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Making Sense of Oliver Wendell Holmes’ Controversial Legacy


Oliver Wendell Holmes (1841-1935) is often said to be up there with John Marshall as one of the greatest justices of the United States Supreme Court. Many biographies have been written about him; what could another possibly add?

Well, Oliver Wendell Holmes: A Life in War, Law, and Ideas is a graceful account that informs general readers in areas that may have escaped them—the jurist as a son of Unitarian Boston, the jurist as a soldier—while not neglecting the jurist as jurist, author of famous legal scholarship and quotable Supreme Court opinions.

Stephen Budiansky, a journalist and independent scholar, knows that his subject has been fawned over quite a bit. By pointing that out, and by including in the book both the major criticisms of Holmes as well as plenty of the questionable things “the Magnificent Yankee” did and wrote, Budiansky intends to set up his own view as the impartial one.

It’s not, but by offering a less lickspittle view of Holmes, and by organizing his epistolary, biographical, historical, and legal materials so deftly, he has produced a survey of the man and his times from which admirers and critics alike can profit.

As much as liberals may claim Holmes as one of their own, Budiansky is quick to point out that he was neither liberal nor conservative. He “uttered things unsayable in the faculty lounge,” says the biographer, for example that “most law had its origins not in morality but in the distinctly unholy spirit of vengeance.”

An Elite Family Legacy

How does a person raised in the do-gooder earnestness of Boston Puritans and Unitarians end up with that view? This book shows us.

Drawing on the work of intellectual historians such as Daniel Walker Howe and Louis Menand, and the correspondence of Holmes and his circle, Budiansky creates a vivid portrait of 19th century Boston, a place saturated with a Christian sense of high-mindedness and duty. The city’s upper crust, which included the Holmes family, were “fired with a religious zeal to promote learning, literature, and culture.”

The father, Oliver Wendell Holmes, Sr. (1809-1894), was one of the household-name “Fireside Poets” along with Longfellow, Whittier, and Bryant. He dabbled in many other pursuits besides poetry: He was a medical doctor, inventor, and aspiring musician. The reforming impulse of Dr. Holmes and the rest of his generation extended to Puritanism itself. They took on a new faith, Unitarianism, which let go of the idea of Original Sin even as it continued to promote duty, diligence, and self-improvement,.

Dr. Holmes drew “a picture of Calvinist oppression he was eager to escape. The new world of science offered not only an intellectual, but a spiritual, haven,” says Budiansky. He was a nonstop explainer both in conversation and on paper. Dr. Holmes is notable for coining the term “anesthesia,” and in his writing of scientific monographs, he was handy “with a revelatory turn of phrase,” a talent that “his son would later bring to the law.”

Wendell Holmes, as the son was called, picked up an elite Protestant sort of anti-moralism from his elders. He had the writing touch, dazzling intelligence, and flippancy that were his family legacy. He also worshipped Ralph Waldo Emerson, whom he knew along with other leading lights of the time. Men like his father and Emerson prized the rejection of authority as the proof of high intellect. They were rewriting the notion of conscience; what used to mean obedience to God now meant something more earth-bound: having the pluck to stick to your own views.

‘Big Questions’

These were the dispensations Wendell Holmes took with him as he volunteered to risk his life for the Union after Fort Sumter. One of the many effects of slavery and the Civil War, writes Budiansky, was how the North-South confrontation “threw Boston’s humane, patient, tolerant, and optimistic worldview into the crisis from which it would never recover.” Unitarianism’s confidence in man’s rationality and goodness was less and less tenable after the cataclysm, especially for the young First Lieutenant who participated in it. Wendell Holmes had been a supporter of abolitionism before the war, but the physical suffering and havoc of combat deepened his distrust of ideas and causes. His growing skepticism would shape his view of the law.

Holmes was a war hero. He proudly bore his wounds from the Battle of Ball’s Bluff, Antietam, and Chancellorsville. His love for two Massachusetts 20th Regiment comrades in particular—for Richard Hallowell, a “fighting Quaker” who hated slavery, and for Henry Abbott, who hated Lincoln and used the “n” word—inclined him to doubt that the “big questions,” such as whether slavery or freedom was right, could ever be resolved.

The “pat moralizing” of reformers irked him and “skepticism was his abiding cautionary principle”—from which we can infer that Holmes did have a principle, a paradoxical one requiring that principles be downgraded in importance. He loved the common law, the accretion of a body of judgements reached in individual cases. There, one did not deal in dangerous abstractions but in particular facts. Holmes’s writings were in that area of the law.

