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Advise and Dissent

ISSUE:  Autumn 1993

The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes. By Liva Baker. HarperCollins. $29.95.

If you might wonder why some persons try to move heaven and dirt to despoil the nomination to the U. S. Supreme Court of a legal scholar (as distinguished from a former law student who would have gained either legal or judicial experience or both), the reason, knowing it or not, is that they do not want another Oliver Wendell Holmes on the court. Although Liva Baker does not confront the confirmation process of court nominees, she takes on Holmes, the law, and the court with such verve that you can hear the ineluctable political rumble that attends a republic that John Adams urges should be “a government of laws, and not of men.” If Adams was an idealist, Holmes, an elitist, was a realist. Baker makes her reader an enthusiast for yet another biography of the man who qualified for three Purple Heart citations during action in the Civil War and lived to within months of learning that President Franklin Roosevelt had proposed to enlarge the court: to enlist men enough to defeat regression and uphold new laws.

Baker, not a spoiler but herself a scholar with a nose for both law and politics as well as for American history in the round, has written neither hagiography nor a celebrity expose but a reader-friendly life. She sees the Great Dissenter as an intellectual Boston Brahmin, a self-destructing thesis that she preserves by showing also that he was detached, a contrarian, a philosopher with a literary bent, and that he liked the charms of women and minds of men. She comes as close as a biographer can in one volume to demythicizing a national icon without resorting to psychoanalysis, fictional narrative, or voyeurism. She uses facts enough but also an historian’s sources that were human and thus in thrall either to a legend or to themselves. In the doing she also plumbs American constitutional law and the court for what it had come to be by the time that Holmes retired in his 91st year. Which myth she deflates best is the reader’s prerogative to decide with whatever constitutional bias reigns within.

The Supreme Court, whether in one generation it has been seen as a bench of reactionary superannuates or in another as a tripartite government’s sticky safety valve, determines what the constitution means according to a season’s majority of separate and unequal minds. The way the court functions—to oversimplify—is that a justice, assigned by the chief justice a majority opinion to write, circulates a draft opinion for comment by semi-agreeing colleagues before confecting an opinion that states a rationale for either following or distinguishing precedent. The appearance of dissenting opinions in the court’s history has not been uncommon. Some decisions are decided by one vote, five-to-four. What is uncommon is for a justice to gain a reputation as an original-thinking dissenter and for holding to a principle without concern for its consequences, which is not what a president or a president’s opposition seeks in a nominee. (About the fate of Sacco and Vanzetti, Holmes was “convinced that these men did not get a square deal, but we cannot take the United States government into State affairs and undermine the basic principles of the separate sovereignties of the State and Federal Governments.” That he said sotto voce in 1927 when he refused a request to stay their execution. “But has justice been done, Sir?” His secretary Thomas Corcoran made the inquiry. )

Almost everybody who has heard of Washington and Lincoln has heard of Holmes; but if they have heard of Valley Forge and the Emancipation Proclamation, have they heard what the Great Dissenter stood for other than for preserving the Union as it approached its diamond jubilee when at age twenty and a Harvard College senior he volunteered to serve in the Twentieth Massachusetts Infantry Regiment? The Supreme Court’s jurisprudence, once as simple as Marbury v. Madison (it established the court’s right of review of the constitutionality of an act of Congress), began to get convoluted by the time Holmes went on the court in 1902. Holmes added to the complexity both of jurisprudence and court watching, which during his time required more than patience and binocularity—say, nine lives; because some freedmen did not survive the court’s decisions during one life cut short by lawful lynching. Although the North won the Civil War on killing fields, the South began to win it both in myth and in fact through political circumstances that need not be elaborated here. There had occurred in the North a loss of interest in former slaves concomitant with a gain in interest in creating wealth such that for a long time the court, including Holmes, used the Fourteenth Amendment to abet property rights instead of personal rights. An attempt to state from the optional use of this provision a rule of law, however, does not succeed. (Of course not all antebellum Northerners had been abolitionists, particularly some Bostonians, traders with the South, who would threaten the life of William Lloyd Garrison when he scheduled speakings in Boston. Before that, moreover, some New Englanders, such as Ralph Waldo Emerson, unhappy with a Union that included the South, had advocated secession. )

Holmes, undecided about a career after graduating from Harvard College in absentia, returned from the war and miraculous survival at Antietam only to learn that the study of law at Harvard was no less stifling than its undergraduate curriculum. While practicing law by day he was devoting nights to intellectual pursuits when in 1872 he married Fanny Dixwell (she had been courted also by William James), spent untold hours for five years or more writing a book, The Common Law (1881) that derived in part from his twelve Lowell Institute Lectures. In 1882 Holmes went on the Massachusetts Supreme Judicial Court. There, somehow out of conflict between his Brahmin elitism and the intellectualism of his milieu in the Cambridge of his rearing (as a boy his friends included the daughter of Louis Agassiz, his father was an author and a pioneering professor of scientific medicine at Harvard whose tenure overshadowed the son’s short sojurn on Harvard’s law faculty) he wrote some court opinions that happened to side with the cause of labor with whom he did not sympathize. Holmes was following the law—not seeking change.

