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.

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 unknown." There has never been another American judge quite like Holmes, the Boston Brahmin who graced the United States Supreme Court for nearly a third of this century. His impact on America, particularly in the crucial area of judicial thought and posture, has been pervasive and lingering.

Holmes was not merely a justice of the Supreme Court; he was a special kind of justice. His uncommonness derived not from any originality of particular juridical theories or precedent-shattering judicial decisions—he was often a dissenter from the majority on the Court—but from his personality. The Holmes character and style had a distinct flavor, as unique as a work of art. Peculiarly American in one sense—in his pragmatism plus humaneness—he was also exceptional in the American political-democratic tradition. A salty Yankee seasoned in intellectual brine, Holmes was a dedicated skeptic, cheerfully doubting the noblest tenets of his countrymen, and gleefully questioning the most devoutly held certainties of his philosophical friends.

Henry Stimson gives one example, that of Holmes' disagreement with the noted Harvard philosopher Royce (1855-1916): "He talked of his old arguments with Josiah Royce. He laughed and laughed over them. He said that the trouble with Royce was that whenever he, Holmes, got him cornered, he would take refuge in saying, 'Well, I am in the bosom of God'; while Holmes would reply, 'Nonsense, you are just in a rathole that I have cornered you in.'"

As free of cant as his predecessor John Marshall, whom he admired considerably, Holmes was blessed with that rare form of intellectual grace known as wit. In addition, his mind was fortified by a buoyancy positively Voltairean in its irreverence and cultivated by a philosophic curiosity that matched Jefferson's. According to Justice Felix Frankfurter, Holmes reminded judges that "in order to be weighty they need not be heavy." For all his erudition, Holmes was never heavy.

Oliver Wendell Holmes, Jr., was born in Boston on March 8, 1841, the son of a father whose reputation has been eclipsed by the subsequent renown of his son. Like the Adams family, the Holmeses belonged to the New England aristocracy. "All my three names," young Holmes wrote in the Harvard College album of the Class of 1861, "designate families from which I am descended. A longer pedigree of Olivers and Wendells may be found in the book called Memorials of the Dead in Boston." From this line of ancestors, the future justice inherited much of his sturdy independence; from his father came his good humor and the sharpness of his wit. "Two and two," the father wrote in The Poet at the Breakfast-Table, "do not always make four, in the matter of hereditary descent of qualities. Sometimes they make three and sometimes five." It was five in the case of his son.

Oliver Wendell Holmes, Sr. (1809-94) was a celebrated figure whose rationalism and humor are reminiscent of another native Bostonian, Benjamin Franklin. The senior Holmes was a physician by profession and a writer by avocation. Professor in (and dean of) the Harvard Medical School, Dr. Holmes was the author of popular verse, psychological novels, and amusing books, the best known of which were the Breakfast-Table series (The Autocrat of the Breakfast-Table, 1858; The Professor at the Breakfast-Table, 1860). The witty professor did not spare even the profession of medicine, to which he contributed learned articles. "I firmly believe," he said in an address to the Massachusetts Medical Society, "that if the whole materia medica as now used could be sunk to the bottom of the sea, it would be all the better for mankind—and all the worse for the fishes."

The cheerful irreverence and raillery of the father seeped into the thought of the son. The wry humor and skepticism of Holmes the physician is echoed in the judge. "Of course everybody likes and respects self-made men," the senior Holmes wrote in The Autocrat at the Breakfast-Table. "It is a great deal better to be made in that way than not to be made at all." There is an echo of this in Justice Holmes' dissenting opinion in the Northern Securities Company case. In Holmes, Sr.'s Pages from an Old Volume of Life we have in a nutshell the son's basic aproach to the philosophy of the law: "Of relative justice law may know something; of expediency it knows much; with absolute justice it does not concern itself."

Next to heredity and the immediate environment—"We are all tattooed in our cradles with the beliefs of our tribe; the record may seem superficial, but it is indelible," his father wrote—the most enduring influence on the younger Holmes' life was the Civil War. At its outbreak, when President Lincoln called for 75,000 volunteers, the twenty-year-old Harvard senior enlisted in the infantry. Characteristically, "he was walking down Beacon Hill with Hobbes' Leviathan in his hand," according to a contemporary, when he was informed that he had been commissioned a first lieutenant.

As an officer in the Twentieth Massachusetts Volunteers, young Holmes saw some of the bloodiest fighting of the war. He was wounded three times, twice severely and once almost mortally. At the Battle of Ball's Bluff (October 1861), Lieutenant Holmes was shot in the chest. He reports in his crisp diary: "I was hit at 41/2 PM. . . . I felt as if a horse had kicked me and went over—1st Sergt Smith grabbed me and lugged me to the rear a little way & opened my shirt and . . . the two holes in my breast & the bullet. . . ." Years later he told a friend ironically, "When I was dying after Ball's Bluff, I remembered my father's saying that death-bed repentances generally meant only that the man was scared." After recovery, he returned to the front as a captain. During the Battle of Antietam (September 1862), he was shot in the neck. He wrote home the next day:

My Dear Parents . . . Usual luck—ball entered at the rear passing straight through the Central seam of Coat & waistcoat collar coming out towa [rd] the front on the left hand side—yet it don't seem to have smashed my spine or I suppose I should be dead, or paralyzed or something—It's more than 24 h'rs & I have remained pretty cocky, only of course feverish at times. . . . [His father diagnosed the wound: "Through the neck,—no bullet left in wound. Windpipe, food-pipe, carotid, jugular, half a dozen smaller, but still formidable vessels, a great braid of nerves, each as big as a lamp-wick, spinal cord—ought to kill at once, if at all. Thought not mortal, or not thought mortal—which was it?"]

