Introduction

(Twentieth-Century Literary Criticism)

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.