The Many Contradictions of 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.”

It may simply be that Budiansky is taken in by Holmes’s distinctive version of pragmatism — the kind of philosophy that insists it isn’t really philosophy at all. Holmes mined vast deposits of romantic irony, aggressively displaying detached self-skepticism while secretly expecting the attuned reader to grasp his aspiration to be not merely a judge, but a thinker of the first rank. If you don’t see Holmes the ironist, you see only Holmes’s poses, not the complexity that lay beneath.

And if Budiansky can’t quite explain why Holmes, whose scholarship showed that judges make law, got famous for arguing that judges shouldn’t make constitutional law, that isn’t entirely the author’s fault. Contradiction is always hard to resolve. Holmes gloried in the idea that judges should reason from concrete circumstances and “felt needs,” not abstract principles. The same dictum goes for biographers. Holmes’s life, like that of the law, was not made of logic, but of experience.

Noah Feldman is the Felix Frankfurter professor at Harvard Law School, a columnist for Bloomberg Opinion and the host of a new podcast, Deep Background, on Luminary.

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