In "My Hunt After the Captain," published in the Atlantic Monthly in December 1862, Dr. Holmes told movingly how he had sought his "first-born" through many towns in Maryland and on the road to Philadelphia. He finally found him being fussed over by adoring ladies in the home of Mrs. Howard Kennedy in Hagerstown, twelve miles from Antietam. After a long convalescence, Holmes returned to duty, fought again in Maryland and at the Battle of Fredericksburg (May 1863), was once again wounded, this time by a piece of shrapnel that shattered his heel. He was finally mustered out of service on July 17, 1864, with the rank of lieutenant colonel.

Holmes never forgot the Civil War; it left an indelible imprint on his soul. Many decades later he wrote in a letter to Sir Frederick Pollock in 1920, "I loathe war—which I described when at home with a wound in our Civil War as an organized bore—to the scandal of the young women of the day, who thought that Captain Holmes was wanting in patriotism."

The Civil War battles, some of the most sanguinary in history up to that time, matured him as a man, steeled his character, and deepened his insight into the fragility of human existence: "As long as man dwells upon the globe, his destiny is battle, and he has to take the chances of war." He lost forever the easy optimism of his countrymen. To have proved himself in battle—in a war that tried the souls of men and tested the nation's existence—was to have undergone an experience which, Holmes said, was "incommunicable." Only battle-tested veterans, men who knew what it was to fear for life, what it meant to see their own bodies bleeding and their comrades torn to pieces could understand the searing experience of war. Matchless, enduring, and elevating, the experience set him and his generation apart from their fellows. This is how Holmes put it, in a Memorial Day address to the veterans of the Grand Army of the Republic at Keene, New Hampshire, in 1884, in almost mystic tones:

Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing. While we are permitted to scorn nothing but indifference, and do not pretend to undervalue the worldly rewards of ambition, we have seen with our own eyes beyond and above the gold fields the snowy heights of honor, and it is for us to bear the report to those who come after us. . . . Our dead brothers still live for us, and bid us think of life, not death—of life to which in their youth they lent the passion and glory of the spring. As I listen, the great chorus of life and joy begins again, and . . . our trumpets sound once more a note of daring, hope, and will.

In the autumn of 1864, Lieutenant Colonel Holmes entered Harvard Law School, after considering and rejecting other possible careers, among them art and writing. There he formed a close friendship with William James, and they engaged in continuing philosophical arguments. But Holmes did not let philosophical speculation, in which he was to have a lifelong interest, interfere with his chosen profession. Even after graduation in January 1866 and admission to the bar the following year, he devoted himself to the technical study of the law with an absorption that baffled his friends. "For two or three months," Holmes wrote to "Dear Bill" James in December 1867, "I debauched o' nights in philosophy. But now it is law—law—law. My magnum opus was reading the Critique of Pure Reason." The next April he again wrote to James:

Since I wrote in December I have worked at nothing but the law. Philosophy has hibernated in torpid slumber, and I have lain "sluttishly soaking and gurgling in the devil's pickle," as Carlyle says. It has been necessary—if a man chooses a profession he cannot forever content himself in picking out the plums with fastidious dilettantism and give the rest of the loaf to the poor, but must eat his way manfully through crust and crumb—soft, unpleasant, inner parts which, within one, swell, causing discomfort in the bowels.

Such concentration unavoidably assured Holmes' career. He had the qualities needed for success. Handsome, elegant, brilliant, hard-working, ambitious, he was bound to rise to eminence. The speculative William James, observing his friend's single-minded pursuit of his legal career, remarked perceptively that "my Wendly boy" was "composed of at least two and a half different people. . . ." One was a philosopher, and the other a somewhat cynical and hard-minded lawyer bent on success. On the Supreme Court, Holmes was to show these distinct parts of his character on more than one occasion.

Success came with fair rapidity. At thirty he became lecturer on constitutional law at Harvard and editor of the American Law Journal. Three years later he edited and annotated the twelfth edition of Chancellor Kent's Commentaries on American Law, a four-volume work that was then the bible of American lawyers. In 1881, Holmes published The Common Law, consisting of the Lowell Lectures he had delivered the previous year and which became a landmark in the realistic study of American jurisprudence. It made his reputation as a jurist. His fame was now such that in 1882, at the age of forty-one, he was offered a professorship at Harvard and an appointment to the Judicial Supreme Court of Massachusetts. Holmes accepted the judgeship. "To think of it," his sprightly seventy-three-year-old father said with delight, "—my little boy a Judge and able to send me to jail if I don't behave myself."

In 1902, after Holmes had served on the Massachusetts bench for nearly twenty years (the last three as chief justice), Theodore Roosevelt appointed him to the United States Supreme Court. President Roosevelt knew Holmes' reputation as a legal scholar and admired him as a Civil War hero, but he first wanted to make sure that the Boston Brahmin judge was a liberal like himself, a man in "entire sympathy with our views." After the two Massachusetts senators, Henry Cabot Lodge and George F. Hoar, presumably reassured the President of the acceptability of Holmes' views, the appointment was confirmed by the Senate, in December 1902. Roosevelt, expecting in Holmes a pliable judge, was soon to be angrily disappointed.