After the war, he spent three years as a litigator for a prominent Boston law firm. Then came a lectureship at Harvard Law School. This was cut short in 1882 when he was appointed to the Supreme Judicial Court of Massachusetts.

Steeped in the minutia of English and American common law, he produced legal studies that aligned with a new scientific view. He didn’t read Charles Darwin until after embarking on his survey of the common law, but Darwin’s ideas were “in the air,” the jurist would later recall. His exposition of how old laws were put to new uses “bore more than a passing similarity to biological evolution,” writes Budiansky. For Holmes, the law was not moored in principles of right and wrong but “adapted to its surrounding environment.”

How far did the Holmesian depreciation of principle extend? Critics often quote a damning sentence from the 1897 essay “The Path of the Law” to argue that it extended very far indeed.  Budiansky would like us to consider a different passage from that same essay:

I take it for granted that no hearer of mine will misinterpret what I have to say as the language of cynicism. The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race.

He cites this disclaimer to push against the Holmes critics, but much else in the biography undercuts it.

Legal Contradictions

Once President Theodore Roosevelt selected Holmes for the Supreme Court, he marched through the cases he was assigned by Chief Justice William Howard Taft briskly, confiding to a friend that if he could, he would write all the Court’s opinions. (In this respect he was a chip off of Dr. Holmes, a monopolizer of every conversation.) The opinions he did get to write often left him complaining about having to water down his prose at the behest of his colleagues.

Contradictions abound with Holmes. He was a majoritarian in some instances, a jury-denigrating elitist and minoritarian in others. He believed in eugenics and racial purification but recognized the powerful intellect and eloquence of Booker T. Washington. He upheld the formation of trade unions, but in tort cases, he found in favor of owners of private property with such gusto that he “implicitly, and sometimes explicitly, embraced the view that a certain amount of maiming and death was just the price to be paid for the smooth functioning of society,” writes Budiansky.

Holmes became a free speech advocate later in his career. It wasn’t because he pored over the meaning of the First Amendment’s Free Speech Clause. That was a “big idea.” No, Holmes was, as John McGinnis writes, “persuaded on instrumental grounds that the proof of the truth of an idea is its power to get accepted in the market place.”

Let us stipulate that general propositions can be untrue (the proposition, say, that government is best at managing the important things in our lives). That doesn’t mean we couldn’t find any that are true (we can: the proposition that slavery is wrong). In furtherance of the latter, the post-Civil War amendments (13th, 14th, 15th) were added to the U.S. Constitution. In the 1903 case of Giles v. Harris, Justice Holmes wrote the majority opinion denying Jackson W. Giles’s claim that Alabama ought to be required to register black voters. Justices David Josiah Brewer and John Marshall Harlan dissented.

The issue that brought the nation, and First Lieutenant Holmes of the 20th Massachusetts Regiment, to bloody conflict—and Justice Holmes decides not to enforce the 15th amendment? If one were to knock this as inconsistency, Holmes might retort along with Emerson that “a foolish consistency is the hobgoblin of little minds.” In stepping around the “foolish consistency” of recognizing the natural rights that God gave each person, Holmes used instrumental reasoning. He strove to adapt the laws to their surrounding environment. Doing this leads to a bad result: deference to whoever has the most votes or the most power (in Giles v. Harris, Alabama’s Democratic legislators and local election officials).

Performative and Egoistic

Here’s another bad result: Budiansky makes no bones that it was wrong to defer to Virginia’s statute mandating that the “feebleminded” be sterilized. We’re told, though, that the jurist’s “most notorious decision,” in Buck v. Bell (1927), wasn’t completely his fault. Chief Justice Taft “egged him on in assigning him the opinion, and even in suggesting the last brutal sentence for which it would always be remembered.”

The sentence: “Three generations of imbeciles are enough.”

The surrounding material, once again, undercuts Budiansky’s defense of Holmes. Taft had written in a memo to Holmes that “The strength of the facts in three generations of course is the strongest argument” for sterilization. Nothing in his memo about “imbeciles”—or about “cutting the Fallopian tubes,” the phrase that comes just before. As readers of this book will learn, “imbecile” and “imbecilic” were words Holmes liked to use a lot. And as Stephen Budiansky is too honest not to note, he expressed himself “unusually proud” of the Buck v. Bell opinion. He was pleased that this time, in negotiations with the other justices, he resisted toning down his language.

Wendell Holmes, this richly informative book tells us, was as performative and egoistic as his father, whom he considered a sharp thinker though in philosophical terms more glib than profound. Perhaps like father, like son.