Holmes to the United States Supreme Court. A vigorous supporter of majority rule and free speech, Holmes used his command of language to pen his famously persuasive dissensions. Influenced personally and professionally by his friends William James and Charles Sanders Peirce, both American philosophers associated with the Pragmatist school, Holmes developed as a judge a keen ability to infuse complicated legalese with common sense and accessibility. He served on the Supreme Court until his retirement at the age of 91; he died in Washington, D.C., three years later.

Major Works

Although he was voted class poet for his graduating class at Harvard, Holmes's writing did not engage public notice until the publication of his lecture series The Common Law in 1881. Therein he delineated the judicial theory that would propel his career for the next fifty years. Holmes posits in The Common Law that it is not logical abstractions upon which judicial practice is based, but varying responses to constantly evolving social issues and problems. Applied throughout his career, this theory was particularly compelling during and after the First World War, when questions of free speech and the place of democratic ideals in the United States and abroad arose with the advent of fascism and communism. Holmes expressed his beliefs regarding free speech most markedly in Schenck vs. U.S. (1919), in which he argued that only speech that represents a "clear and present danger" should meet with legal recourse; otherwise, Holmes wrote in Abrams vs. U.S., a "free trade in ideas" was integral to the flourishing of truth and justice. Legal historians have since noted the later distortion of Holmes's intent in Schenck vs. U.S. by subsequent United States justices. Most notably, the phrase "clear and present danger" was liberally and widely perverted in the Cold War of the 1950s to suit conservative political leanings. Nevertheless, Holmes was known during his lifetime for his support of civil liberties, as voiced in his strong dissent in cases approving the use of wiretapping and the conviction of a conscientious objector. In addition to his legal writings, Holmes wrote essays, letters, "wit and wisdom" works, and speeches, most of which were published after his death. The diary he kept as a young soldier in the Civil War and the letters he wrote during that period were published in 1946 as Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-64.

Critical Reception

Reception of Holmes's body of work has varied widely. Hailed by many as a liberal renegade, relying on American pragmatism and upholding civil liberties with a healthy skepticism, Holmes was nonetheless at times sharply criticized by others as a proto-fascist. H. L. Mencken, in his review of The Dissenting Opinions of Mr. Justice Holmes, found Holmes's dissension amusing, but maintained that the Justice was anything but liberal in his social and political beliefs. Others accused Holmes of undiscriminating and dangerous utilitarianism. Regardless of such censure, Holmes, along with his fellow Justices Louis Brandeis and Roscoe Pound, is remembered for his fairness and integrity as well as for his progressive ideas regarding the application of the principles of the American Constitution to social issues in a turbulent era.

Principal Works

The Common Law (nonfiction) 1881

Speeches by Oliver Wendell Holmes, Junior (speeches) 1891; enlarged edition, 1896-1934

The Soldier's Faith: An Address by Oliver Wendell Holmes (lecture) 1895

Collected Legal Papers (nonfiction) 1920

The Dissenting Opinions of Mr. Justice Holmes (nonfiction) 1929

Representative Opinions of Mr. Justice Holmes (nonfiction) 1931

Justice Holmes to Doctor Wu: An Intimate Correspondence (letters) 1935

Some Table Talk of Mr. Justice Holmes and "the Mrs. " (nonfiction) 1935

The Black Book of Oliver Wendell Holmes (nonfiction) 1936

Justice Oliver Wendell Holmes: His Book Notices and Uncollected Letters and Papers [edited by Harry C. Shriver] (nonfiction, letters, and essays) 1936

The Judicial Opinions of Oliver Wendell Holmes: Constitutional Opinions, Selected Excerpts, and Epigrams (nonfiction) 1940

Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874-1932. 2 vols. (letters) 1941; published as The Pollock Holmes Letters: Correspondence of Sir Frederick Pollock and Mr. Justice Holmes, 1874-1932, 1942

The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions (speeches, essays, letters, and nonfiction) 1943

Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-64 (letters and diary) 1946

Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935. 2 vols. (letters) 1953

The Wit and Wisdom of Oliver Wendell Holmes, Father and Son (nonfiction) 1953

The Holmes Reader: The Life, Writings, Speeches, Constitutional Decisions, etc., of the Late Oliver Wendell Holmes (nonfiction and speeches) 1955

Occasional Speeches (speeches) 1962

The Holmes-Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein, 1903-1935 (letters) 1964

Holmes-Sheehan Letters: The Letters of Justice Oliver Wendell Holmes and Canon Patrick Augustus Sheehan (letters) 1976

Progressive Masks: Letters of Oliver Wendell Holmes, Jr., and Franklin Ford (letters) 1982

The Formative Essays of Justice Holmes: The Making of an American Legal Philosophy (essays) 1984

Criticism

Oliver Wendell Holmes, Jr. (essay date 1896)

SOURCE: "The Path of the Law," in Oliver Wendell Holmes, Jr.,—What Manner of Liberal?, edited by David H. Burton, Robert E. Kreiger Publishing Company, 1979, pp. 21-37.

[In the following essay, originally published in 1896 in the Harvard Law Review, Holmes details his belief that legal considerations should rely on empiricism and reason rather than traditional absolutes.]

When we study law we are not studying a mystery but a well known profession. We are studying what we shall want in order to appear before judges, or to advise people in such a way as to keep them out of court. The reason why it is a profession, why people will pay lawyers to argue for them or...

(The entire section is 9830 words.)

H. L. Mencken (essay date 1930)

SOURCE: "Mr. Justice Holmes," in A Mencken Chrestomathy, edited by H. L. Mencken, Alfred A. Knopf, 1942, pp. 258-65.

[In the following review of The Dissenting Opinions of Mr. Justice Holmes, originally published in the American Mercury in May 1930, Mencken pronounces Holmes's decisions "interesting as literature" because of his "easy-going cynicism, " but argues against the widely-held notion that Holmes was a political liberal defending freedom.]

Mr. Justice Holmes's dissenting opinions [presented in The Dissenting Opinions of Mr. Justice Holmes] have got so much fawning praise from Liberals that it is somewhat surprising to discover that Mr....

(The entire section is 2964 words.)

Felix Frankfurter (essay date 1938)

SOURCE: "Property and Society," in Mr. Justice Holmes and the Supreme Court, Cambridge, Mass.: Harvard University Press, 1938, pp. 13-45.

[In the following essay, Frankfurter discusses Holmes's views on constitutional property rights issues.]

The United States got under way nearly one hundred and fifty years ago, and only seventy-seven men have shaped its destiny, in so far as law has shaped it. To understand what manner of men they were who have sat on the Supreme Bench is vital for an understanding of the Court and its work. Yet how meager is our insight into all but a very few. A lawyer's life before he becomes a judge, like that of an actor, is largely writ in...

(The entire section is 7948 words.)

Daniel J. Boorstin (essay date 1941)

SOURCE: "The Elusiveness of Mr. Justice Holmes," in The New England Quarterly, Vol. XIV, No. 3, September, 1941, pp. 478-87.

[In the following essay, Boorstin examines Holmes's social philosophy outside of the constitutional issues he decided professionally.]

The thought and personality of Mr. Justice Holmes have suffered from affectionate neglect. In proportion to his stature he has received less adequate interpretation than any other American of his generation. He has become the victim of his acolytes, who, in heaping sacrifices at his altar, have obscured the image of their idol. A survey of the literature about the great Justice shows numerous collections of...

(The entire section is 3265 words.)

John A. Garraty (essay date 1949)

SOURCE: "Holmes's Appointment to the U. S. Supreme Court," in The New England Quarterly, Vol. XXII, No. 3, September, 1949, pp. 291-303.

[In the following essay, Garraty traces the personal and political considerations of Holmes's appointment to the Supreme Court.]