For the white-haired Holmes, lean, erect, and sparkling at sixty-one, the appointment to the Supreme Court was the beginning of a great new career. He was to remain on the supreme bench, its ornament and its legend, through half a dozen presidential administrations until he resigned, still hale and racy, at ninety. By an historic coincidence, the humor of which would have delighted Holmes, the last case he heard on the Supreme Court was the first for a lawyer who was destined to become its chief justice within a quarter of a century. As Earl Warren relates the incident, he argued his first case before the Supreme Court on a Friday in June 1930; the next Monday Justice Holmes announced simply: "I won't be there tomorrow," and never returned to the Court. Chief Justice Warren, telling the incident, remarked that his friends have accused him of driving Holmes from the Supreme Court: "One look at you and he said I quit.'" Holmes died in 1935, ninety-four years old.

What Holmes had brought to the Supreme Court was not only a finely tempered and keenly cultivated mind but, more important, a special point of view, a philosophy of life and society that was not swayed by the winds of temporary doctrine or transient opinion. In a deeper sense, Holmes the Supreme Court justice, although called upon to deal with crucial questions of practical life, was above the battle in that he refused to become emotionally involved in the political currents or commitments of the moment, whether liberal, reformist, pacifist, or Socialist. Actually, he was not particularly interested in such currents. "As you know," he wrote to Harold Laski, "I am not much on politics." Not subject to what he called the "hydraulic pressure" of public opinion, Holmes occasionally surprised or shocked his liberal friends with judicial decisions that ran counter to prevailing emotions. Thus, taking a common-law position in defense of property, he dissented from the majority in the trustbusting Northern Securities Company case in 1904. And he again offended liberal opinion when he concurred, on the implied ground of national defense, with the majority in the sentencing of a Socialist leader in the free-speech case of Eugene V. Debs.

This case involved Eugene Victor Debs (1855-1926), founder of the American Socialist Party and its five-time presidential candidate. Under his leadership, the Socialist Party, which increased its presidential vote from about 97,000 in 1900 to nearly one million in 1920, dropped its Marxist phraseology but retained its Marxist ideology. Its 1912 platform, for example, blamed the capitalist system for nearly all the ills that afflict mankind, including armaments, crime, slums, child labor, insanity, and prostitution. Tried in Federal Court for advocating pacifism in World War I, Debs addressed the judge in September 1918, with brave eloquence before receiving sentence.

The case reached the Supreme Court on appeal, and Holmes, in Debs v. U.S. (1919), wrote the unanimous opinion of the Court upholding the sentence. He was not, of course, against free speech or against Debs as a socialist, although he despised both Debs and socialism. "I wonder," he wrote to Laski in April, "if Debs really has any ideas. What I have read of his discourse has seemed to me rather silly—and what he said about the judgment against him showed great ignorance." But, in a technical sense, Debs did violate the law, as Holmes wrote to Sir Frederick Pollock: "There was no doubt that the Jury was warranted in finding him [Debs] guilty or that the act [Espionage Act of 1917] was Constitutional. Now I hope the President will pardon him and some other poor devils with whom I have more sympathy." Holmes was unhappy about the whole thing. "I hated to have to write the Debs case," he admitted in a private letter to Herbert Croly in May, "and still more those of the other poor devils before us the same day and the week before. I could not see the wisdom of pressing the cases, especially when the fighting was over and I think it quite possible that if I had been on the jury I should have been for acquittal but I cannot doubt that there was evidence warranting a conviction on the disputed issues of fact." President Wilson refused to pardon Debs, but President Warren G. Harding did so in 1921.

To American liberals, those who most warmly admired Holmes, he was a baffling phenomenon. They expected him to pursue a consistently liberal line on the bench, but he eluded their pattern. His conception of the function of a judge was not theirs. John Dewey suggested that, if liberalism meant faith in human intelligence and respect for ideas as the supreme force in the solution of social problems, then Holmes was a liberal. If it meant an acceptance of prevailing doctrines of political reform just because they were regarded desirable or noble at any given moment in history, then he was hardly one. In truth, Holmes was a conservative much of the time and a pragmatist all the time. As Dewey said: "He has no social panacea to dole out, no fixed social program, no code of fixed ends to be realized." What Holmes was guided by was not tailored doctrine but skeptical philosophy and the experience of life.

There was a duality in Holmes as a judge. On the one hand he was a disciplined jurist bound by a profound respect for the law as it existed; on the other, he was a philosopher who viewed the human condition from the vantage point of universality. On one level, the law was a hard taskmaster, holding society together in an orderly framework of daily exigencies. On another level, the law, being pragmatic, local, and subject to amendment and alteration, had no cosmic significance. To a philosopher, no man-made statute really mattered much in the long view of history. This cosmic awareness tinctured Holmes' thinking and provided him with a pervasive skepticism—and humility—in areas that many men, including judges, considered certainties. Speaking before the Harvard Law School Association in New York in 1913, Holmes enunciated his judicial philosophy with almost Olympian detachment:

I have no belief in panaceas and almost none in sudden ruin. I believe with Montesquieu that if the chance of a battle—I might add, the passage of a law—has ruined a state, there was a general cause at work that made the state ready to perish by a . . . battle or a law. Hence I am not much interested one way or the other in the nostrums now so strenuously urged. I do not think the United States would come to an end if we lost our power to declare an Act of Congress void. . . . I do not pin my dreams for the future to my country or even to my race. I think it probable that civilization somehow will last as long as I care to look ahead—. . . perhaps also bred to greatness and splendor by science. I think it not improbable that man . . . may have cosmic destinies that he does not understand.

