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SUPREME COURT OF THE U.S. > #58 - ASSOCIATE JUSTICE OLIVER WENDELL HOLMES, JR

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message 1: by Bentley, Group Founder, Leader, Chief (last edited Jan 20, 2015 08:29PM) (new)

Bentley | 44168 comments Mod
This thread is dedicated to the discussion of Associate Justice Oliver Wendell Holmes, Jr. (58) and all related subjects.

Biography

Oliver Wendell Holmes, Jr. came from an illustrious family and his contributions throughout his life added distinction to an otherwise distinguished group. Holmes graduated from Harvard and was selected class poet in 1861. He was commissioned a second lieutenant in the Massachusetts Twentieth Volunteers. Holmes was wounded three times in the war. He carried one of those bullets in his body until his death at the age of 93.

He left military service as a captain and then return to Harvard, this time to study law. After graduation from the Law School, he entered private practice but soon returned to his alma mater to teach constitutional law, lecture, and write. At 40, he published his treatise, The Common Law. Holmes found academic life incomplete, however, so he accepted appointment to the Massachusetts Supreme Court where he served for 20 years.

President Theodore Roosevelt thought Holmes's views compatible with his own, so he nominated him in 1902 for a position on the Supreme Court. The Senate confirmed the appointment without objection two days later.

Holmes was a key player on four major courts: Fuller, White, Taft and Hughes. In 25 of his 29 years, Holmes never missed a session of the Court. He walked from his home to the Court daily, a distance of some 2 1/2 miles. By endurance alone, Holmes qualifies as the Cal Ripkin Jr. of the nation's highest bench.

By temperament, Holmes asserted a pragmatic view of the law. He balanced his deep skepticism in human nature against the stabilizing rule of law. Yet he treasured liberty in the same spirit as the playwright Robert Bolt envisioned in Sir Thomas More, who was executed in 1535. More, like Holmes, put his trust in the law. His opinions will endure largely because he kept them short and studded many with vivid phrases. This left little work for his law clerks. One of them, Alger Hiss, spoke about his responsibilities when he worked for Holmes in 1929.

Near the end of his long career, Holmes reflected on life and work and the final moments which he knew were soon approaching.

Personal Information

Born:
Monday, March 8, 1841

Died:
Wednesday, March 6, 1935

Childhood Location:
Massachusetts

Childhood Surroundings:
Massachusetts

Position:
Associate Justice

Seat
3

Nominated By:
Theodore Roosevelt

Commissioned on:
Thursday, December 4, 1902

Sworn In:
Monday, December 8, 1902

Left Office:
Tuesday, January 12, 1932

Reason For Leaving:
Retired

Length of Service:
29 years, 1 month, 4 days

Home:
Massachusetts



Source:
http://www.oyez.org/justices/oliver_w...


message 2: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44168 comments Mod
Alger Hiss Remembers Associate Justice Oliver Wendell Holmes, Jr.

Audio: http://www.oyez.org/sites/default/fil...


message 3: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44168 comments Mod
Stephen Breyer - Do you have a Legal Philosophy?

Stephen Breyer speaks of Associate Justice Oliver Wendell Holmes, Jr.

Source: for all of the above - Big Think

Video:

http://bigthink.com/videos/do-you-hav...

