Oliver Wendell Holmes, Jr.
Associate Justice of the Supreme Court of the United States
Term in office
December 8, 1902 – January 12, 1932 Preceded by Horace Gray Succeeded by Benjamin N. Cardozo Nominated by Theodore Roosevelt Born March 8, 1841
Died March 6, 1935
Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served on the Supreme Court of the United States from 1902 to 1932. Noted for his long service, his concise explanations, his pithy opinions, and his deference to the decisions of elected legislatures, he is considered one of the most influential justices in the Court's history.
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.
Civil War experience
During his senior year of college, Holmes enlisted in the Massachusetts militia at the outset of the American Civil War. He saw much action, from the Peninsula Campaign to the Wilderness, and suffered wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. He was mustered out in 1864 as a brevet Lieutenant Colonel. Holmes emerged from the war convinced that government and laws were founded on violence, a belief that he later developed into a positivist view of law and a rejection of romanticism and natural rights theory.
Law practice and state judgeship
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 Dixwell. She fell ill with rheumatic fever shortly after their marriage. Perhaps as a consequence, the couple never had children of their own, but they did adopt and raise an orphaned cousin, Dorothy Upham.
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, 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. This remains the only important work of American jurisprudence written by a practicing attorney. 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 judgeship on a federal court 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 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 a equal footing with employers.
On August 11, 1902, President Theodore Roosevelt named Holmes to the United States Supreme Court on the recommendation of Senator Henry Cabot Lodge, the Senate unanimously confirmed the appointment on December 4, and Holmes took his seat on the Court December 8, 1902. Holmes succeeded Justice Horace Gray, who had retired in July 1902 as a result of illness. Historians believe that an important factor in the appointment was the President's belief that Holmes 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 The Northern Securities Case, a major antitrust prosecution.
Holmes was known for his pithy, short, and frequently quoted opinions. In more than thirty years on the Supreme Court bench he considered the whole range of federal law, and is remembered for prescient opinions on topics as widely separated as copyright, the law of contempt, the anti-trust exemption for professional baseball, and the oath required for citizenship. He is probably most often now recalled as an author of opinions on constitutional law. 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 persons 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 Schenk 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." This remains the test applied by the Supreme Court in cases where an application of an otherwise valid law, is in question.
The following year, in Abrams v. United States, Holmes 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 stinging 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.
Holmes was criticized during his lifetime and after for his philosophical views, which were influenced by Social Darwinism. He saw few restraints on the power of a governing class to enact its interests into law, and predicted that law increasingly would be based upon eugenics and economics, rather than precedent. He wrote 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 with the words, "[t]hree generations of imbeciles are enough." The decision unleashed a national movement to adopt largely racist state laws authorizing eugenic measures.
Holmes was admired by the Progressives of his day who shared his eugenist views and narrow reading of "due process." He regularly dissented when the Court invoked due process to strike down progressive 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. 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 Progressive's ameliorist views.
Holmes served until January 12, 1932, when his brethren on the court, citing his advanced age (Holmes was, at 90, the oldest serving justice in the Court's history), suggested that he step down. He died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday, leaving his residuary estate to the United States government (he had earlier said that "taxes are the price we pay for civilization"). He was buried in Arlington National Cemetery, and is commonly recognized as one of the greatest justices of the U.S. Supreme Court. 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.
Holmes frequently referred to his wartime experiences, and his Memorial Day addresses were among his most famous as he sought to give meaning to the experience for a whole new generation. One quote in particular, from his Memorial Day address before a group of veterans in 1884 in Keene, NH, would help to define the innaugural address and the Presidency of John F. Kennedy 75 years later.
- "...it is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return." 
- "In our youths, our hearts were touched with fire." 
- "We have shared the incommunicable experience of war. We felt, we still feel, the passion of life to its top." 
Holmes opinions on law have also been frequently quoted.
- "The question in every case is whether the words used are used in such circumstances and are of such a nature as to cause a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent."
- "It is only the present danger of an immediate evil and an intent to bring it about that warrants Congress in setting a limit to the expression of opinion."
- "The life of the law has not been logic; it has been experience."
- Dudley-Winthrop Family
- Prediction theory of law
- ^ Quoted in the book by Floyd Abrams, Speaking Freely (2005), Page 66.
- ^ Quoted in the book by Floyd Abrams, Speaking Freely (2005), Page 66.
- ^ Oliver Wendell Holmes Jr., Common Law (1881), Page 1.
- In Our Youth Our Hearts Were Touched With Fire An Address Delivered on Memorial Day, May 30, 1884, at Keene, NH, before John Sedgwick Post No. 4, Grand Army of the Republic.
- A Soldiers Faith Address Delivered on Memorial Day, May 30, 1895, at a meeting called by the Graduating Class of Harvard College.
- Holmes, Oliver Wendell (1995). The Collected Works of Justice Holmes (S. Novick, ed.). Chicago: University of Chicago Press. ISBN 0-226-34966-7.
- Alschuler, Albert W. (2000). Law Without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press. ISBN 0-226-01520-3.
- Novick, Sheldon M. (1989). Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Little, Brown and Company. ISBN 0-316-61325-8.
- Posner, Richard A., ed. (1992). The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr.. University of Chicago Press. ISBN 0-226-67554-8.
- 11th Edition Encyclopędia Britannica (1911)
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