In Holmes' philosophy there was a kind of suspension of philosophy, at least of the traditional variety. Systematic philosophers, who seemed to know the answers to the most thorny problems of man and the universe, left him unconvinced. He was equally skeptical of moralists—"I naturally shrink from the moral tone," he wrote to Laski—and critical of dogmatists. He felt that none of the claimants to certainty really knew enough to substantiate their sweeping assertions about truth and the human condition. Large generalizations, including judicial decisions, were merely expressions of the "longing for certainty" to be found "in every human mind." But, he said, "certainty generally is illusion, and repose is not the destiny of man." Objecting to what he called "delusive exactness," Holmes insisted on intellectual humility and suspension of judgment in the presence of the unknown. "I think none of the philosophers sufficiently humble," he told William James in a letter in which he made some critical remarks on James' Pragmatism. And he wrote to Laski, "Why should we not be humble—why not willing to admit that the primordial wiggle of the first churning of chaos came before our time?"

The only thing that was meaningful, Holmes reiterated in his writings and speeches, was life itself—the plain, unvarnished reality of daily existence, with its joys and conflicts. The dynamism of human life was its own justification; it could not fit into preconceived theories. "From the point of view of the world," he said to the Boston Bar Association in March 1900, "the end of life is life. Life is action, the use of one's powers. . . . Life is an end in itself, and the only question as to whether it is worth living is whether you have enough of it." Holmes used a similar expression some eighteen years later in a letter to Sir Frederick Pollock: " . . . Realize life as an end in itself. Functioning is all there is—only our keenest pleasure is in what we call the higher sort. I wonder if cosmically an idea is any more important than the bowels."

In a private letter to a friend, William James complained that Holmes' philosophy was "immature" and "unworthy" of a judge: "It is curiously childish to me." But to Holmes it was mature. Faith in life as a continuing struggle and experimentation was at the base of his approach to law. Nothing in human affairs, he held, was either sacrosanct or permanently fixed. Everything, including the federal Constitution, which Holmes had sworn to uphold, was flexible and subject to change. "The Constitution," he said in a famous statement, which echoed that of Jefferson a century earlier, "is an experiment, as all life is an experiment."

Holmes was one of the pioneers in the pragmatic study of jurisprudence. Even before Charles Sanders Peirce, William James and John Dewey developed the theories of pragmatism and revolutionized social thought in America, Holmes analyzed the law, not as an immutable system, but as an experimental process. In The Common Law he challenged the prevailing theories of natural law—which assumed absolute doctrines of eternal (unchanging) truths—with his assertion that the "life of the law has not been logic: it has been experience." Law, he went on to explain, was the product of time and experience, rather than handed-down dogma:

The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

Law, to Holmes, was not an ought but an is. Personal preferences or pet legal theories had little to do with the hard reality of law as it existed at any given time. Law was subject to alteration by orderly processes as a result of "felt necessities," but while on the statute books and backed by the sovereignty of government, it remained a brute fact of life. "When I talk of law," Holmes wrote to Laski in 1917, "I talk as a cynic. I don't care a damn if twenty professors tell me a decision is not law if I know that the courts will enforce it." The old veteran of the Civil War had no illusions about the sacredness of human life vis-à-vis the needs of government. Holmes frankly and cheerfully accepted the idea of the use of force as a social and political necessity—whenever the occasion arose. Every society, he said, "rests on the death of men." Government does not hesitate to kill "when it sees fit and can."

"I think that the sacredness of human life," Holmes wrote to Pollock (in 1920), "is a purely municipal ideal of no validity outside the jurisdiction. I believe that force, mitigated so far as may be by good manners, is the ultima ratio, and between two groups that want to make inconsistent kinds of worlds I see no remedy except force."

Like Dewey, Holmes took a relativist position on moral values and judgments. Consistent with his rejection of natural law, he asserted the idea that truth in human relations was subject to changing conditions as seen and experienced by individuals. As such, its validity was personal instead of cosmic. To William James, of whose metaphysical theories he was dubious, he wrote in 1907: "I have been in the habit of saying that all I mean by truth is what I can't help thinking. The assumption of the validity of the thinking process seems to mean no more than that. . . . I have learned to surmise that my can't helps are not necessarily cosmic can't helps—that the universe may not be subject to my limitations; and philosophy generally seems to me to sin through arrogance. It is like the old knight-errants who proposed to knock your head off if you didn't admit that their girl was not only a nice girl but the most beautiful and best of all possible girls. I can't help preferring champagne to ditch water.—I doubt if the universe does."

Holmes developed his relativistic position concerning truth and values more fully in "Natural Law," an article published in the November 1918 Harvard Law Review. It is interesting, as Professor Arnold Brecht has pointed out in his comprehensive work, Political Theory (1959), that Holmes' relativism was close to that of pre-World War I German jurists and sociologists, whose writings the Justice "did not seem to know." (The essence of the relativist argument was that truth and value judgments, matters of personal preference, were not subject to scientific proof.)

