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Oliver Wendell Holmes, Jr.

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Oliver Wendell Holmes, Jr.

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Boston, Massachusetts>Boston, Massachusetts193563mf=y}}| deathplace = Washington, D.C.| spouse = Fanny Bowditch Dixwell}}Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice on the Supreme Court of the United States from 1902 to 1932. Noted for his long service, his concise and pithy opinions, and his deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his "clear and present danger" majority opinion in the 1919 case of Schenck v. United States, and is one of the most influential American common-law judges.

Early life

Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr. and abolitionist Amelia Lee Jackson. As a young man, Holmes loved literature and supported the abolitionist movement that thrived in Boston society during the 1850s. He graduated from Harvard University in 1861, where he was elected to the Phi Beta Kappa honor society(2) and was a brother of the Alpha Delta Phi.

Civil War

During his senior year of college, at the outset of the American Civil War, Holmes enlisted in the fourth battalion, Massachusetts militia, and then received a commission as first lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry. He saw much action, from the Peninsula Campaign to the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. Holmes particularly admired and was close to his fellow officer in the 20th Mass., Henry Livermore Abbott. Holmes is said to have shouted at Lincoln to take cover during the Battle of Fort Stevens, although this is commonly regarded as apocryphal.

Legal career

State Judgeship

(File:Oliver wendell holmes jr.jpg|thumb|Oliver Wendell Holmes Jr. as a young man.)After the war's conclusion, Holmes returned to Harvard to study law. He was admitted to the bar in 1866, and went into practice in Boston. He joined a small firm, and married a childhood friend, Fanny Bowditch Dixwell. Their marriage lasted until her death on April 30, 1929. They never had children together. They did adopt and raise an orphaned cousin, Dorothy Upham. Mrs. Holmes was described as devoted, witty, wise, tactful, and perceptive.Whenever he could, Holmes visited London during the social season of spring and summer. He formed his closest friendships with men and women there, and became one of the founders of what was soon called the “sociological” school of jurisprudence in Great Britain, which would be followed a generation later by the “legal realist” school in America.Holmes practiced admiralty law and commercial law in Boston for fifteen years. In 1870, Holmes became an editor of the American Law Review, edited a new edition of Kent's Commentaries on American Law in 1873, and published numerous articles on the common law. In 1881, he published the first edition of his well-regarded book The Common Law, in which he summarized the views developed in the preceding years. In the book, Holmes sets forth his view that the only source of law, properly speaking, is a judicial decision. Judges decide cases on the facts, and then write opinions afterward presenting a rationale for their decision. The true basis of the decision, however, is often an "inarticulate major premise" outside the law. A judge is obliged to choose between contending legal theories, and the true basis of his decision is necessarily drawn from outside the law. These views endeared Holmes to the later advocates of legal realism and made him one of the early founders of law and economics jurisprudence.Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George Frisbie Hoar convinced Hayes to nominate another candidate. In 1882, Holmes became both a professor at Harvard Law School and then a justice of the Supreme Judicial Court of Massachusetts, resigning from the law school shortly after his appointment. He succeeded Justice Horace Gray, whom Holmes coincidentally would replace once again when Gray retired from the U.S. Supreme Court in 1902. In 1899, Holmes was appointed Chief Justice of the Massachusetts Supreme Judicial Court.During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize trade unions as long as no violence or coercion was involved, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers.

Supreme Court

Overview

On August 11, 1902, President Theodore Roosevelt named Holmes to the United States Supreme Court on the recommendation of Senator Henry Cabot Lodge (Roosevelt reportedly admired Holmes's "Soldier's Faith" speech as well). Holmes' appointment has been referred to as one of the few Supreme Court appointments in history not motivated by partisanship or politics, but strictly based on the nominee's contribution to law.BOOK

, Presidential Leadership
, James Taranto, Leonard Leo
, Wall Street Journal Books
, 2004
,weblink
, 2008-10-20,

