Seven years after graduating from the Harvard Law School, with his reputation for dazzling intellect and shrewd legal acumen already established, Felix Frankfurter sought the advice of Justice Oliver Wendell Holmes as he considered an offer to return to Cambridge as a law professor in 1913. Holmes urged Frankfurter to keep lawyering. “Academic life is but half life—it is withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister,” Holmes counselled. “Business in the world is unhappy, often seems mean, and always challenges your power to idealize the brute fact—but it hardens the fibre and I think is more likely to make more of a man of one who turns it to success.” Fourteen years earlier Holmes had taken the same position in a speech to a bar association. “The place for a man who is complete in all his powers is in the fight. The professor, the man of letters, gives up one-half of life that his protected talent may grow and flower in peace. But to make up your mind at your peril upon a living question, for purposes of action, calls upon your whole nature.”
Holmes could have cited many examples from among the first generation of full-time law teachers in the United States. Boston University’s Melville Bigelow, a friend from his early years as a legal scholar, was learned but had “nothing incisive or masterly about him.” Christopher Columbus Langdell, dean during Holmes’s own brief career as a law professor at Harvard, was “somewhat wanting in horse sense” and guilty of “feebleness in philosophizing.” Even the best men in the next generation, Roscoe Pound and John Henry Wigmore, lacked “the sting of genius.” Unlike Holmes, a thrice-wounded veteran, none of these men had fought in the Civil War. None shared his vision, best expressed in “The Soldier’s Faith” (1895), of scholarship as an act of duty on the order of military service. Both endeavors taught that “the joy of life is living”; both demanded that one “put out all one’s powers as far as they will go”; both permitted one to measure one’s power by overcoming obstacles, including “the temptations of wallowing ease.”
Frankfurter’s generation of legally trained intellectuals was different. The English political scientist Harold Laski, the philosopher Morris Cohen, Frankfurter himself, and a circle of other contributors to the New Republic had at last brought “an atmosphere of intellectual freedom in which one can breath,” Holmes gratefully acknowledged. When Laski produced an edition of Holmes’s Collected Legal Papers in 1920, Holmes thanked him with a martial metaphor he rarely conferred upon scholars of his own generation. “It is a great pleasure to an old warrior who cannot expect to bear arms much longer that the brilliant young soldiers still give him a place in their councils of war.”
Holmes’s advice notwithstanding, Frankfurter joined the Harvard law faculty and remained on it (save for a period of governmental service during the First World War) until his appointment to the United States Supreme Court in 1939. “What challenges me,” he explained to Holmes, “is to bring public life, the elements of reality, in touch with the university, and conversely, to help harness the law school to the needs of the fight outside.” For Frankfurter the most pressing need was to divert the courts from their war on progressive social legislation and interest them in the cause of freedom of speech. To the conservatives of his day, Frankfurter’s constitutional program made him a dangerous radical, but by the 1950’s it formed the received wisdom of most elite law professors. Particularly at Harvard, where Frankfurter’s students and law clerks bulked large on faculty, the principle of deference to legislatures and administrative agencies was developed into an elaborate theory of the “Legal Process” and infused the curriculum long after the Vietnam War soured growing numbers of students on its claims for the democratic process. Increasingly students found greater inspiration in one of their teachers’ favorite targets, the Supreme Court under Chief Justice Earl Warren.
Not the least of the ways the Harvard Law School was harnessed to Frankfurter’s conception of “the fight outside” involved the writing of constitutional history. At his death in 1935, Holmes devised $290, 000 to the United States of America. The money sat untouched until 1955, when (at Frankfurter’s urging) Congress used it to fund a multi-volume history of the Supreme Court. Under the general editorship of Paul Freund, a Frankfurter student and Harvard’s leading constitutional scholar, a team of Frankfurter-approved law professors was selected and asked to complete the series by 1965. The first volume did not appear until 1971, and others appeared at a remarkably slow pace. In large part Frankfurter himself was to blame for envisioning a series of massive, definitive volumes that would place the Court beyond the reach of historians untrained in the law.
During the same years Frankfurter sharply restricted access to Louis Brandeis’s and Holmes’s papers, lest some historian trivialize the justices’ contributions to the Legal Process. (Perhaps the greatest threat was the political scientist Alpheus T.Mason, a biographer of Brandeis, Harlan Fiske Stone, and William Howard Taft. “What Mason touches he vulgarizes,” Freund complained to Frankfurter in 1953.) Holmes’s papers were kept closed to most researchers as Frankfurter, the Frankfurter-selected law professor Mark DeWolfe Howe, and the Freund-selected law professor Grant Gilmore successively attempted to complete biographies of the justice. In the interim, historians made due with published editions of Holmes’s letters and Civil War diary, Catherine Drinker Bowen’s popular life, Yankee from Olympus (1944), two volumes (1957 and 1963) of Howe’s biography (which ended with Holmes’s appointment to the Massachusetts’s highest court in 1882), and thoughtful essays based on published sources, such as Stow Persons’s chapter on Holmes as “Legal Naturalist” in American Minds (1958).
