Bad Man from Olympus

As a child, Justice Oliver Wendell Holmes, Jr. (1841-1935), heard his grandmother tell of seeing British troops leave Boston during the Revolution, and today men who were his law clerks are still alive. The son of one of the most famous American writers, he grew up reading Emerson’s essays right off the press and late in life commented on T.S. Eliot, Proust, and Hemingway. In his twenties he fought in the Civil War, in his thirties he wrote perhaps the most important American book on law, in his sixties he was chief justice of Massachusetts, and he served on the United States Supreme Court into the Great Depression.

Holmes was a particularly striking figure in old age, tall and erect, with a full head of white hair, huge moustaches, craggy features, and piercing blue eyes. His appearance and the historical fascination of his heritage and his long life, when added to his impressive accomplishments, made him legendary before he died. “The great overlord of the law and its philosophy,” said Benjamin Cardozo on Holmes’s ninetieth birthday, “the greatest of our age in the domain of jurisprudence and one of the greatest of the ages.” Walter Lippmann wrote that he “wore his wisdom like a gorgeous plume,” and Felix Frankfurter added that his writings belonged in “the slender volume of the literature of all time.” A journalist called him “a Yankee, strayed from Olympus,” and the phrase caught on.¹ President Franklin Roosevelt called at his house for his ninety-second birthday, and stood in the rain by his graveside when he was buried at Arlington National Cemetery.

The Holmes legend was partly an accident, but his influence has endured, and the meaning and value of his life and work are still debated. G. Edward White’s is only the latest of four biographies published in the last six years.² One of the most important contemporary American jurists, Judge Richard Posner, has edited a new anthology of his work, and introduced it with an essay that shows intimate knowledge of its subject. Now Sheldon Novick’s new scholarly edition of Holmes’s nonjudicial writings has arrived. We might call this a revival, except that fascination with Holmes has never waned.

One reason is that he is so revisable. Thus the late Grant Gilmore, for a time Holmes’s authorized biographer, attacked the “myth” that portrayed him as “the tolerant aristocrat, the great liberal, the eloquent defender of our liberties, the Yankee from Olympus.” The real Holmes, he said, was “savage, harsh, and cruel”—but as such “a greater man and a more profound thinker than the mythical Holmes ever was.”³

Gilmore’s wicked Holmes is to American law as Satan is to Paradise Lost, the most memorable character in the story. Yet just as Milton encouraged readers who would claim Satan as not only the starring villain but the secret hero of his epic, history leaves a solid factual basis for both Gilmore’s account and for the heroic Holmes of legend. Both stories are selective, neither is false.

1.

In the heroic story, the young Holmes, raised in the Boston Brahmin culture defined by men like his father, Emerson, and Longfellow, was shaken from their complacencies in his college years by the the emergence of Darwinism. He then joined the Union army as a committed abolitionist and came to manhood as an infantry officer on the battlefields of the Civil War, where he was three times wounded.

After the war, Holmes at first submerged himself in philosophy in the company of such contemporaries as Leslie Stephen and William James, but, required to make a living, finally committed himself to a career in the law. This came during a crisis in the Anglo-American legal system. The old common-law system was undergoing rapid change, but the vague and hortatory jurisprudential theories inherited from Blackstone and other classic legal writers were inadequate guides for the needed reconstruction.

Armed with skeptical and secular inclinations, a powerful mind, a gift for writing, an unlimited appetite for work, and youthful hubris, Holmes set about mastering the technical details of the law, with the ultimate goal of reformulating its theoretical under-pinnings. His project was to replace the prevailing theologically tinged or formalistic legal theories with a modern jurisprudence that drew its inspiration from Darwin and its methods from German historical scholarship and English utilitarianism. He labored for fifteen years, practicing law by day and studying and writing at night, first to master the law’s substance, and then to reimagine it as at once a social instrument and a product of society’s habits, desires, and ideals. The result was his masterpiece, The Common Law (1881), still generally thought the most important work of American legal scholarship. The book presented the main doctrines of criminal law, torts, property, and contracts from the revolutionary perspective that Holmes announced in its famous opening sentences:

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, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed…. In order to know what [the law] is, we must know what it has been, and what it tends to become.