The Senate unanimously confirmed the appointment on December 4, and Holmes took his seat on the Court on December 8, 1902. Holmes succeeded Justice Horace Gray, who had retired in July 1902 as a result of illness. According to some accounts, Holmes assured Roosevelt that he would vote to sustain the administration's position that not all the provisions of the United States Constitution applied to possessions acquired from Spain, an important question on which the Court was then evenly divided. On the bench, Holmes did vote to support the administration's position in "The Insular Cases." However, he later disappointed Roosevelt by dissenting in Northern Securities Co. v. United States, a major antitrust prosecution.(3)(File:Oliver Wendell Holmes, 1902.jpg|left|thumb|In the year of his appointment to the United States Supreme Court.)Holmes was known for his pithy, short, and frequently quoted opinions. In more than thirty years on the Supreme Court bench, he ruled on cases spanning the whole range of federal law. He is remembered for prescient opinions on topics as widely separated as copyright, the law of contempt, the antitrust status of professional baseball, and the oath required for citizenship. Holmes, like most of his contemporaries, viewed the Bill of Rights as codifying privileges obtained over the centuries in English and American law. Beginning with his first opinion for the Court, in Otis v. Parker, Holmes declared that "due process of law," the fundamental principle of fairness, protected people from unreasonable legislation, but was limited to only those fundamental principles enshrined in the common law and did not protect most economic interests. In a series of opinions during and after the First World War, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege to do harm, except in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" of causing some harm that the legislature had properly forbidden. In Schenck v. United States, Holmes announced this doctrine for a unanimous Court, famously declaring that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic." The following year, in Abrams v. United States, Holmes — influenced by Zechariah Chafee's article “Freedom of Speech in War Time”(4) — delivered a strongly worded dissent in which he criticized the majority's use of the clear and present danger test, arguing that protests by political dissidents posed no actual risk of interfering with war effort. In his dissent, he accused the Court of punishing the defendants for their opinions rather than their acts. Although Holmes evidently believed that he was adhering to his own precedent, many later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. The Supreme Court departed from his views where the validity of a statute was in question, adopting the principle that a legislature could properly declare that some forms of speech posed a clear and present danger, regardless of the circumstances in which they were uttered.By the time Holmes was 80, he had dissented in so many opinions that he became known as "The Great Dissenter,"(5) a title which has been carried through the years to refer to various U.S. Supreme Court justices, including Justice John Marshall Harlan,(6) with the latest being Justice William Brennan.(7)

Legal Skeptic and Jurist

Justice Holmes laid the foundation of healthy and constructive scepticism in the law. Hughes writes: "Though another half century was to elapse before the appearance of Ogden and Richard's The Meaning of Meaning, exploration of meaning of meaning of law was Holmes's pioneer enterprise."(8) Hughes further writes: "To me, Mr. Justice Holmes is a prophet of the Law."(9)In 1881, Holmes published The Common Law, representing a new departure in legal philosophy. By his writings, he changed attitude to law. The opening sentence captures the pragmatic theme of that work and of Holmes's philosophy of law: 'The life of the law has not been logic; it has been experience.' In a dissenting opinion in Lochner v. New York (1905)(10) Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. Francis Biddle writes: "He was convinced that one who administers constitutional law should multiply his skepticisms to avoid heading into vague words like 'liberty', and reading into law his private convictions or the prejudices of his class."(11) Biddle also tells us that Holmes "refused to let his preferences (other men were apt to call them convictions) interfere with his judicial decisions…… The steadily held determination to keep his own views isolated from his professional work is aptly shown by his famous remark in the Lochner case-the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statistics…. A constitution is not intended to embody a particular economictheory." P.IO. It is importantto note that eighty years after Lochner case (1905), Human Right Commission of Pakistan recommended that, "the confusion caused by conflict between normal Iaws and belief which does not enjoy the force of law needs to be removed." (12)According to Holmes, 'men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independentmouthpieces of the infinite.,(13) 'The common law is not a brooding omnipresence in the sky,(14) . Law should be viewed 'from the stance of the bad man,(15). 'The prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law. ,(16) A judge must be aware of social facts. Only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law will be in a posiiion to fulfill his functions properly.As a justice of US Supreme Court, Holmes introduced a new method of constitutional interpretation. He challenged the traditional concept of constitution. Holmes also protested against the method of abstract logical deduction from general rules in the judicial process. According to Holmes, lawyers and judges are not logicians and mathematicians. The books of thelaws are not books of logic and mathematics. He writes: "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed.The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. ,,(17)In Lochner v. New York(18) he observes that, 'General proposition do not decide concrete cases. Holmes, also insisted on the separation of 'ought' and 'is' which are obstacles in understanding the realities of the law. As an ethical sceptic, Holmes tells us that if you want to know the real law, and nothing else, you must consider it from the point of view of 'bad man' who cares only from material consequences of the courts' decisions, and not from the point of view of good man, who find his reasons for conduct "in the vaguer sanctions of his conscience. ,,(19). The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence- and nothing is easier in legal reasoning than to take these words in their moral sense(20). Holmes said: "I think our morally tinted words have caused a great deal of confused thinking. But Holmes is not unconcerned with moral question. He writes: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law.,,(21)