Early in July, 1902, Associate Justice Horace Gray, troubled by failing health, responded to the urgings of his family and his physician and wrote a letter to President Theodore Roosevelt. Further service might seriously endanger his health, he told the President, and therefore he must resign immediately or upon the appointment of his successor, whichever the President wished.1

His...

(The entire section is 4379 words.)

Irving Bernstein (essay date 1950)

SOURCE: "The Conservative Mr. Justice Holmes," in The New England Quarterly, Vol. XXIII, No. 4, December, 1950, pp. 435-52.

[In the following essay, Bernstein argues that Holmes's social and political philosophy were not ideologically liberal, but that Holmes was actually a classical conservative.]

A cherished American myth is that Oliver Wendell Holmes, Jr., was a liberal. This notion, as baseless as the tale of Washington and the cherry tree, was born during the great jurist's life and persists in the national folklore since his death. Walton Hamilton wrote in 1941, "It has taken a decade to elevate . . . Holmes from deity to mortality."1 The time has come...

(The entire section is 5616 words.)

Mark DeWolfe Howe (essay date 1951)

SOURCE: "The Positivism of Mr. Justice Holmes," in Harvard Law Review, Vol. 64, No. 4, February, 1951, pp. 530-46.

[In the following essay, Howe examines Holmes's posthumous reputation.]

On the occasion of the ninetieth birthday of Mr. Justice Holmes, his successor on the Supreme Court of the United States said that Holmes was "for all students of the law and for all students of human society the philosopher and the seer, the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages."1 At the conclusion of his essay, Mr. Justice Cardozo quoted from a letter which he had received from Holmes saying that he had always believed...

(The entire section is 7440 words.)

Saul K. Padover (essay date 1960)

SOURCE: "The American as Skeptic: Oliver Wendell Holmes (1841-1935)," in The Genius of America: Men Whose Ideas Shaped Our Civilization, McGraw-Hill Book Company, Inc., 1960, pp. 249-70.

[In the following essay, Padover discusses Holmes's role on the Supreme Court as a pragmatic dissenter.]

When twentieth-century Americans speak of judges, they are likely to think first of Oliver Wendell Holmes. He had the superb qualities that symbolize greatness in a jurist—striving for truth, tolerance of ideas, skepticism in the face of dogma, urbanity of manner, grace of expression, philosophic balance and, in the words of Judge Learned Hand, "above all, humility before the vast...

(The entire section is 9238 words.)

Francis Biddle (essay date 1961)

SOURCE: "The Attacks on Justice Holmes," in Justice Holmes, Natural Law, and the Supreme Court, The Macmillan Company, 1961, pp. 27-49.

[In the following essay, Biddle discusses the reaction of many priests at Jesuit law schools against Holmes after Holmes's letters were published posthumously.]

The attacks on Justice Holmes were stirred into life by the publication of his letters a few years after his death—there was hardly enough in the opinions and speeches to shock the well-bred ear of the average man; and the priests, who wrote most of the criticism, must have spent many hours combing the letters to sustain their view that here was a modern antichrist worthy of...

(The entire section is 7722 words.)

Edmund Wilson (essay date 1962)

SOURCE: "Justice Oliver Wendell Holmes," in Patriotic Gore: Studies in the Literature of the American Civil War, 1962. Reprint by Northeastern University Press, 1984, pp. 743-96.

[In the following essay, Wilson provides a biographical sketch of Holmes.]

With the Oliver Wendell Holmeses, father and son, the theology of Calvinism has faded, but its habits of mind persist. The father of Dr. Holmes was Abiel Holmes, a Connecticut preacher, who came to occupy in Cambridge, Massachusetts, the pulpit of the First Congregational Church. He had been educated at the Yale Divinity School, which at that time stood somewhat to the left of the fundamentalist Princeton Theological...

(The entire section is 18012 words.)

G. Edward White (essay date 1971)

SOURCE: "The Rise and Fall of Justice Holmes," in The University of Chicago Law Review, Vol. 39, No. 1, Fall, 1971, pp. 51-77.