Holmes felt that one man's choice of values was as good as another's—an opinion, Professor Brecht reminds us, almost identical with that expressed by Max Weber in his epochal 1904 article, "'Objectivity' in Social Scientific and Social Political Knowledge." An individual may strongly assert his preferences and even fight for them, but he cannot prove them by reason or theorize them into universality. "I don't talk much of rights," Holmes said, "as I see no meaning in the rights of man except what the crowd will fight for."

Holmes' article in the Harvard Law Review is couched in terms more personal than is the wont of theoretical philosophers. It contains the quintessence of his relativistic and skeptical attitude toward both life and law:

There is in all men a demand for the superlative, so much so that the poor devil who has no other way of reaching it attains it by getting drunk . . . this demand is at the bottom of the philosopher's effort to prove that truth is absolute and of the jurist's search for criteria of universal validity which he collects under the head of natural laws. . . . Certitude is not the test of certainty. . . . I love granite rocks and bayberry bushes, no doubt because with them were my earliest joys. . . others, poor souls, may be equally dogmatic about something else. . . . The jurists who believe in natural law seem to me to be in that naive state of mind that accepts what has been familiar . . . as something that must be accepted by all men everywhere . . . a right is only the hypostasis of a prophecy . . . behind these legal rights is the fighting will . . . to maintain them . . . ; but that does not seem to me the same thing as the supposed a priori discernment of a duty or the assertion of a pre-existing right. A dog will fight for his bone.

Skepticism in the face of dogmas and relativism in regard to values underlay Holmes' legal thinking and help explain his role as the "Great Dissenter" on the Supreme Court. His dissents—in which Justice Louis D. Brandeis usually joined after his appointment to the Court in 1916—became celebrated for the independent position they embodied and for the matchless style in which they were couched.

Although Louis Dembitz Brandeis (1856-1941) is coupled with Holmes as a Great Dissenter, the two men were not intimate and did not altogether share the same philosophic outlook. Both were men of large liberal spirit, particularly in the field of free speech, but of widely different temperaments. Holmes' predilection was for legal and philosophical reasoning; Brandeis' propensity was for economic data. Holmes built his cases like a worldly philosopher; Brandeis constructed his like an academic social scientist. Holmes was an amused and amusing skeptic; Brandeis was a dead-serious believer in reform. "I'm afraid Brandeis has the crusading spirit," Holmes once said with ironic affection. "He talks like one of those upward-and-onward fellows."

It was that crusading spirit that had caused such a storm of opposition when President Wilson appointed Brandeis to the Supreme Court in January 1916. The most powerful conservatives of the day, among them seven former presidents of the American Bar Association (including William Howard Taft, Joseph H. Choate, and Elihu Root), opposed the nomination and attacked Brandeis' public as well as private life. "The propaganda in this matter," President Wilson wrote, "has been very extraordinary and very distressing to those who love fairness and value the dignity of the great professions." The opposition to Brandeis, partly motivated by anti-Semitism, was mainly due to his reputation as a liberal who had for years fought stubbornly for social justice and economic equality. Brandeis considered big business monopolies the greatest single danger to American democracy. He advocated government regulation of unrestrained economic bigness, protection of small business, freedom of labor to organize, and other social reforms, such as pensions, sick benefits, and unemployment insurance. He may justly be regarded as the father of the New Deal (of which he did not always approve, primarily because its governmental powers were becoming "too big").

To the advocacy of his social-economic reform program, in writings, speeches, and testimony before Congress, Brandeis brought a mastery of economic detail and a knowledge of the total national economy that was unprecedented, especially in a lawyer and judge. He had the rare gift of marshalling his ideas with a precision of language and (in the words of Charles A. Beard) "a display of stubborn and irreducible facts knit closely together" that was overwhelming in its impact. Before his appointment to the Court he had given freely of his time in the service of causes which he considered just and democratic.

"Some men," Brandeis said in 1911, "buy diamonds and rare works of art; others delight in automobiles and yachts. My luxury is to invest my surplus effort, beyond that required for the proper support of my family, to the pleasure of taking up a problem and solving, or helping to solve, it for the people without receiving any compensation. Your yachtsman or automobilist would lose much of his enjoyment if he were obliged to do for pay what he is doing for the love of the thing itself. So I should lose much of my satisfaction if I were paid in connection with public services of this kind. I have only one life, and it is short enough. Why waste it on things I don't want most? I don't want money or property most. I want to be free."

Brandeis' idealism and his known mastery of the complex data of modern life were the reason the equally reform-minded Woodrow Wilson selected him for the Supreme Court.

On the Court, Justice Brandeis' liberal position remained unchanged. In the fields of civil liberties and economic justice his judicial opinions were so unswerving that one prominent educator likened him to Lincoln. "You two," Alvin Johnson wrote to Brandeis (November 1936), "seem to me the two most serenely implacable democrats in all history."

Brandeis upheld his social philosophy either in separate opinions or in concurrence with Holmes' dissents. The two justices continued to respect one another. "I don't see much of him," Holmes wrote to Laski in 1920, "except in Court but he is a great comfort to me." And again the next month: ". . . and that makes me think of Disraeli and the affection that he inspired, and that makes me ask whether loveableness is a characteristic of the better class of Jews. When I think how many of the younger men that have warmed my heart have been Jews I cannot but suspect it. . . . Brandeis, whom many dislike, seems to me to have this quality and always gives me a glow, even though I am not sure that he wouldn't burn me at a slow fire if it were in the interest of some very possibly disinterested aim. I don't for a moment doubt that for daily purposes he feels to me as a friend—as certainly I do to him."