Critique

File:Stamp US 1968 15c Holmes.jpg|thumb|1968 postage stamp issued by the U.S. Post Office to commemorate Oliver Wendell Holmes, Jr.]]Holmes was criticized during his lifetime and afterward for his philosophical views, which his opponents characterized as moral relativism. Holmes's critics believe that he saw few restraints on the power of a governing class to enact its interests into law. They assert that his moral relativism influenced him not only to support a broad reading of the constitutional guarantee of "freedom of speech," but also led him to write an opinion for the Court upholding Virginia's compulsory sterilization law in Buck v. Bell, 274 U.S. 200 (1927), where he found no constitutional bar to state-ordered compulsory sterilization of an institutionalized, allegedly "feeble-minded" woman. Holmes wrote, "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. ... three generations of imbeciles are enough." While his detractors point to this case as an extreme example of his moral relativism, other legal observers argue that this was a consistent extension of his own version of strict utilitarianism, which weighed the morality of policies according to their overall measurable consequences in society and not according to their own normative worth. Holmes was admired by the Progressives of his day who concurred in his narrow reading of "due process." He regularly dissented when the Court invoked due process to strike down economic legislation, most famously in the 1905 case of Lochner v. New York. Holmes's dissent in that case, in which he wrote that "a Constitution is not intended to embody a particular economic theory," is one of the most-quoted in Supreme Court history. However, Holmes wrote the opinion of the Court in the Pennsylvania Coal Co. v. Mahon case which inaugurated regulatory takings jurisprudence in holding a Pennsylvania regulatory statute constituted a taking of private property. His dissenting opinions on behalf of freedom of expression were celebrated by opponents of the Red Scare and prosecutions of political dissidents that began during World War I. Holmes's personal views on economics were influenced by Malthusian theories that emphasized struggle for a fixed amount of resources; however, he did not share the young Progressives' ameliorist views.

Retirement, death, honors and legacy

Holmes served on the court until January 12, 1932, when his brethren on the court, citing his advanced age, suggested that the time had come for him to step down. By that time, at 90 years of age, he was the oldest justice to serve in the court's history. Three years later, Holmes died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday. In his will, Holmes left his residuary estate to the United States government (he had earlier said that "taxes are the price we pay for a civilized society"). He was buried in Arlington National Cemetery,(22) and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.{{Citation needed|date=January 2009}}Holmes's papers, donated to Harvard Law School, were kept closed for many years after his death, a circumstance that gave rise to numerous speculative and fictionalized accounts of his life. Catherine Drinker Bowen's fictionalized biography "Yankee from Olympus" was a long-time bestseller, and the 1951 Hollywood motion picture The Magnificent Yankee was based on a highly fictionalized play about Holmes's life. Since the opening of the extensive Holmes papers in the 1980s, however, there has been a series of more accurate biographies and scholarly monographs.

Theatre, film, television, and fictional portrayals

American actor Louis Calhern portrayed Holmes in the 1946 play The Magnificent Yankee, with Dorothy Gish as Holmes's wife, and in 1950, Calhern repeated his performance in MGM's film version, for which he received his only Academy Award nomination. Ann Harding co-starred in the film. A 1965 television adaptation of the play starred Alfred Lunt and Lynn Fontanne in one of their few appearances on the small screen.Holmes is featured in the following passage by Isaac Asimov:{{cquote|Holmes, in his last years, was walking down Pennsylvania Avenue with a friend, when a pretty girl passed. Holmes turned to look after her. Having done so, he sighed and said to his friend, "Ah, George, what wouldn't I give to be seventy-five again?"(23)}}His quote is shown on the wall in the school in the Gus Van Sant film Elephant.In the movie Judgment at Nuremberg (1961), defense advocate Hans Rolfe quotes Justice Oliver Wendell Holmes twice with the following:"This responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found, most of all in the character of men."

References

AUTHORLINK= DATE=2009-12-11 URL=HTTP://WWW.FJC.GOV/SERVLET/TGETINFO?JID=1082 PAGES = LANGUAGE =,

Supreme Court Justices Who Are Phi Beta Kappa Members, Phi Beta Kappa website, accessed Oct 4, 2009

Text of the U.S. Supreme Court finding

JOURNAL, Chafee, Zechariah, 1919, Freedom of Speech in Wartime, Harvard Law Review, 32, 932–973, 10.2307/1327107,

weblink

weblink

weblink

Charles. Hughes, "Early Writing of Holmes, Jr.", in 44

Harvard Law Review (1930-31), at p. 718. 312 Ibid. at p. 677.

198 US 45,76 (1905)

Francis Biddle, Justice Holmes, Natural law, and the Supreme Court, (1960), p.lO.

State of Human Rights in 1996, at p. 46, Human Right Commission of Pakistan

Francis Biddle, Justice Holmes, Natural Law and the Supreme Court, (1960) p.49.

Southern Pac. Co. V. Jensen, 244 U.S. 205, 222 (1917) (dissent).