G. Edward White’s brilliant biography is not the first to appear since the opening of Holmes’s papers in 1985, but it is the first to study the jurist’s entire career as a legal thinker with great care and to show its relationship to his personal life. Not the least of White’s accomplishments is that he shows why Frankfurter and his successors could never come to terms with Holmes. Upon close examination, the man who advised Frankfurter that the proper test of one’s power was the ability to “idealize the brute fact” was hardly “the impersonal voice of Constitution” of Frankfurterian legend. White’s Holmes is a far more compelling figure; through this book a broad readership will learn why legal intellectuals are still, as Stanford’s Thomas Grey once confessed, “fascinated by Holmes, a fascination compounded of repulsion and attraction.”
White could not have exorcised Frankfurter’s spirit from American constitutional history had he not had such a firm understanding of the justice’s life and influence. White enrolled in the Harvard Law School after completing a Ph. D. in American Studies at Yale in 1967. His dissertation studied how the Eastern establishment figures Frederic Remington, Theodore Roosevelt and Owen Wister created a popular image of the American West. This encounter with mythmaking may help explain White’s skeptical reaction when his law professors offered, “reasoned elaboration,” “neutral principles” and the other tenets of the Legal Process school as tireless norms of judicial conduct. Such skepticism was certainly evident in an essay White published in 1971, linking the rise and fall of Holmes’s reputation to the scholarly agendas of his celebrants and detractors. In 1971—72 White clerked for Earl Warren, assisting the recently retired justice as he prepared his memoirs and gaining at first-hand an understanding of the judge whose seeming indifference to legal “craftsmanship” had earned him low marks from the Harvard professors.
White joined the University of Virginia’s law faculty in 1972 and commenced a running argument with Frankfurterianism in jurisprudence and legal history which in many ways culminates in his latest book. A 1973 essay historicized his former teachers by assigning them to a jurisprudential tradition made “at least partially obsolete” by the social change of the 1960’s. The judiciary of the 1970’s, White argued “should not merely search for the collective wisdom of the nation” but should “attempt to assist in the creation of that wisdom.” As a model he offered the Warren Court’s decision in Brown v. Board of Education (1954).
White continued his revision of his law professors’ teachings in two subsequent books. White’s principal goal in the American Judicial Tradition (1976) was to sketch the history of the courts “unique and delicate relation to politics,” revealing in the process that Frankfurter’s views of judicial restraint was but one piece in a “mosaic” of thought on the subject and that activists on Warren’s Court had at least as long a pedigree. White elaborated the point with specific reference to Earl Warren in his 1982 biography of the chief justice. He documented Frankfurter’s repeated charges that Warren lacked a coherent judicial philosophy, then rebutted them by finding in Warren’s life and opinions a jurisprudence of ethical imperatives that amounted to “a powerful alternative” to that of Frankfurter.
While White labored on these projects, Frankfurter’s influence came under attack from a different quarter. In 1977 Daniel Boorstin, who as Librarian of Congress chaired the Holmes Devise’s permanent committee, placed the series in receivership and asked the historian Stanley Katz to join Freund as editor. Katz recruited a new team of scholars and urged them to aim for something less than “divine standards of omniscience.” Among the recruits was G. Edward White, whose Marshall Court and Cultural Change (1990), became a prize-winning, critical success, thanks to White’s insistence on understanding John Marshall and his brethren in light of the best scholarship on early American culture, politics, and society. In his preface, White underlined the irony of his inclusion in the series by doubting whether Frankfurter would have approved of his selection or the volume he produced.
It requires no great act of counterfactual speculation to conclude that Frankfurter would have disliked White’s new book. His exposure of how Frankfurter knowingly borrowed from Holmes’s life and work only that which advanced his own agenda would have been infuriating enough. Far worse is what is perhaps White’s most arresting claim in the book: “The story of Holmes’ rise to “greatness” is to an important extent the story of his friendship with Felix Frankfurter, whose own rise to prominence in the years between 1912 and 1931 bore a symbiotic relationship to the emergence of Holmes as an eminent judge.” As White makes clear, the two men’s regard for each other was at least as much a product of their personal and emotional needs as their respect for each other’s intellectual prowess. Frankfurter, part of a cohort of Jewish intellectuals entering the academe in the early 20th century, gained the ear of an establishment figure, a Boston Brahmin, a “Yankee from Olympus.” Further, Holmes’s reliance on Frankfurter for “legal secretaries” (the precursors of today’s judicial clerks) helped the law professor direct his proteges to the pinnacle of the legal profession and legal academe. In return, Frankfurter gave Holmes something more profound than flattery (although he and his fellows offered plenty of that). The younger lawyer offered the judge his best chance for realizing the astonishingly ambitious intellectual objective Holmes set himself in young adulthood, a goal to which he would subordinate all his professional and personal relationships: attaining “the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought.”