Transcript
I mean Holmes, of course, is a very great judge. Because he saw what I admired in him, and what people do admire in him, is he said, “Look. It’s not a question of a few people dictating to others. It is a question of inspiring, or leading, or getting others themselves to resolve their problems. Sometimes when they resolve their problems, they run up against what he called a “can’t help”. He said a can’t help . . . I have a can’t help when I just have to say, “My god. This is wrong.” And we’ve seen a few of those. So it’s like being under pressure. It’s like you want these . . . It’s not my decision. It’s not my decision. It’s their decision. They’ve got to do it. They’ve gotta work this out. I can give advice, but I can’t tell anybody what to do. And then you run up against a can’t help. You can’t do that. You can’t do that. You can’t put those people in prison without any cause. You can’t do this kind of thing. It’s just too much, you see . . . speech, religion, whatever, I see those things in the Constitution. So I think it’s a . . . and Holmes was influenced by what I think of as the late 19th Century, early 20th Century American pragmatist. Other pragmatists are Henry James, Purse, and . . . There’s a pretty good book called “The Metaphysical Club”. I don’t know if you’ve seen it. Very good. And they describe . . . He describes a people like that time. And then I think of San Francisco, which was a cooperative. Western . . . it’s western. It’s open. It’s cooperative. It’s people of all walks of life getting together and trying to figure out how to solve their problems. And I think of when I was growing up back in San Francisco. You said what was the world supposed to be like? Well the world, in a way, that Dean Atchison created . . . or helped create. That was a world which was going to be a world where democracy would spread; where people’s basic rights would be guaranteed; where there would be free trade. Not totally free. The mixed economy, you see? Regulated competitive. Not communism. Not les a faire capitalism, but there would be something in between there where you’d take the advantages of free markets but regulate them so they don’t get out of control. And there would be international organizations whereby people could resolve their international disputes. So you say put that . . . say pragmatic. The pragmatic . . . Pragmatic is a . . . Pragmatism, American pragmatism . . . Henry James and Purse and those people, and Cline later on, and the philosophers . . . It’s not just do whatever is good. It’s not just look out at each decision and try to maximize whatever is good. It is to try to create systems, rules, organizations, methods of cooperation that you see over time will tend to push societies towards what is better. I mean when he talked about truth – this may be more than you want to know – but when he talked about truth, James and Purse were not saying that something is true because it works. What they were saying is that something is true because it’s part of a total system. And that total system works better for people than some alternative system would. Recorded on: 7/5/07


message 4: by Peter (new)

Peter Flom Here is a good book about one of Holmes' lasting contributions to American law: A revision of what "free speech" means.

The Great Dissent How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy by Thomas Healy(no image).

SYNOPSIS
A gripping intellectual history reveals how conservative justice Oliver Wendell Holmes became a free-speech advocate and established the modern understanding of the First AmendmentThe right to express one’s political views seems an indisputable part of American life. After all, the First Amendment proudly proclaims that Congress can make no law abridging the freedom of speech. But well into the twentieth century, that right was still an unfulfilled promise, with Americans regularly imprisoned merely for protesting government policies. Indeed, our current understanding of free speech comes less from the First Amendment itself than from a most unlikely man: the Supreme Court justice Oliver Wendell Holmes. A lifelong conservative, he disdained all individual rights. Yet in 1919, it was Holmes who wrote a court opinion that became a canonical statement for free speech as we know it.

Why did Holmes change his mind? That question has puzzled historians for almost a century. Now, with the aid of newly discovered letters and memos, the law professor Thomas Healy reconstructs in vivid detail Holmes’s journey from free-speech skeptic to First Amendment hero. It is the story of a remarkable behind-the-scenes campaign by a group of progressives to bring a legal icon around to their way of thinking—and a deeply touching human narrative of an old man saved from loneliness and despair by a few unlikely young friends.

Beautifully written and exhaustively researched, The Great Dissent is intellectual history at its best, revealing how free debate can alter the life of a man and the legal landscape of an entire nation.


message 5: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44168 comments Mod
That sounds like a great book Peter - thank you so much for the add.


message 6: by Francie (new)

Francie Grice The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes

The Justice from Beacon Hill The Life and Times of Oliver Wendell Holmes by Liva Baker by Liva Baker(no photo)

Synopsis:

From Publishers Weekly

A popular legend in his lifetime, Supreme Court justice Oliver Wendell Holmes (1809-1894) was a hero to progressives and liberals. Yet according to Baker, biographer of Felix Frankfurter, Holmes's "civil libertarian outbursts" were rare and were less libertarian than many assume; his mixed civil rights record during his three decades on the Court (1902-1932) "leaned toward support of Southern customs."