[In the following essay, White follows Holmes's image in America, from his extreme popularity to the later disillusionment about his ideals widely adopted after his death.]

Occasionally the American nation sees itself in the life of one of its citizens. Something about the experiences, background, attitudes, or accomplishments of an individual seems particularly evocative of American culture, or at least a vision thereof. Such a life was that of Justice Oliver Wendell Holmes. In addition to being a man of great popular appeal,1...

(The entire section is 10966 words.)

G. Edward White (essay date 1976)

SOURCE: "The Integrity of Holmes' Jurisprudence," in Intervention and Detachment: Essays in Legal History and Jurisprudence, Oxford University Press, 1994, pp. 75-99.

[In the following essay, White traces the concurrence of the tenures of Justices Holmes and Louis Brandeis with the rise of modern judicial liberalism. ]

A sharp distinction between "nineteenth-century" and "twentieth-century" phases of the American judicial tradition has some artificial features. Older jurisprudential attitudes and theories of judging persisted after 1900; their persistence, in fact, is one of the features of American judicial history in the twentieth century. The striking...

(The entire section is 11523 words.)

Louis Auchincloss (essay date 1979)

SOURCE: "The Long Life and Broad Mind of Mr. Justice Holmes," in Life, Law and Letters: Essays and Sketches, Houghton Mifflin Company, 1979, pp. 1-19.

[In the following essay, Auchincloss provides an overview of Holmes's life and career.]

Few men have seen as much of our history, and from such advantageous viewpoints, as Oliver Wendell Holmes, Jr. As a boy in Massachusetts he met veterans of the Revolution. He went to school in a Boston shaken by abolition. He fought through the Civil War, and it is said to have been his voice that shouted the rough warning to Lincoln when the President exposed his high hat above the ramparts at Fort Stevens. With peace Holmes became a...

(The entire section is 5875 words.)

David H. Burton (essay date 1979)

SOURCE: "Understanding The Common Law," in Oliver Wendell Holmes, Jr.What Manner of Liberal?, edited by David H. Burton, Robert E. Krieger Publishing Company, 1979, pp. 13-20.

[In the following essay, Burton outlines Holmes's major points in The Common Law.]

In the opening sentence of the great book Holmes spoke his objective: "to present a general view of the Common Law." He proposed a methodology: "We must alternately consult history and existing theories of legislation." And finally he stated his purpose: To understand the law, for while today "there are a great many rules which are quite sufficiently accounted for by their manifest good sense, . . . there...

(The entire section is 3599 words.)

David H. Burton (essay date 1980)

SOURCE: "The Shaping of Wendell Holmes," in Oliver Wendell Holmes, Jr., Twayne Publishers, 1980, pp. 13-35.

[In the following essay, Burton recounts major influences on Holmes's thinking and surveys his early writings.]

The law was part of Oliver Wendell Holmes, Jr.'s, natural inheritance. Lawyers had been in the family at least from the time of the sixteenth century—Thomas Holmes of Gray's Inn—and judges, too, a maternal grandfather, Charles Jackson, having been a justice of the Supreme Judicial Court of Massachusetts. For his part, immediately upon completion of Civil War service, Holmes commenced his legal studies at Harvard and for the next seventy years, down...

(The entire section is 9318 words.)

G. Edward White (essay date 1994)

SOURCE: "The Integrity of Holmes' Jurisprudence," in Intervention and Detachment: Essays in Legal History and Jurisprudence, Oxford University Press, 1994, pp. 75-99.

[In the following essay, White addresses apparent contradictions in Holmes's judicial actions and writings.]

Writing about Oliver Wendell Holmes can be likened to playing Hamlet in the theatre: it is a kind of apprenticeship that legal scholars undertake as a way of measuring their fitness to endure the academic travails ahead. Holmes himself engaged in a similar rite of passage when he wrote an essay on Plato as a Harvard undergraduate. Plato's thought, Holmes claimed, "needed a complete remodeling";...

(The entire section is 15918 words.)