Holmes, The Path of the Law, 10 Harvard Law Review (1897) 457

Ibid.

Holmes, The Common Law,1881.

198 US 45,76 (1905).

Holmes, The Path of the Law, Harvard Law Review, X (1897),457

Frances Biddle. Justice Holmes, Natural Law, and the Supreme Court. 40 332 Ibid p.38.

333 Holmes, The Path of the Law, Harvard Law Review, X (1897), 457.

Oliver Wendell Holmes at official Arlington National Cemetery website

Quoted in the book by Isaac Asimov (writing as "Dr. A"), The Sensuous Dirty Old Man (1971)

Bibliography

BOOK

, Holmes
, Oliver Wendell
, The Collected Works of Justice Holmes (S. Novick, ed.)
, 1995
, University of Chicago Press
, Chicago
, 0226349667,

BOOK

, Alschuler
, Albert W.
, Law Without Values: The Life, Work, and Legacy of Justice Holmes
, 2000
, University of Chicago Press
, Chicago
, 0226015203,

JOURNAL, Frankfurter, Felix, Felix Frankfurter, 1916, The Constitutional Opinions of Justice Holmes, Harvard Law Review, 29, 6, 683–702, 10.2307/1326500,
BOOK

, Kearns Goodwin
, Doris
,
,
, Team of Rivals: The Political Genius of Abraham Lincoln
, Simon & Schuster
, 2005
, New York
,
,
,
, 0743270754,

BOOK

, Novick
, Sheldon M.
, Honorable Justice: The Life of Oliver Wendell Holmes
, 1989
, Little, Brown and Company
, Boston
, 0316613258,

BOOK

, Posner
, Richard A., ed.
, The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr.
, 1992
, University of Chicago Press
, 0226675548,

11th Edition Encyclopædia Britannica (1911)

Collins, Ronald K.L., ed., The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, June 2010)

External links

Oliver Wendell Holmes, Jr., American Jurist
{{gutenberg author| id=Oliver+Wendell+Holmes+(1841-1935) | name=Oliver Wendell Holmes}}
WEB

,weblink
, BUCK v. BELL, 274 U.S. 200 (1927)
, FindLaw
, 2009-07-22,

Holmes' Dissenting Opinion, Abrams vs. United States, 10 November 1919

{{U.S. Supreme Court composition court lifespan| cj=Melville Weston Fuller| years=1888–1910}}{{U.S. Supreme Court composition 1902–1903}}{{U.S. Supreme Court composition 1903–1906}}{{U.S. Supreme Court composition 1906–1909}}{{U.S. Supreme Court composition January–March 1910}}{{U.S. Supreme Court composition March–July 1910}}{{U.S. Supreme Court composition CJ| CJ=White}}{{U.S. Supreme Court composition court lifespan| cj=Edward Douglass White| years=1910–1921}}{{U.S. Supreme Court composition 1910}}{{U.S. Supreme Court composition 1911}}{{U.S. Supreme Court composition 1912–1914}}{{U.S. Supreme Court composition 1914–1916}}{{U.S. Supreme Court composition 1916–1921}}{{U.S. Supreme Court composition CJ| CJ=Taft}}{{U.S. Supreme Court composition court lifespan| cj=William Howard Taft| years=1921–1930}}{{U.S. Supreme Court composition 1921–1922}}{{U.S. Supreme Court composition 1922}}{{U.S. Supreme Court composition 1923–1925}}{{U.S. Supreme Court composition 1925–1930}}{{U.S. Supreme Court composition CJ| CJ=Hughes}}{{U.S. Supreme Court composition court lifespan| cj=Charles Evans Hughes| years=1930–1941}}{{U.S. Supreme Court composition 1930}}{{U.S. Supreme Court composition 1930–1932}}{{jurisprudence}}{{Persondata|NAME= Holmes, Oliver Wendell, Jr.|ALTERNATIVE NAMES=|SHORT DESCRIPTION= United States Army officer|DATE OF BIRTH= March 8, 1841Boston, Massachusetts>Boston, Massachusetts|DATE OF DEATH= March 6, 1935|PLACE OF DEATH= Washington, D.C.}}(Categ]]ory:American Unitarians)Oliver Wendell Holmes, Jr.Oliver Wendell Holmes Jr.올리버 웬들 홈스 2세 אוליבר ונדל הולמס הבן Oliver Wendell Holmes オリバー・ウェンデル・ホームズ・ジュニア Oliver Wendell Holmes, Jr Oliver Wendell Holmes (filho)Холмс, Оливер Уэнделл (Младший)Oliver Wendell Holmes, Jr.Олівер Венделл Холмс молодший 小奥利弗·温德尔·霍姆斯

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