(As a former Associate Justice of the Supreme Court, Holme...)
As a former Associate Justice of the Supreme Court, Holmes’ authoritative take on American common law is an informative read for lawyers and law students alike. Covering a variety of topics ranging from torts to criminal proceedings, Holmes offers a valuable perspective on the scope and administration of common law in the nineteenth century.
Oliver Wendell Holmes Jr. was an American justice of the United States Supreme Court, U.S. legal historian and philosopher who advocated judicial restraint. He was a key figure in the debate concerning the role of law in a rapidly changing America during the early twentieth century. Not only did Mr. Holmes personally contribute to the debate, but he also served as a symbol to a generation of legal and political thinkers.
Background
Mr. Holmes was born on March 8, 1841, in Boston, Massachusetts, United States, into what his illustrious father once referred to as New England’s aristocracy. Both his father, Dr. Oliver Wendell Holmes, and his mother, Amelia Lee Jackson Holmes, were numbered among the Boston Brahmins. Dr. Holmes was a famous physician and man of letters, the author of The Autocrat at the Breakfast Table and one of the founders of the Atlantic Monthly. Justice Holmes’s maternal grandfather had been an associate justice of the Supreme Judicial Court of Massachusetts.
Education
The family into which the future Supreme Court justice was born was not by standards of the time. But it was eminently well-connected, and Mr. Holmes enjoyed the benefits of his family’s social status, which included preparatory education at Dixwell’s Private Latin School. Later, he attended Harvard College (now Harvard University), from which he graduated in 1861, and where he was elected class poet after compiling a generally inauspicious record of academic achievement.
Mr. Holmes wrote in his college annual that he intended to embark on the study of law, but the summer of 1861, when he graduated, saw the Civil War intrude on these plans. He accepted a first lieutenant’s commission in the Massachusetts 20th Volunteer infantry shortly after the Battle of Bull Run. The following years found him in the thick of fighting and wounded repeatedly: shot in the chest at Bulls Bluff, in the neck at Antietam, and stricken by shrapnel at Fredericksburg. He finally mustered out of the Union army in July 1864 with his share of the nation’s scars.
He briefly contemplated a career as a philosopher and visited Ralph Waldo Emerson to explore tins inclination. Ultimately, though, he returned to his previous aspiration to find a vocation in the law and enrolled in Harvard Law School in the fall of 1864. For a year and a half he attended the various lectures of which formal legal education consisted in those days. He also - not surprisingly in light of the his own philosophical inclinations - struck up a friendship with William James, who would eventually number among the early 20th-century’s most prominent American philosophers. Cutting short the normal two-year course of legal study by a semester, Mr. Holmes was nevertheless awarded a Bachelor of Laws degree in the summer of 1866 and promptly embarked on a European tour.
When Mr. Holmes returned to Boston, he found work with the law firm of Chandler, Shattuck, and Thayer while he studied for the Massachusetts bar examination. After he was admitted to the bar in March 1867, Oliver Holmes Jr. practiced law for a time with the firm before deciding to practice with his brother Ned. Alongside his work as an attorney, Mr. Holmes began writing articles for the newly founded American Law Review and, in 1870, became one of its editors. Around the same time, he accepted a part-time position teaching constitutional law at Harvard Law School.
In the years immediately after his marriage, he practiced law with new partners, in the firm of Shattuck, Holmes, and Monroe, which focused its energies on commercial and admiralty matters. Toward the end of the 1870s, Mr. Holmes began writing a series of essays about the common law, which he eventually used as a basis for the Lowell Lectures, which he was invited to deliver in November and December 1880. These lectures, in turn, he eventually published in 1881 as The Common Law, a work widely recognized as one of the most influential books of American legal scholarship. In The Common Law, Oliver Holmes Jr. announced his sharp departure from the philosophy of legal formalism, which envisioned the law as an intricate tapestry of principles brought to bear on individual cases, from which judges deduced results that reflected the logical application of those principles to particular contexts. Mr. Holmes, though, would have none of this. Judges decided cases, he insisted, in accordance with the "felt necessities of the time" and devised principles after the fact to explain the results. The Common Law thus became an early manifesto for the philosophy of legal realism.