In an engrossing, definitive biography Baker strips away the layers of mythology cloaking the "Great Dissenter" to depict an insular, aloof snob who only fitfully acted on his professed belief that the law should respond to ever-changing social and economic pressures. Rather than preserving a model of Olympian detachment, Baker limns an ambitious egotist who strived to outdo his famous poet-physician father, and a romantic rover whose transatlantic, extramarital involvement with Lady Clare Castletown of Ireland left him an "emotional wreck." Photos.
Copyright 1991 Reed Business Information, Inc.


message 7: by Jill (new)

Jill Hutchinson (bucs1960) The "great dissenter", Justice Holmes was a national treasure who sat on the bench until he was 90 years of age. This is his iconic book on American judicial theory.

The Path of the Law

The Path of the Law (Little Books of Wisdom) by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.

Synopsis:

Oliver Wendell Holmes, Jr. (1841-1935) is, arguably the most important American jurist of the twentieth century, and his essay The Path of the Law, first published in 1898, is the seminal work in American legal theory. This volume brings together some of the most distinguished legal scholars from the United States and Canada to examine competing understandings of The Path of the Law and its implications for contemporary American jurisprudence. For the reader's convenience, the essay is republished in an Appendix. The book will be of interest to professionals and students in the philosophy, history, economics, and sociology of law.


message 8: by Bentley, Group Founder, Leader, Chief (new)

Bentley | 44168 comments Mod
One of my favorites


message 9: by Jerome, Assisting Moderator - Upcoming Books and Releases (new)

Jerome | 4303 comments Mod
Oliver Wendell Holmes, Jr.: Civil War Soldier, Supreme Court Justice

Oliver Wendell Holmes, Jr. Civil War Soldier, Supreme Court Justice by Susan-Mary Grant by Susan-Mary Grant (no photo)

Synopsis:

The man Franklin Delano Roosevelt once called the greatest living American, and who legal scholars are apt to term the Great Dissenter, Oliver Wendell Holmes, Jr., was born in Massachusetts, the son of a doctor and author. From the antebellum era through the First World War and into the New Deal years, Holmes' life and career as a Supreme Court Justice span an eventful period of American history, and his decisions shaped the country. The argument of his most famous ruling, Schenck vs. United States (1919), in which he established that the First Amendment did not protect an individual if they posed a clear and present danger to society, is familiar to most Americans.

In this concise book, Susan-Mary Grant puts Holmes' life in national context with a focus on an individual whose perspective on both law and life was, like that of his nation, ultimately both confirmed and constrained by conflict. With a selection of primary documents including Holmes' most important decisions, letters from his Civil War diary, extracts from speeches, and his obituary, Oliver Wendall Holmes Jr. introduces students of U.S. and legal history to a game-changing figure.


message 10: by Francie (new)

Francie Grice Oliver Wendell Holmes, Jr.: Civil War Soldier, Supreme Court Justice

Oliver Wendell Holmes, Jr. Civil War Soldier, Supreme Court Justice by Susan-Mary Grant by Susan-Mary Grant (no photo)

Synopsis:

The man Franklin Delano Roosevelt once called the greatest living American, and who legal scholars are apt to term the Great Dissenter, Oliver Wendell Holmes, Jr., was born in Massachusetts, the son of a doctor and author. From the antebellum era through the First World War and into the New Deal years, Holmes' life and career as a Supreme Court Justice span an eventful period of American history, and his decisions shaped the country. The argument of his most famous ruling, "Schenck vs. United States" (1919), in which he established that the First Amendment did not protect an individual if they posed a clear and present danger to society, is familiar to most Americans.