Holmes did not, of course, always dissent, nor did he always agree with the liberal Brandeis. Much of the time, in fact, Holmes agreed with his "brethren" on the bench, the majority of whom were conservative in their economic outlook. He shared his fellow justices' antipathy for economic radicalism, but on grounds more sophisticated than theirs. He considered radical theorists and socialists fools or worse; they were "shriekers," whose proclaimed passion for economic equality, he said, was "merely idealizing envy." They simply had no grasp of the facts and meaning of life. The advocacy of "wholesale social regeneration" through "socialized property," Holmes wrote in the Illinois Law Review in 1915, was an "empty humbug." It ignored human beings as individuals with their immense range of talents, efforts and aspirations. "I never read a socialist yet from Karl Marx down," Holmes told Harold Laski, "and I have read a number, that I didn't think talked drool."

Holmes felt equal disdain for such American radicals as Henry George, Thorstein Veblen, and Eugene Debs. He disliked theories and legislative acts based upon them that involved the dangerous business of what he said was "tinkering with the institution of property." It is not too surprising, therefore, that he concurred with the conservative majority in about three fourths of the cases in which the Supreme Court held state legislation contrary to the Fourteenth Amendment.

The key words in the Fourteenth Amendment (1868), under which much state legislation in the economic sphere after the Civil War was challenged in the courts, were:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law.

The amendment was originally designed to provide protection for the civic rights of the newly enfranchised Negroes, but the due process clause was used increasingly by the federal courts to strike down social-economic legislation that was distasteful to conservative property interests—and that had nothing to do with the rights of Negroes.

In some cases, Holmes wrote the majority opinion for the Court. But his dissents, qualifying him for the exclusive title of the Great Dissenter, were Olympian in their disregard for precedent.

There were two general areas in which his dissents were conspicuous. One was his blunt rejection of dogmatic interpretations of the federal Constitution. The other was his approach to the problem of free speech.

Although he shared his colleagues' aversion for radicals and radical legislation, he did not accept the dogmatic economic and legal theories they used to justify their decisions. His rejection of dogmatism in Supreme Court rulings—in itself a major service in the cause of openmindedness—is best seen in three important cases, those of Lochner v. New York (1905),Truax v. Corrigan (1921), and Tyson Bros. v. Banton (1927).

The Lochner case was of special significance because it was one of the first to deal with social legislation in the field of labor protection. It involved a New York state law limiting the hours of labor in bakeries to ten a day and a maximum of sixty a week. The act was passed under the general "police powers" of the state and was designed to protect the health of the bakers. Challenged as a violation of "liberty of contract" under the Fourteenth Amendment, the Supreme Court upheld the challenge by a vote of five to four, and declared the law invalid. The majority opinion, written by Justice Rufus W. Peckham, went beyond the immediate act and stated sweeping political-economic principles that all but destroyed the power of any states to legislate in the welfare field. "The act," Justice Peckham wrote, "is . . . an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best."

In addition to that of Holmes, there was a dissenting opinion written by Justice John M. Harlan in which Justices Edward D. White and William Rufus Day concurred.

But Holmes' dissent became a landmark in sociological jurisprudence, in what Roscoe Pound has described as the pragmatic movement in the law that aimed at "putting the human factor in the central place." Holmes started out with a blunt rejection of Peckham's underlying assumptions. "This case," he wrote, "is decided upon an economic theory which a large part of the country does not entertain." Whether a judge personally liked a law or not, it was not his business to deny the "right of a majority to embody their opinions in law." The statute books were full of laws (many of them upheld in previous Supreme Court decisions) that were unwise or tyrannical—Sunday laws, lottery laws, school laws, tax laws—and yet within the right of the citizens to enact them. The New York state act regarding the bakers was in the same category. It was now being declared invalid, Holmes suggested, not because it violated the Fourteenth Amendment—it had nothing to do with that Amendment—but because it did not fit into the preconceived economic doctrines of the judges. "The Fourteenth Amendment," Holmes wrote in a passage that was to echo through the decades, "does not enact Mr. Herbert Spencer's Social Statics" (a teleological work, published in 1850, which contained the usual Spencerian generalizations unblemished by empirical data). The smuggling of dogmatic doctrines into the Constitution to justify the judges' economic bias was, in Holmes' view, bad law and bad policy.

"But a constitution," he continued, "is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States."

He took a similar position in Truax v. Corrigan, which involved labor, and in Tyson Bros. v. Banton, which concerned theater tickets. In both instances, Holmes rejected a priori theories and upheld the right of the states to legislate without hindrance by the Supreme Court. In Truax v. Corrigan, the Court invalidated an Arizona statute which provided that no injunctions could be issued against peaceful picketing. Chief Justice William Howard Taft, in a fiveto-four decision, held that the Arizona act was unlawful in that picketing, being inherently an attack on property, violated the due process clause of the Fourteenth Amendment.