Harvard Law School recognized the now secure legal stature of Oliver Wendell Holmes Jr. by appointing him as a professor of law in 1882, but Mr. Holmes aspired to the more mentally vigorous life of a judge. This ambition was fulfilled almost immediately when he, after teaching only a semester at Harvard Law School, accepted an appointment as an associate justice of the Supreme Judicial Court of Massachusetts.
Over the years on the Massachusetts court, Mr. Holmes wrote nearly 1,300 judicial opinions, grappling mostly with the common-law issues on which he had forged his scholarly reputation. When called on to decide constitutional matters, Oliver Holmes Jr. tended to practice deference toward legislatures. He remained on the Supreme Judicial Court for the next 20 years, becoming chief justice toward the end of his tenure, in 1899.
In fall 1902 Justice Horace Gray of Massachusetts died, leaving a vacant seat on the U.S. Supreme Court. Like Oliver Holmes Jr., Mr. Gray had served as chief justice of Massachusetts’s highest court before accepting an appointment to the Supreme Court. President Theodore Roosevelt shortly expanded the parallels between the two Massachusetts judges by nominating Mr. Holmes to fill the vacancy left: by Horace Gray’s death. After his Senate confirmation, Mr. Holmes took his seat, on December 8, 1902, undertaking what would eventually become a 30-year career as an associate justice on the Supreme Court. He also became the first justice appointed to the Court in the 20th century. Before his long tenure on the Court ended, he served under four chief justices - Melville W. Fuller, Edward Douglass White, William Howard Taft, and Charles Evans Hughes. By the time he finally laid down his judicial pen, he had written 873 opinions for the Court, as well as influential dissenting opinions in the areas of substantive due process and free speech that later majorities on the Court would embrace.
By the end of his years on the Court, Justice Holmes had served longer than any previous justice. He managed to continue his work on the Court past his 90th birthday, but declining health eventually robbed him of the strength and mental attention necessary to continue his judicial work. At the urging of his friend Justice Louis Brandeis Holmes agreed to resign from the Court on January 12, 1932.
(As a former Associate Justice of the Supreme Court, Holme...)
Politics
Mr. Holmes was known for his deference to the decisions of elected legislatures. Profoundly influenced by his experience fighting in the American Civil War, Oliver Holmes Jr. helped move American legal thinking towards legal realism, as summed up in his maxim: "The life of the law has not been logic; it has been experience." Oliver Holmes Jr. espoused a form of moral skepticism and opposed the doctrine of natural law, marking a significant shift in American jurisprudence.
Oliver Holmes Jr. believed that the making of laws is the business of legislative bodies, not of courts, and that within constitutional bounds the people have a right to whatever laws they choose to make, good or bad, through their elected representatives. He stated the concept of "clear and present danger" as the only basis for curtailing the right of freedom of speech, illustrating it with the homely example: "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."
Views
Quotations:
"A mind that is stretched by a new experience can never go back to its old dimensions."
"The life of the law has not been logic but experience."
"Taxes are the price we pay for a civilized society."
"Youth fades; love droops; the leaves of friendship fall; A mother's secret hope outlives them all."
"The right to swing my fist ends where the other man's nose begins."
"The greatest thing in this world is not so much where we are, but in which direction we are moving."
"Life is painting a picture, not doing a sum."
"Upon this point a page of history is worth a volume of logic."
"Eloquence may set fire to reason."
"We should be eternally vigilant against attempts to check the expression of opinions that we loathe."
Connections
In 1867 Mr. Holmes married Fanny Bowdich Dixwell. The couple’s marital union, though childless, would last for 57 years until his wife's death in 1929.