In this concise book, Susan-Mary Grant puts Holmes' life in national context with a focus on an individual whose perspective on both law and life was, like that of his nation, ultimately both confirmed and constrained by conflict. With a selection of primary documents including Holmes' most important decisions, letters from his Civil War diary, extracts from speeches, and his obituary, Oliver Wendall Holmes Jr. introduces students of U.S. and legal history to a game-changing figure."


message 11: by Francie (new)

Francie Grice After the Civil War: The Heroes, Villains, Soldiers, and Civilians Who Changed America

After the Civil War The Heroes, Villains, Soldiers, and Civilians Who Changed America by James Robertson by James Robertson James Robertson

Synopsis:

Returning to the turbulent days of a nation divided, best-selling author and acclaimed historian James Robertson explores 70 fascinating figures who shaped America during Reconstruction and beyond. Relentless politicians, intrepid fighters, cunning innovators—the times called for bold moves, and this resilient generation would not disappoint. From William Tecumseh Sherman, a fierce leader who would revolutionize modern warfare, to Thomas Nast, whose undefeatable weapon was his stirring cartoons, these are the people who weathered the turmoil to see a nation reborn. Following these extraordinary legends from the battle lines to the White House, from budding metropolises to the wooly west, we re-discover the foundation of this great country.


message 12: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (last edited Jun 14, 2017 11:20AM) (new)

Lorna | 1925 comments Mod
Justice Oliver Wendell Holmes: Law and the Inner Self

Justice Oliver Wendell Holmes Law and the Inner Self by G. Edward White by G. Edward White (no photo)

Synopsis:

By any measure, Oliver Wendell Holmes, Jr., led a full and remarkable life. He was tall and exceptionally attractive, especially as he aged, with piercing eyes, a shock of white hair, and prominent moustache. He was the son of a famous father (Oliver Wendell Holmes, Sr., renowned for "The Autocrat of the Breakfast Table"), a thrice-wounded veteran of the Civil War, a Harvard-educated member of Brahmin Boston, the acquaintance of Longfellow, Lowell, and Emerson, and for a time a close friend of William James. He wrote one of the classic works of American legal scholarship, The Common Law, and he served with distinction on the Supreme Court of the United States. He was actively involved in the Court's work into his nineties.

In Justice Oliver Wendell Holmes, G. Edward White, the acclaimed biographer of Earl Warren and one of America's most esteemed legal scholars, provides a rounded portrait of this remarkable jurist. We see Holmes's early life in Boston and at Harvard, his ambivalent relationship with his father, and his harrowing service during the Civil War (he was wounded three times, twice nearly fatally, shot in the chest in his first action, and later shot through the neck at Antietam). White examines Holmes's curious, childless marriage (his diary for 1872 noted on June 17th that he had married Fanny Bowditch Dixwell, and the next sentence indicated that he had become the sole editor of the American Law Review) and he includes new information on Holmes's relationship with Clare Castletown. White not only provides a vivid portrait of Holmes's life, but examines in depth the inner life and thought of this preeminent legal figure. There is a full chapter devoted to The Common Law, for instance, and throughout the book, there is astute commentary on Holmes's legal writings. Indeed, White reveals that some of the themes that have dominated 20th-century American jurisprudence—including protection for free speech and the belief that "judges make the law"—originated in Holmes's work. Perhaps most important, White suggests that understanding Holmes's life is crucial to understanding his work, and he continually stresses the connections between Holmes's legal career and his personal life. For instance, his desire to distinguish himself from his father and from the "soft" literary culture of his father's generation drove him to legal scholarship of a particularly demanding kind.

White's biography of Earl Warren was hailed by Anthony Lewis on the cover of The New York Times Book Review as "serious and fascinating," and The Los Angeles Times noted that "White has gone beyond the labels and given us the man." In Justice Oliver Wendell Holmes, White has produced an equally serious and fascinating biography, one that again goes beyond the labels and gives us the man himself.


message 13: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 1925 comments Mod
The Most Powerful Dissent in American History
A smart new book reveals precisely how and why Oliver Wendell Holmes changed his mind about the first amendment.