In 1882, Holmes was named to the Supreme Judicial Court of Massachusetts, where he served for twenty years. There he continued to promote his jurisprudential reforms in a series of classic articles which, along with The Common Law, served as the primary inspiration for the functional approach to jurisprudence that has since dominated modern American legal thought. He argued that law should be conceived as a means to the attainment of human ends, that tradition and precedent should be subject to scrutiny and revision, and that judges should admit that they decide debatable cases on the basis of policy, not of precedent or abstract principle.

Bringing this experimental jurisprudence to his work, Judge Holmes confronted the need to adapt American law to an economy transformed by railroads, telegraphs, and large manufacturing corporations. Himself skeptically conservative about economic regulation, he argued that courts should relax traditional conceptions of property rights to allow legislative experiments in government ownership and worker protection. In a pair of classic labor-law dissents, he argued that the right of workers to organize and strike was part of the “free struggle for life,” which should not be “limited to struggles between persons of the same class.”

Partly on the basis of Holmes’s labor opinions, Theodore Roosevelt named him to the Supreme Court in 1902, where he soon began a series of celebrated dissents from decisions invalidating maximum hour, minimum wage, and other statutes protecting workers. Holmes wrote that “the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” and that judges must allow social experiments to go forward in “the insulated chambers afforded by the several states.” He likewise argued for expanded federal powers to regulate the national economy, for example by barring goods made with child labor—“the product of ruined lives”—from interstate commerce. The Constitution, he said, had “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters,” and now “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.” Holmes’s dissents in the cases involving state and federal power over the economy were vindicated in the New Deal court crisis of 1937, and have since formed the basis for modern constitutional law on these subjects.

His modernist jurisprudence also led Holmes to take the lead in developing judicial protections for basic human rights. His dissent in the case of Leo Frank, a Jew convicted of murder in a Georgia court, insisted that federal judges could protect basic due process in state criminal proceedings: “habeas corpus cuts through all forms and goes to the very tissue of the structure…. Mob law does not become due process of law by securing the assent of a terrorized jury.” Again, Holmes’s dissent later became accepted law.

His most enduring judicial achievement was to lay the foundation for the modern American law of free speech. During the wartime anti-German and postwar anti-Communist hysteria in 1919, Holmes dissented in the case of Jacob Abrams, an anarchist sentenced to twenty years in prison for distributing antiwar pamphlets:

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…

Again, his doctrine that speech may only be checked to avert a clear and present danger became our law of free speech, with the Abrams dissent as its classic manifesto.

Holmes was not only a legal theorist and a judge but, as John Dewey said, “one of our great American philosophers,”⁴ though one whose philosophy is found in essays and letters rather than any systematic treatise. He knew the classical and early modern philosophers well, and throughout his life followed the work of contemporaries like Santayana, Bergson, James, Russell, and Whitehead. The two philosophers who came closest to his own ideas were Spinoza and Dewey, and his essays reflect both their naturalism and their acceptance of will and intellect as equal components with matter in the makeup of the cosmos.

He was also a man of immense vitality, wit, and charm, a renowned conversationalist, and a warm and sympathetic friend to a cosmopolitan circle of men and women, young and old, socialists and conservatives, English, Irish, Chinese, Japanese, and Americans (many of the latter Jewish—Holmes had none of the usual Brahmin anti-Semitism). He had many friendships with women, and despite one passionate secret romance in midlife, was happily married for nearly sixty years to Fanny Dixwell Holmes, an artistically talented and witty woman who loved him. They had no children, but in his later years Holmes acted as a mentor to a wide circle of younger intellectuals, many of whom were leading liberals and Progressives, including the lawyers Felix Frankfurter and Learned Hand, the political theorist Harold Laski, the philosopher Morris Cohen, and the economist Richard Ely.

Holmes’s friendships are preserved in his huge correspondence, much of which remains unpublished. His remarkable letters confirm what his more than two thousand judicial opinions and his essays establish, his mastery of English prose. Edmund Wilson judged Holmes’s speeches and essays “as hard and bright as Pater’s flame… perfect, and… undoubtedly enduring.”⁵ The judicial opinions are compressed, tense, dramatic, sometimes obscure. The letters are fluent, racy, witty, and playful. Throughout all are scattered the epigrams with which he enriched the law and the American language: continuity with the past is only a necessity and not a duty; the common law is not a brooding omnipresence in the sky; even a dog distinguishes between being stumbled over and being kicked; certainty generally is illusion, and repose is not the destiny of man.