In his majority decision, Justice Taft wrote that picketing was "a direct invasion of the ordinary business and property rights" and that such experimentation as was involved in the Arizona law was unlawful: "The Constitution was intended . . . to prevent experimentation with the fundamental rights of the individual." Professor Felix Frankfurter, a future justice of the Supreme Court, commented in The New Republic (1921) that the decision ignored American economic realities: "For all the regard that the Chief Justice of the United States pays to the facts of industrial life, he might as well have written this opinion as Chief Justice of the Fiji Islands."

Holmes dissented. He protested, with a touch of irony, against the dangers of "delusive exactness in the application of the Fourteenth Amendment" (by which the judges confused picketing, as a potential threat to business, with established property rights) and insisted that legislatures had a right to pass laws to remedy or redress evils. "Legislation may begin where an evil begins." He reiterated that it was not the Supreme Court's business to interfere with legislation on the ground that it did not coincide with the judges' economic theories:

I must add one general consideration. There is nothing I more deprecate than the use of the Fourteenth Amendment beyond the absolute compulsion of its words to prevent the making of social experiments that an important part of the community desires, in the insulated chambers afforded by the several States, even though the experiments may seem futile or even noxious to me and to those whose judgment I most respect.

Similarly, in the Tyson case, in which the Supreme Court held that a New York state law setting a 50-cent limit on the mark-up of theater tickets was unconstitutional—taking away the rights of property without due process—Holmes dissented and repeated his belief that the powers of the legislature must not be curbed to fit the bias of the judges:

I think the proper course is to recognize that a State legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. . . . I am far from saying that I think that this particular law a wise and rational provision. That is not my affair. But if the people of the State of New York speaking by their authorized voice say that they want it, I see nothing in the Constitution of the United States to prevent their having their will.

In his dissents connected with the free-speech cases, Holmes was equally outspoken. Here he not only challenged the prevailing passions of intolerance—generated by World War I—but explored the difficult concepts and practices of free speech on a philosophical level reminiscent of Jefferson. Among the most important cases in which Holmes expressed his dissenting opinions were: Abrams v. U.S. (1919), Gitlow v. N.Y. (1925), U.S. v. Schwimmer (1928), and Olmstead v. U.S. (1928). These cases dealt with what he called the "free trade in ideas."

But here again his position was not an absolute one. Even in this crucial area of intellectual freedom, Holmes did not always dissent. As in other instances involving social legislation, so also in matters affecting freedom of speech he sometimes sided with the majority. This was particularly true in cases involving the national security, where the Civil War veteran took a high patriotic position. In such notable cases as Schenck v. U.S. (1919) and, as noted, Debs v. U.S., both upholding limitations on freedom of speech in wartime, Holmes not only concurred with the majority but wrote the opinion for the Court.

The Schenck case concerned the general secretary of the Socialist Party, who was jailed under the Espionage Act of 1917 for sending through the mails, particularly to the armed forces, pacifist leaflets. The Supreme Court upheld the conviction. In handing down the opinion, Holmes formulated the famous "clear and present danger" doctrine as a test of free speech. He took the position that freedom of speech was not an absolute value, good at all times and at all places, but a relative one. His argument in Schenck v. U.S. was that speech was not being prohibited because the ideas involved were inherently undesirable, but because under certain circumstances—opposing recruitment and spreading demoralization among the troops in wartime, for example—words could endanger the war effort. What Holmes was saying in effect was that Schenck and other defendants similarly situated should remain in jail, not because they advocated pacifism and socialism but because they did so at the wrong time. "When a nation is at war many things that might be said in time of peace are such a hindrance to its effort that their utterance will not be endured so long as men fight." In other words, the test of freedom of speech was not its substance but its circumstance. He wrote in the Schenck case:

We admit that in many places and in ordinary times the defendants in saying all that was said in the circular would have been within their constitutional rights [under the First Amendment]. But the character of every act depends upon the circumstances in which it is done. . . . The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic. . . . The question in every case is whether the words used are used in such circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

To a philosopher like Holmes, it must have been evident that the "clear and present danger" doctrine that justified limitation on freedom of speech was neither clear nor adequate. It could serve a momentary purpose, under pressures of war, but it was not sufficient to stand by itself as a doctrine governing man's rights and responsibilities in a free society. Moreover, the "clear and present danger" argument came perilously close to agreeing with the ultraconservatives and antidemocrats who have always held that freedom of speech was all right in its way, but not in a crisis. This was a manifest absurdity, and it would be surprising if Holmes was not troubled by it. For if freedom of speech had any meaning at all, it meant freedom to speak when it was unpopular to do so, precisely because it was unpopular. Obviously there is no problem when everybody agrees with everybody. Holmes himself said in the Schwimmer case (1928) that the principle of free thought meant "not free thought for those who agree with us but freedom for the thought that we hate."

It was this principle that Holmes developed in Abrams v. U.S. (1919), which followed hard on that of Schenck, and subsequent free-speech cases. His dissent in the Abrams case sounded as if he regretted his decision in Schenck; it was a complete reversal of his position. Just as he agreed with the majority that Schenck was guilty of distributing leaflets, so he disagreed with his colleagues that Abrams was guilty for doing almost precisely the same thing at approximately the same time. Jacob Abrams had thrown down from a loft in New York City leaflets urging that workers refuse to produce arms that were to be used for intervention in the Russian Revolution. Under the Espionage Act this was considered an "intent" to curtail or cripple the prosecution of the war, and Abrams was sentenced to twenty years in prison. The Supreme Court, with Justices Holmes and Brandeis dissenting, upheld the conviction. Technically, Holmes' dissent revolved around the meaning of the word intent. He did not regard Abrams' intent incitement enough to cause a direct limitation of war production. "Nobody can suppose," Holmes wrote, "that the surreptitious publishing of a silly leaflet by an unknown man . . . would present an immediate danger that its opinions would hinder the success of the government arms."