Library of Congress

If there is a more relevant or powerful passage in American law, I am not aware of it. Relevant because it expressed a universal concept -- free trade in ideas -- that 125 years after the Constitution was ratified still had not yet taken hold in our democracy. Powerful because it went beyond legal precepts to a fundamental fact of human existence: We all make mistakes. We all have good opinions and bad ones. None of us are right all the time. All of us at one point or another have to respect what someone else says. And life is an experiment from the moment we wake in the morning until the moment we lay our heads down at night.

It's a passage written 94 years ago that both explains and preserves our op-ed pages and the Internet, talk-radio shows, and blogs, in the brilliant blending of two American institutions that were not always destined to go together: the free market and free speech. It's a passage that both acknowledges human weakness and strives to master it, that recognizes the roiling diversity of American thought and seeks to make something clear and profound from it. From United States Supreme Court Justice Oliver Wendell Holmes in his dissent in Abrams v. United States:

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. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care wholeheartedly for the result, or that you doubt either your power or your premises.

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct 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, and that truth is the only ground upon which their wishes safely can be carried out.

That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. 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, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.


Of course, the story of free speech in America neither begins nor ends with Abrams. But it is a clear pivot point. In that 1919 case, a dispute decided one year minus one day after the end of the first "war to end all wars," the United States Supreme Court sustained the convictions of five Russian-born men who were prosecuted under the Espionage Act of 1917, as it had been amended by the Sedition Act of 1918, for "provoking and encouraging" resistance to the government's war efforts (and its hostile maneuvers toward Russia) through a series of pamphlets. 

Such prosecutions would be unthinkable today, not because modern officials embrace criticism more bravely than their predecessors but because we have come as a nation and as a people to acknowledge that the First Amendment's protections are (and ought to be) especially stout when it comes to dissent about the public workings of government. And that nearly universal acknowledgment, which has survived America's four major wars since World War I and guides the way we both conduct business and handle our own personal affairs, was born in Justice Holmes' dissent. 

Just in time for your August beach reading, Thomas Healy, a former federal appeals court law clerk and reporter for The Baltimore Sun, has written an excellent book about how Justice Holmes, perhaps the most famous and influential justice of all time, came to write this passage -- and came around, at last, to a rousing defense of the First Amendment. Titled The Great Dissent: How Oliver Wendell Holmes Changed His Mind-- and Changed the History of Free Speech in America, the book is a fascinating glimpse into an art that seems lost in law and politics today: the art of changing one's mind.

In meticulous detail, Healy tells us how the great jurist, who had staunchly upheld criminal convictions in free speech cases just months before, changed his mind in Abrams. He changed it because of an intense lobbying effort by his political friends and fellow judges. He changed it because he had been reading the work of legal and political philosophers in Europe, both living and dead. He changed it because he came gradually to realize how broadly the Justice Department was relying upon federal statutes to punish even that dissent which was obviously unlikely to undermine the government's ability to function.

Read the remainder of the article at:
https://www.theatlantic.com/national/...

Other:

The Great Dissent How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America by Thomas Healy by Thomas Healy (no photo)

Source: The Atlantic


message 14: by Jerome, Assisting Moderator - Upcoming Books and Releases (last edited Oct 22, 2018 02:51AM) (new)

Jerome | 4303 comments Mod
An upcoming book:
Release date: May 28, 2019

Oliver Wendell Holmes: A Life in War, Law, and Ideas

Oliver Wendell Holmes A Life in War, Law, and Ideas by Stephen Budiansky by Stephen Budiansky Stephen Budiansky

Synopsis:

Oliver Wendell Holmes escaped death by a fraction of an inch at the Battle of Ball’s Bluff and Antietam. Thereafter he lived with unwavering moral courage, unremitting scorn for dogmas, and insatiable intellectual curiosity. As a pioneering legal scholar, Holmes revolutionized the understanding of common law by showing how it always evolved to meet the changing needs of society.