2.

The opposite story begins with agreement on Holmes’s great rhetorical skills. For it is these, along with his personal charm and his impressive heritage, that are said to have blinded so many to the pernicious nature of his ideas and the defects of his character.

Holmes stated the core of the case against himself when late in life he wrote to a friend: “I lost my humanity with abolition days and in the army.”⁶ A sensitive and imaginative young man who had lived a sheltered life, he was plunged into the first mechanized war, where he experienced death on all sides, three serious wounds (two of them life-threatening), and the lesser horrors of dysentery, mud, sleeplessness, and boredom. Not a natural soldier, he endured all this for three years.

He did so at a price. He came out of the war a hard, ambitious, self-centered man. William James, once his closest friend, was estranged by his “cold-blooded, conscious egotism and conceit,” and described him as “a powerful battery, formed like a planing machine to carve a deep, self-beneficial groove through life.”⁷ His law partner and Harvard colleague James Bradley Thayer, a man generally beloved, found Holmes “sadly wanting in the noblest region of human character—selfish, vain, thoughtless of others.”⁸ Even Holmes’s jurisprudential writings appear as more original than they are because he was so stingy with credit to those whose ideas had influenced him.

The war turned Holmes strongly against his youthful abolitionism, and by extension against all causes based on claims of morality or justice. He left the battlefield believing that nothing could be known with certainty, and that the world was an arena of struggle, whose only verdicts were survival and annihilation. The individual should bet on the likely winners and should help their victory along, but had to recognize that the bet was chancy, grounded, like other judgments, more in background and temperament than in reason. Wisdom meant respect for the inexorable force of impersonal law, and recognition that people would struggle to attain their inevitably conflicting desires and ideals. To live well was to develop and exercise one’s faculties. In life’s battles, the gentleman warrior’s ethic was a do-or-die existentialism:

The faith is true and adorable which leads a soldier to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of campaign of which he has no notion, under tactics of which he does not see the use.

The stronger person or force was fated to success, but no one could know who would in the long run be the stronger. One doctrine Holmes kept from his Puritan ancestors was predestination by a hidden God, although he believed in no conventional religion: “I do in a sense worship the inevitable,” he wrote, “and I see the inevitable everywhere.”⁹

To help bring about the inevitable at the least cost, the law should be made to correspond with “the actual feelings and demands of the community, whether right or wrong.” Notions of the sanctity of life or the dignity of the individual were outmoded; the ultimate principle was “force,” in public as in private life. “If a man is on a plank in the deep sea which will only float one, and a stranger lays hold of it, he will thrust him off if he can. When the state finds itself in a similar position, it does the same thing.”

His respect (verging on awe) for force explains why Holmes supported Progressive social and economic legislation during his judicial career. It represented the demands of the emerging “supreme power in the community.” Privately, he thought most of the supposed reforms were “noxious humbug,” but they were what the masses wanted, however ignorantly. History’s trend toward democracy had given power to what Holmes always called “the crowd,” and so, given his theory of law, his job as a judge was to give the crowd its way. He joked that his epitaph should be: “Here lies the supple tool of power.”¹⁰ Quite consistently during his years on the Supreme Court, Holmes was one of the justices least receptive to the claims of society’s powerless, including aliens and members of racial minorities.¹¹

Also consistently the one social reform project he really believed in was eugenics; it united two of his enthusiams, science and the survival of the fittest. He privately expressed his “profound contempt” for “all socialisms not prepared to begin with life rather than with property and to kill everyone below the standard.”¹² In Buck v. Bell, he upheld the forced sterilization of a poor, unwed mother, under a statute aimed at the feeble-minded: “Three generations of imbeciles are enough,” he wrote of Carrie Buck, her mother, and her daughter. To a friend, he exulted: “I felt that I was getting near to the first principle of real reform.”¹³ (The science turned out to be fraudulent in application as well as theory; later evidence suggested that neither Carrie nor her daughter was actually retarded.)¹⁴