This is not the sort of aspiration most of us entertain for ourselves today, and White at once sets to work describing the very different world of Holmes’s youth. Born into genteel Boston society in 1841, “Wendell’s” parents and teachers instructed their charge to expect the recognition of his peers should he discharge the burdens that came with his talents and position. White places great weight on Wendell’s relationship with his father, a prominent medical scholar widely known for his series of witty essays on the doings of a Victorian household. Earlier biographers emphasized the distance—even antipathy—between father and son. White duly records the numerous occasions when the two tweaked each other, and he also notes Wendell’s belief that his father’s literary enterprises kept him from producing a great work. But no less important than this rivalry, White argues, was the personal example the elder Holmes offered his son. By combining a professional career with literary celebrity and by organizing his household around himself and his work, he presented Wendell with a model which the younger man would use in subordinating his own personal life to search for greatness.
Holmes’s Civil War service, too, is as important to White as it was to earlier biographers, but, again, with a difference. Captain Holmes’s first-hand experiences with the “moving accident” of war, with marching soldiers “with bayonets in their rear, to death,” remains an important source for the judge’s bleak view of human nature and profound pessimism about social uplift, as others have argued. White goes further in maintaining that war provided Holmes with a touchstone for judging when a person was “in the fight,” engaged in “high and dangerous action.” As unlikely as it may seem, that Holmes believed his law writing and judging were the intellectual equivalents of war finds ample support in his frequent resort to military metaphors to describe those activities.
White’s careful chapters on Holmes’s legal study and scholarship between 1865 and 1882, for example, do more than document the audacity of his subject, whose Common Law (1881) combined German historicism and bracing policy analysis when most treatise writers aimed only to impose a modest degree of order upon the “ragbag of details” in some corner of the law. These chapters also convince us of Holmes’s exalted notion of scholarship as a passionate activity, his belief that (as Holmes wrote in 1886) “man may as well live greatly in the law as elsewhere; that there as elsewhere his thought may find unity in an infinite perspective; that there as well as elsewhere he may wreak himself upon life, may drink the bitter cup of heroism, may wear his heart out after the unattainable/’ And the chapters help us understand what Holmes once called his “proud dependence”: his deeply felt need for the recognition of knowledgeable legal experts, such as Oxford’s Frederick Pollock or the score of full-time law professors at Harvard College and other Gilded-Age law schools.
During his 20 years on the Massachusetts Supreme Judicial Court, Holmes discovered that judging was no place to produce a “continuous, logical, philosophical exposition” of a legal doctrine, its historical roots, and its current justifications. Though his decisions by-and-large followed the lines he laid down in The Common Law, Holmes accustomed himself to viewing judging as a somewhat arbitrary and fortuitous process, like war. His aim was to show grace under fire: “to hammer out as compact and solid a piece of work as one can, to try to make it first rate, and to leave it unadvertised.” And for Holmes the test of first-rate work was its transcendental appreciation of “the mystery of the universe” that lay behind every legal detail.
Holmes’s difficulty for much of his judicial career was that he could find no great audience for his style of judging. The Harvard law professors were more intent upon pecking at The Common Law than celebrating the man who left their company for the bench. Holmes’s fellow judges were no more accommodating: most owed their appointments to political connections or success at the bar, attainments Holmes tended to deprecate, if not disdain. Holmes tried to convince himself that Theodore Roosevelt’s nomination in 1902 was a reward for hard work, but he became despondent over undiscriminating newspaper accounts that deemed him “brilliant but not very sound,” “more of a “literary feller” than one often finds on the bench.”
Holmes found some satisfaction in conversation with the members of an urbane and fashionable set of English aristocrats, whom he visited several times before his appointment to the Supreme Court, often without his wife. In visits to country estates he generally declined invitations to go hunting; he preferred conversations with lively and engaging hostesses, with whom “you could express your innards with all the appropriate rapture, floating on the exquisite breath of your own egotism.” Age, the ritualized society of official Washington, the demands of the Court, and something of a renaissance in his marriage lessened Holmes’s interest in flirtation, but they did not bring him recognition. Only with the arrival of Felix Frankfurter did Holmes find a substantial constituency in the progressive intelligentsia centered on the New Republic.