Named to the Supreme Court by Theodore Roosevelt at age 61, he served for nearly three decades, writing a series of famous, eloquent, and often dissenting opinions that would prove prophetic in securing freedom of speech, protecting the rights of criminal defendants, and putting an end to the Court’s reactionary resistance to social and economic reforms.

Based on previously unpublished letters and records, Oliver Wendell Holmes offers the fullest portrait yet of this pivotal American figure, whose zest for life, wit, and intellect left both a profound legacy in law and Constitutional rights, and an inspiring example of how to lead a meaningful life.


message 15: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 1925 comments Mod
Thank you Jerome.


message 16: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 1925 comments Mod
The Many Contradictions of Oliver Wendell Holmes


Oliver Wendell Holmes in Rock Creek Park, Washington, D.C. Credit...Harvard Law School

By NOAH FELDMAN May 28, 2019

OLIVER WENDELL HOLMES
A Life in War, Law, and Ideas

By Stephen Budiansky

This year is a propitious time for Stephen Budiansky’s new biography of Justice Oliver Wendell Holmes Jr. Exactly a century ago, dissenting in the case of Abrams v. United States, Holmes invented the metaphor of the marketplace of ideas, single-handedly laying the groundwork for the modern constitutional protection of freedom of speech. A year later, writing for the Supreme Court’s majority in Missouri v. Holland, Holmes inaugurated the metaphor of the living Constitution. Such a constitution should properly be interpreted “in the light of our whole experience, and not merely in that of what was said a hundred years ago.”

Not bad for a man who was already 78 years old in 1919 — and who had been three times wounded in the Civil War, escaping an early death by just inches. When Holmes wrote in the Missouri case that it had cost the framers’ successors “much sweat and blood to prove that they created a nation,” it was his own blood and that of his closest friends that he had in mind.

Holmes is the second most influential justice ever to have graced the bench, after Chief Justice John Marshall, who first got the court to overturn laws and set the body on its long path to constitutional supremacy. Measured by public name recognition, Holmes may even beat Marshall.

Budiansky’s “Oliver Wendell Holmes” is a lively, accessible book, retelling the story of its subject’s life and work for a generation that knows Holmes was important but not why. Yet this biography suffers from its refusal to grapple with the stubborn fact that Holmes was, and remains, a deeply contradictory figure.

The justice is remembered today primarily for his dissenting opinions arguing that judges should not impose their policy preferences by finding unwritten rights in the Constitution. But Holmes spent the prime of his life in the library researching the English common law — and his most important takeaway was that judges had always made the law on the basis of their policy judgments.

Famous for defending Progressive-era wage and hour regulations against laissez-faire judicial ideology, Holmes was himself a firm believer in social Darwinism. In the notorious case of Buck v. Bell, the justice upheld forced sterilization, writing that “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.” In words Holmes himself gleefully described in a private letter as “brutal,” he concluded, “Three generations of imbeciles are enough.”

Revered for his contributions to First Amendment jurisprudence, Holmes nonetheless denigrated those whose views he would protect as “poor and puny anonymities.” He insisted that “persecution for the expression of opinions seems to me perfectly logical.” He defended free speech as “an experiment, as all life is an experiment.”

Even Holmes’s personal life was problematic. Married to Fanny Bowditch Dixwell for more than 50 years, he loved and assiduously pursued a series of young, beautiful women on both sides of the Atlantic. As Budiansky shows, the handsome Holmes maintained decades of correspondence with several of the women, regularly visited them abroad without his wife and displayed their photographs in his home study. Budiansky reads Holmes’s letters to mean that Holmes never had sex with any of them. He and his wife were childless.

One key to unraveling the Holmes enigma is to notice that in 1910, after almost 20 years on the Massachusetts Supreme Court and eight on the United States Supreme Court, Holmes was still unknown outside legal circles. Budiansky quotes Chief Justice Edward Douglass White’s comment to Holmes that “he didn’t know any man in the country who had so little reputation in proportion to what he had done.”