But Holmes went beyond the technicalities. He took the opportunity to explore the inner meaning of free speech, especially in a crisis, something he had failed to do in the Schenck case. Apart from intent, what was the real question in the Abrams case? It was, Holmes asserted, the right under the Constitution to express ideas and beliefs, no matter how silly, provided they were honestly held. He considered Abrams' socialist faith a "creed of ignorance and immaturity," but this was no excuse whatever for the government to punish him for his opinions. Like Voltaire and Jefferson before him, Holmes now elucidated the principles of free opinion in timeless terms. He rooted them in the Constitution as being integral to its whole spirit. The words, in the Abrams case, stand as a monument to intellectual freedom:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe . . . that the ultimate good desired is better reached by free trade in ideas,—that the best test of truth is the power of the thought to get itself accepted in the competition of the market. . . . That, at any rate, is the theory of our Constitution. It is an experiment as all life is an experiment. . . . While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death.

Note the similarity to Jefferson. In his Notes on the State of Virginia (1785) Jefferson had written: "Reason and free inquiry are the only effectual agents against error. . . . They are the natural enemies of error, and of error only. . . . It is error alone which needs the support of government. Truth can stand by itself."

Holmes concluded this dissenting opinion by saying that he regretted he could not "put into more impressive words" this belief that in their conviction . . . the defendants [in the Abrams case] were deprived of their rights under the Constitution of the United States."

In the Gitlow and Schwimmer cases, Holmes continued and elaborated his reasoned defense of free expression. Benjamin Gitlow was convicted for publishing a revolutionary pamphlet. The Supreme Court upheld the sentence mainly on the ground that the Marxist pamphlet was a "direct incitement" to revolution. Holmes pointed out that his Schenck case criterion of "clear and present danger" did not apply to Gitlow, that the defendant's "redundant discourse" had little chance of starting a radical conflagration, and that there was no current danger of an attempt to overthrow the government by a small minority like that. In the absence of any such peril to the nation, Holmes could see no justification for punishing Gitlow for his opinions. Under the Constitution and in the free market place of ideas, Gitlow had a right to offer his opinions, even though they were inflammatory:

It is said that this manifesto was more than a theory, that it was an incitement. Every idea is an incitement. It offers itself for belief and if believed it is acted on unless some other belief outweighs it. . . the only meaning of free speech is that they [beliefs] should be given their chance and have their way.

In the Schwimmer and Olmstead cases, both in 1928, Holmes extended his championship of freedom to include the advocacy of pacifism and the rejection of government-approved wiretapping. Rosika Schwimmer had had her application for citizenship rejected on the ground that she had been a pacifist. In his dissent, Holmes [Chief Justice Charles Evans Hughes, and Justices Brandeis and Stone also dissented] attacked the Court's decision on two main grounds: that her belief in pacifism was neither dangerous nor silly, and that even if it were both, she still had a right under the Constitution to voice it. "She is an optimist," Holmes wrote, "and states . . . her belief that war will disappear. . . . I do not share that optimism." But it was absurd to assume that hatred of war would not make her a good citizen. In the Olmstead case, which involved the tapping of a bootlegger's wire by federal agents to prove his violation of the prohibition laws, Holmes disagreed with the majority that such a procedure was lawful or constitutional. Wiretapping, he held, was a violation of the Fourth and Fifth amendments, and as such, was a "dirty business." Evidence illegally obtained was a "criminal act." There was no justification for its use by the government, even for the apprehension of criminals. "We have to choose," Holmes wrote in his dissent, "and for my part I think it less evil that some criminals should escape than that the government should play an ignoble part."

Such was the over-all pattern of Holmes' thought. He was an unflinching realist, acutely aware of the relativity of values, moved by no dogmas, pursuing what he conceived to be the truth with an overpowering sense of philosophic humility. In human affairs, he took the long, detached view. But despite his Olympian aloofness, he could be stirred. When Alvin Johnson, in 1933, organized a committee to rescue European scholars driven out by Hitler, Felix Frankfurter asked Justice Holmes to be a sponsor. To Frankfurter's surprise, the Judge, then in his ninety-second year, eagerly accepted, saying: "I have never joined anything to promote a cause. This is different. Nothing less is involved than the history of civilization."

Holmes displayed a tolerant regard for the human mind, no matter what its direction. Without necessarily respecting the content of other people's ideas or convictions, he nevertheless championed their right to voice them. "With effervescing opinions as with the not yet forgotten champagnes," he wrote to the Harvard Liberal Club in 1920, "the quickest way to let them get flat is to let them get exposed to the air." He was in favor of what he called the "aeration" of ideas.

Holmes' greatness as a judge and jurist lies in this: Even in dissents, he spoke from the awe-inspiring platform of the Supreme Court in defense of the most crucial of all public values—freedom of the mind. The ideas embodied in his opinions and dissents became the intellectual property of his countrymen and ultimately even their laws. The skeptical Great Dissenter, in precisely that role, was the conscience of America, perhaps despite himself.