White takes the festschrift Frankfurter orchestrated in the Harvard Law Review to commemorate Holmes’s 75th birthday as the start of the justice’s rise to eminence. Several contributors assumed Holmes was their ally in the battle for progressive reform. In fact, their fight was not his fight. To be sure, Holmes regularly (but not invariably) voted to uphold reforms when they came before the Court, most notably in his dissent from the Lochner decision of 1905, striking down a maximum-hours law for New York’s bakers. But, given his wartime experiences and Malthusian convictions, he could not believe that “universal bliss would ensue if the world would only get a move on and obey when the New Republic says Hocus-Pocus-Presto-Chango.” At times his views of reformers ran to the sardonic. “Doesn’t the squashy sentimentality of a big minority of the people about human life make you puke?” he demanded of Wigmore in 1915. “People who believe in the upward and onward, who talk of uplift, who think that something particular has happened and that the universe is no longer predatory—Oh bring me a basin.”
Holmes believed his job as a judge was to give effect to the demands of the dominant social forces abroad in the land. It was his job when the prevailing majority demanded a tenhours law for workers, and it was his job when it demanded debt peonage for black Southerners (the scheme he would have upheld in the 1911 case of Bailey v. Alabama) or compulsory sterilization for the mentally ill (the legislation he voted for in the 1927 case of Buck v. Bell). In deciding common-law cases Holmes’s faith in his ability to divine the requirements of “the crowd” often led him to deny the claims of victims of industrial accidents when reformers would have left the matter to a jury. (The persistence of the genteel tradition in Holmes’s thought was particularly troubling for Grant Gilmore, an heir to the empirically minded legal realists, who took on the biography only to discover how much Holmes shared with the realists’ arch-nemesis, the legal formalist Langdell.)
Holmes was clear enough about his ultimate goal as a jurist. “To an imagination of any scope the most far-reaching form of power is not money, it is the command of ideas,” he declared in 1897. He offered the example of Descartes, whose speculations became “a practical force controlling the conduct of men” a century after his death. How, then, we might ask, is Holmes doing, almost 60 years after his death? His great work, The Common Law remains unreadable short of “an almost superhuman effort of will” (Gilmore’s verdict). While White’s penetrating chapter on the book will intrigue specialists, general readers will not rush to consult the original. Further, Holmes’s attempts to limit recovery in contract, property and tort have been all but submerged through legislation and pro-plaintiff judicial innovations.
At first glance Holmes’s constitutional legacy would seem secure. The phrase “clear and present danger,” the notion of “free trade in ideas,” the claim that free thought means “not free thought for those who agree with us but freedom for the thought that we hate” continue to surface in judicial opinions, scholarly writing, and popular debate on freedom of speech. But as White makes clear, Holmes’s arresting aphorisms never added up to a coherent jurisprudential position: the justice used them to conduct a conversation with his coterie of young intellectuals rather than to build a systematic defense of free expression. “Systems are forgotten,” Holmes wrote Morris Cohen, “only a man’s aperçus are remembered.” Yes, but will the aperçus be understood, especially when (as White argues) most in Holmes’s oeuvre can be paired with another pointing in the opposite direction?
A still more troubling aspect of Holmes’s legacy is the personal cost he willingly bore in his pursuit of lasting intellectual power. During the 1870’s William James, a friend of his youth, wrote of Holmes’s cutting a “deep, selfbeneficial groove through life” as he worked on his scholarship. Throughout his childless marriage, Holmes recalled, his wife Fanny devoted “all her powers to surrounding me with enchantments,” yet on the day she died he wrote an opinion and circulated it to his brethren. On the bench, Holmes rarely betrayed any interest in the litigants, his fellow judges, the lawyers before him, or the general public. “It is one of the ironies of Holmes’s career,” White concludes, “that although he cared so much for recognition, and although so many persons, over the years, have made an investment in his ideas or his work or his life, he gave so little of himself to the persons around him, even those whom he loved.”
On March 8, 1931, Holmes participated in a nationwide radio broadcast, produced with behind-the-scenes guidance from Felix Frankfurter, to celebrate the justice’s 90th birthday. A crowd of 500 gathered in Langdell Hall at the Harvard Law School for the occasion. (Forty years later Paul Freund would play a recording of Holmes’s moving response for students in his constitutional law seminar.) None of the tributes of the occasion must have pleased Holmes more than that offered by Chief Justice Charles Evans Hughes. “The most beautiful and the rarest thing in the world,” Hughes said, “is a complete human life, unmarred, unified by intelligent purpose and uninterrupted accomplishment, blessed by great talent employed in the worthiest activities, with a deserved fame never dimmed and always growing. Such a rarely beautiful life is that of Mr. Justice Holmes.”
We can certainly find in Holmes the stimulating companion that charmed White as he wrote this extraordinary account of an extraordinary mind. But a complete human life? That would seem to require a willingness not only to idealize brute facts but also to engage them in their inelegant intractability, and that trait is not much evidenced in the life of the rather distant man who stares up from White’s book jacket, into the cosmos.