By 1926, Holmes was on the cover of Time, hailed as the leading judge of the age. What happened in the meantime to make Holmes into a legend may be summarized in two words: Felix Frankfurter. As a young Progressive government lawyer and then as a Harvard law professor, Frankfurter wanted a symbol who would embody rejection of the then-libertarian-conservative Supreme Court majority.

Holmes, the Boston Brahmin war veteran with the military mustache, was a hero from central casting — and usefully different from nearly all Frankfurter’s left-wing allies, like the Jewish Progressive Louis Brandeis, who would ultimately join Holmes on the court. The image Frankfurter and others created is captured in the title of a popular Holmes biography written by Catherine Drinker Bowen and published in 1944: “Yankee From Olympus.”

Frankfurter courted Holmes, cajoled him and surrounded him with brilliant young lawyers who told him he was the greatest American judge ever, and maybe in the whole Anglo-American legal tradition. Holmes responded to the treatment with a steadily increasing line of important opinions that advanced Progressive causes, all the while eschewing Progressive beliefs. But if Frankfurter’s goals in lionizing Holmes are easy to discern, the same is not true of Budiansky’s biography, which self-consciously rejects critical studies of the justice over the past 40 years in favor of a worship that can verge on apologetics.

This Holmes is in any event a fighter. Budiansky, a prolific historian and journalist, devotes more than 50 pages to Holmes’s Civil War career, including diagrams of battlefield movements. This material has not been dealt with in the same detail in previous biographies. These pages are exciting and well written, their subject presumably more to Budiansky’s taste than the mere work of the law, to which Holmes devoted the next 71 years until he died at 94.

Budiansky’s warrior Holmes is not permitted to be an intellectual, despite devoting a decade of his life to a work of dense scholarship, his pathbreaking book, “The Common Law.” He must share Budiansky’s outspoken contempt for academics, despite having sought and accepted a professorship at Harvard Law School, resigning only because he was appointed to the bench. This Holmes could not possibly have had sex with one or more other young men, as an earlier biographer, Sheldon Novick, has suggested. He cannot have had a troubled marriage. His law clerks cannot have been surrogate sons for the childless justice. Holmes’s enthusiastic embrace of eugenics must be the product of his time, not an expression of the distinctive contempt that he considered as proof of his own tough-mindedness.

Budiansky’s playing down of the contradictions that make Holmes infuriating and interesting is particularly mystifying because he has dived into the sea of Holmes’s voluminous writings and even contributed to Holmes scholarship. Budiansky goes through the mass of Holmes’s state court opinions and tells previously untold tales of Holmes’s several years of experience as a trial judge riding circuit through the state.

Budiansky also does a fine job of telling the story of Holmes’s gradual move to embracing free speech under the influence of Judge Learned Hand and the Harvard Law School professor Zechariah Chafee. Along the way, Budiansky makes good (if grudging) use of Louis Menand’s “Metaphysical Club,” relying on its brilliant aperçu that the war made Holmes “lose his belief in beliefs.”

More:

Oliver Wendell Holmes A Life in War, Law, and Ideas by Stephen Budiansky by Stephen Budiansky Stephen Budiansky
The Common Law by Oliver Wendell Holmes Jr. by Oliver Wendell Holmes Jr. Oliver Wendell Holmes Jr.
The Metaphysical Club by Louis Menand by Louis Menand Louis Menand

Source: The New York Times


message 17: by Andrea (new)

Andrea Engle | 1142 comments O, Lorna, my TBR List just keeps on growing ... Oliver Wendell Holmes, Jr., sounds like a fascinating man. Thank you for all the input!
Regards,
Andrea


message 18: by Lorna, Assisting Moderator (T) - SCOTUS - Civil Rights (new)

Lorna | 1925 comments Mod
Thank you, Andrea, it was a wonderful book about this most interesting man. I hope that you enjoy it.


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