In light of his power-worship, how are we to explain Holmes’s free speech dissents? He differed from most determinists in thinking that the ruling “force” in the world over the long run was the force of ideas. And freedom of speech would allow natural selection to work its way out in the realm of ideas. But the memorable rhetoric of Holmes’s First Amendment opinions tends to obscure the very limited protection they offered to dissenters. Jacob Abrams and his fellow anarchists were, as Holmes said, “poor and puny anonymities,” so it did not cost the majority anything to let them chatter on. When a more potent challenger to the powers that be, Eugene Debs, was indicted for no more than praising draft resisters in an antiwar speech, Holmes wrote the opinion for the Court affirming his conviction.

In the best summary of his jurisprudence, his lecture “The Path of the Law,” Holmes told law students, “If you want to know the law and nothing else, you must look at it as a bad man”; and speculated that it might be desirable if “every word of moral significance could be banished from the law altogether.” That would be a law with no duties, rights, or wrongs; no conception of good or bad faith, of reasonable or unreasonable conduct; and no notion of justice or injustice. It is a legal vision that might indeed please one of the indifferent gods, looking down from Olympus.

3.

Each of the two stories about Holmes is factual, but both can’t be fully true. The challenge of Holmes scholarship is to explain if not reconcile the differing accounts. The best commentators try, but most of those who write about him lean strongly either pro (Yankee from Olympus) or con (Bad Man). Of the books under review here, the two editors, Sheldon Novick and Judge Richard Posner, are pro, while the biographer, G. Edward White, is con, but with a twist.

Professor Novick, one of Holmes’s best biographers, has now edited the first complete edition of his published work. Holmes scholars will be grateful for his careful labor in restoring the original texts of the speeches and essays after the corruptions introduced by intervening editors. But through no fault of Novick’s, his edition, confined by its publisher’s plan to the nonjudicial writings that Holmes meant for publication, gives us a curiously distorted version of the Justice as a thinker and writer.

Volume Two consists entirely of Holmes’s editorial footnotes to Kent’s Commentaries, his apprentice drudge-work as a legal scholar, and though it is useful to have these collected, they are of limited interest even to specialists. Volume One has Holmes’s juvenilia and his earliest legal writings, including a few not previously attributed to him. A number of these are important, but almost everything that really counts is in Volume Three, which reprints The Common Law and the essays preparatory to it, the later law review articles, and the occasional and philosophical speeches and essays. This still leaves out Holmes’s more than two thousand judicial opinions, from which Novick is now editing a two-volume selection,¹⁵ and it also omits all the letters, which are among Holmes’s most engaging and accessible writings, as well as being essential sources for the scholarly study of his work. Novick largely refrained from annotating the (often very obscure) writings that are included, but instead introduced them with a long interpretative and critical essay that adds his own lively and opinionated contribution to the disputes over Holmes’s legal thought.

Professor Novick is of the party that stresses Holmes’s devotion to hard-edged nineteenth-century scientific positivism, and particularly to Darwinian ideas of natural selection. In his old age, Holmes did write that “science was at the bottom” of the change in the intellectual world that separated his generation from his father’s. But in the same letter he said that it was Emerson and Ruskin who had “set me on fire.”¹⁶ One must always read Holmes’s scientistic pronouncements remembering that he was also a Romantic. His skepticism was of the Wordsworthian kind that revels in the sublimity of the unknown, and when he said law had been and likely always would be based largely in “experience,” he was invoking the Romantic historicist idea of a collective unconscious made up of custom and tradition that could never be fully captured by articulate reason. While recognizing the Romantic element in Holmes’s background and temperament, Novick (along with many other commentators) gives it no significant place in his legal thought.

Judge Posner’s Essential Holmes fulfills the promise of its title. Though it, too, could have used more annotation, it is the best source for the reader who wants a first serious acquaintance with Holmes.¹⁷ All his basic ideas are here, and all his different styles. There are substantial excerpts from The Common Law, the important jurisprudential and philosophical essays in full, the best-known judicial opinions plus a good selection of more obscure ones, a number of the most interesting occasional speeches, and, most welcome, a generous and varied sampling of the letters. The topical arrangement is intelligent, and Posner’s introductory essay is even more lively and opinionated than Novick’s.