Recognizing Holmes’ independence of mind and the political and personal influence of Senator Henry Cabot Lodge, President Theodore Roosevelt appointed Holmes, age 61, to the “Massachusetts seat” on the U. S. Supreme Court. Teddy regretted his appointment of Holmes as much as President Dwight Eisenhower would regret his appointment of Earl Warren as chief justice (and as much as William Howard Taft, when chief justice, regretted that he had persuaded President Calvin Coolidge to name Harlan Fiske Stone to the court). Holmes did not follow the trust buster’s bluster and political agenda for causing the trusts to reorganize so they could monopolize for another century. Nevertheless, through his scholarship (his library contained 14, 000 volumes) and associations with scholars both at home and abroad, Holmes had fashioned a far-ranging and philosophical if unpredictable intellect. No matter that he was not concerned with the import of his judicial decisions and opinions or with the imperatives of a changing America (in The Common Law he says: “The life of the law has not been logic: it has been experience”) unlike Louis Brandeis when he went on the court in 1916, an appointee of President Woodrow Wilson. According to Baker, neither Holmes nor Brandeis was afraid of change: Holmes thought change inevitable; Brandeis thought it desirable. Baker sees that it was Brandeis the judicial technician of meticulous prose who became a legend among lawyers, that it was the philosophical and literary Holmes who became the popular legend. A reader of Baker’s meticulous investigation of Holmes and the court, the work of an assiduous court watcher who has subjected Holmes to the equivalent of magnetic resonance imaging, can see through Holmes and how it happened that the court’s nomination process has become, say, the moral equivalent of civil war. No, Virginia, Holmes was not the man of his legend either on the bench or on a divan in a rural Irish stately home in County Cork: he was both less and more—and defies the discipline of biography no less than he defied precedents and chief justices. If spouses and friends can understand a living person only to an extent, posthumous biography can give a reader to understand more about the life of the biographee only to an extent, although Baker has given her subject as thorough an examination as biography can render. If her book ever should be banned in Boston or yanked from the shelves of a certain library in Florida, it should be read nevertheless by certain Washington lobbyists, media persons, and interrogators who hold six-year charters so that—if for no other reason—they might understand that on the predictability of a court nominee’s bench work all bets are off.

Because they were interesting and outspoken, both Wendell and Fanny Holmes became favorite dinner guests in social Washington, including at the White House, until they got too old and weary to go out. Of going to dinner at the White House Holmes was heard to say: “One’s first impression is that this is not a place to make you proud of your country.” At the White House Fanny was heard to answer a nosy President Roosevelt: “Mr. President, Washington is full of famous men and the women they married when they were young.” Although a voracious scholar whose sanctuary was his library, Holmes possessed a passion for persons. As a young man in Boston and Cambridge, Holmes had known Emerson and George Ticknor and had fraternized with William James among countless others not to become illustrious. He would number among acquaintances and friends Americans such as Brooks and Henry Adams, Alice and Henry James, Richard Henry Dana, Charles Sanders Peirce, John Dewey, Brandeis, Morris Cohen, Felix Frankfurter, and Walter Lippman and Englishmen such as John Stuart Mill, Thomas Carlyle, Frederick Maitland, Henry Maine, Benjamin Jowett, Leslie Stephen, Trollope, Disraeli, Gladstone, Browning, and Harold Laski. When Lippmann edited the New Republic, it praised Holmes for what he had done for the Progressive Movement, although Holmes held no brief for that movement’s legitimacy.

Holmes went abroad in 1866, took the grand tour of Europe that was much like his grand tour of life in that it was the first of many visits abroad and beyond the reputed orthodoxy of married Brahmins. It was at an undetermined time and place in London that Holmes encountered Lady Clare Castleton, whom he would visit there in Eaton Place and at Deneraile Court in Ireland. A long correspondence ensued during which Fanny might have named Clare corespondent, although her case would have languished for lack of evidence until Holmes’s letters written to Clare were located in the Holmes archive at the Harvard Law School. Nevertheless, the childless marriage lasted until Fanny’s death in 1929. They married late in life, but the marriage lasted 47 years; it survived both his flirtations and preoccupations. One gains the notion that Holmes might have lived longer than almost his 94th birthday had he not retired from the court and that he might have been determined not to retire. He did retire, however, upon Chief Justice Charles Evans Hughes’ first suggestion.

Examples set, Holmes’ work had been finished. His legend would begin its long transitory rise. It flourished for more than a half century at the hands of hagiographers, legal realists, pragmatists, logical positivists, political liberals, Progressives. (A cult of detractors—Jesuit professors, Westbrook Pegler, Henry Luce—had taken aim at Holmes’ memory within years of his death, but they did him far less harm than had Confederate sharpshooters nearly a century before. ) Baker’s is neither the first nor last deflator of the Holmes legend, but in her versatility she demonstrates worthiness of a subject who led many long lives to track down. Perhaps only a person endowed with an insight into the ways of men and with a woman’s intuition could achieve such a measured and respectful balloon popping. Future nominees to the court who might have become wary of a confirmation process should not lose sight of the biographical process.


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