Posner stresses Holmes’s importance as a writer and cultural figure as well as a jurist, and notes the striking similarities between his views and those of another great writer of a very different background and temperament, Nietzsche. Both were of the generation that experienced in its youth the influence of Darwin (as with Nietzsche’s “death of God”); both were much influenced by Emerson, and like him were unsystematic and “literary” philosophers; both produced a post-Darwin version of the Emersonian dialectic of Fate and Freedom—Nietzsche’s amor fati, and vitalist Will to Power; Holmes’s awe in the face of “the inevitable,” and his ideal of strenuous pursuit of the unattainable. Both respected power and condemned democratic egalitarianism as a sentimental concession to weakness.¹⁸

None of the four recent biographies of Holmes is fully satisfactory, but G. Edward White’s subtle, thoughtful, and careful work seems to me the best of them. Novick’s biography told the story better, and got closer to Holmes’s idiosyncratic way of looking at the world, but White, a distinguished historian of legal thought, is the first of the four to deal relatively thoroughly (though quite critically) with Holmes as a thinker.

In contrast with past debunkers of the Holmes legend, White does not portray Holmes as a dramatic villain or a formidable historical influence for evil. For example, he takes care to put Holmes’s often horrifying pronouncements on eugenics into historical context, noting that before the Nazis permanently discredited them, similar ideas (if not usually so brutally expressed) were widely held among liberal reformers. White’s Holmes is no Satan, but rather an ingenious and driven egotist, with the good luck to find friends late in life (above all Felix Frankfurter) who were skilled and influential public-relations experts interested in promoting his legend.

White portrays Holmes the judge as gaining satisfaction from his constant effort to inject a little irrelevant art and philosophy into what otherwise would be the worthy but mundane job of finally settling troublesome disputes and holding life’s game to society’s arbitrary rules. White was once a law clerk to, and then an admiring biographer of, Earl Warren, a warm, humane, and unintellectual judge who wholeheartedly pursued his own conception of fairness and social justice from the bench, and he clearly prefers his former chief’s expansive judicial philosophy to Holmes’s austere one.

Like earlier critics, White turns Holmes’s linguistic virtuosity against him, but again with a twist. His Holmes is not a word magician who manages to make a chillingly cynical might-makes-right philosophy sound like a charmingly tolerant skepticism. Rather he is an intellectually eclectic and often confused literary gadfly who tends to get carried away from any clear line of thought by his intoxication with his own words—more mastered by language than mastering it.

White’s diminished portrait introduces another plausible candidate into the struggle for the Holmes legacy. He is most persuasive when he suggests that Holmes’s earlier admirers overrated his contributions as a judge. But as a legal thinker, Holmes had more substance than White allows. Though he rejected the term, and disliked William James’s religious uses of the “will to believe,” Holmes brought American philosophical pragmatism to the law. It was no accident that across the temperamental and political gulf that divided them, John Dewey and Holmes felt such deep intellectual kinship. Both men believed that the dominant tendencies of late-nineteenth-century thought, Romantic historicism, and the ascendancy of natural science, required not an either/or choice but a synthesis. Each was uniquely able in his separately effective way to articulate such a synthesis—Dewey, awkwardly, systematically, and at length across the range of traditional philosophical concerns from metaphysics to aesthetics, Holmes in memorable verbal flashes and with primary concentration on the law. None of the recent biographies captures this aspect of Holmes’s thought.

The best study of Holmes’s ideas remains the two volumes of Mark Howe’s thirty-year-old biography, left unfinished by his death. Better than anyone since, Howe portrayed Holmes’s ability to encompass the opposed reformist and traditionalist elements in the wider intellectual world around him, and to integrate these with the analytical jurist’s concern for formal rationality.

But even Howe did not pay enough attention to Holmes the writer, treating the famous style only as a kind of felicitous decoration to the thought. In truth, though, Holmes’s way of writing tended to conceal what he had to say. The substance of his jurisprudence was complex and compromised: he described law as an unstable compound of logic, tradition, and policy, influenced by geometric yearnings, by memory, and by hope. A thinker very much of this world, he wrote like an angel or a devil, a being beyond compromise who inscribes thoughts in words of fire. No wonder he continues to provoke dispute and challenge understanding.