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Holmes, Oliver Wendell

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Significance: In the course of his twenty-nine years on the Supreme Court, Holmes wrote 873 opinions, and several of his eloquently argued dissents on free speech and due process are now treated as precedents. Holmes preferred common law over natural law and was strongly reluctant to interfere with state legislation that was not expressly prohibited by the Constitution.


Holmes was born into a distinguished Boston Brahmin family, a son of the famous raconteur and medical doctor, Dr. Oliver Wendell Holmes. He attended Harvard College for four years before enlisting in 1861 in the Fourth Battalion, Massachusetts Militia. As a first lieutenant, Holmes saw much heavy fighting and was wounded three times: at Ball's Bluff, Virginia, in 1861, at Antietam Creek in 1862, and at Chancellorsville in 1863. His military service ended in July, 1864, and it left an indelible mark on him, as evidenced in his 1895 Harvard Memorial Day address on “The Soldier's Faith.” In 1866 Holmes received a law degree from Harvard. He was admitted to the Massachusetts bar in 1867, and three years later, he became coeditor of the American Law Review and began lecturing at Harvard College. In 1873 he became a partner in the new firm of Shattuck, Holmes, and Munroe.


The Massachusetts Legal Scholar

Holmes's scholarly career began in 1873 when the twelfth edition of Kent's Commentaries appeared with Holmes as the sole editor. The Lowell Lectures that Holmes delivered in 1880 were published in 1881 as The Common Law, his interpretation of the legal principles that the courts had developed over centuries, and the following year, he abandoned his law practice to teach at Harvard Law School for a few months before being appointed to the supreme judicial court of Massachusetts in December, 1882. Holmes soon became known for his dictum that “except so far as expressly or by implication [a legislative act] is prohibited by the Constitution that the question always is where do you find the prohibition not where do you find the power.” Nothing did more to establish Holmes's reputation as the “Great Dissenter” than his dissent in the Massachusetts court's 6-1 ruling in 1896 on Vegelahn v. Guntner. The furniture manufacturer Frederick O. Vegelahn resisted the upholsterers’ union (represented by George M. Guntner) in their demands for a raise and a nine-hour workday. When the upholsterers picketed, Vegelahn went to the Massachusetts court and won a ruling that the picketing constituted “unlawful interference” with an employer's right to hire anyone who wanted to work for him and his employees’ right to stay employed by anyone who would hire them. In his dissent, Holmes supported Vegelahn in disallowing the picketers the right to any violent behavior, including obstructing access to the factory entrance, but he refused to forbid peaceful picketing or boycotting.


Appointment to Washington

When Theodore Roosevelt became president in 1901, the United States was experiencing a struggle between big business and the rights of individuals. The first blow had been struck in 1890 by the federal government with the Sherman Antitrust Act, but the barons were still powerful and Roosevelt knew that he had to fight them. In 1902 when Roosevelt was to make his first Supreme Court appointment, the strong advocacy of Holmes's fellow Boston Brahmin, Henry Cabot Lodge, won Holmes the seat. Holmes's first opinion, in Otis v. Parker (1902), supporting the California state constitution in its law prohibiting the sale of stocks on margin, was delivered when he had been sworn in less than a month, and it established his consistent respect for his proclamation in The Common Law that the “first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong.” Otis was soon followed by Bleistein v. Donaldson Lithographing Co. (1903), a landmark case in U.S. copyright law, in which Holmes argued that a circus advertising poster could be copyrighted, whatever its merit as art.


Defender of State Legislatures

The Fourteenth Amendment, added to the U.S. Constitution in 1868, featured in many of the cases in Holmes's career on the Court. Unfortunately for African Americans, although the Fourteenth Amendment was intended to provide relief from racial injustice, the amendment's equal protection clause usually served business interests instead. Holmes's devotion to laws shaped by the people's will did not usually serve justice for African Americans well, and in 1903, his first year on the Court, he wrote two majority opinions rebuffing African Americans in Brownfield v. South Carolina and Giles v. Harris. In Swift and Co. v. United States (1905), however, Holmes went against big business, finding that Swift's intent to monopolize interstate commerce in beef violated the Sherman Antitrust Act (1890). Holmes's argument hinged on his postulation of a “stream of commerce” in which live animals moved into an area and were shipped out as meat, an interpretation that was to become important in New Deal legislation. Business interests continued to cite the Fourteenth Amendment in their defense in cases such as Lochner v. New York (1905). New York had enacted in 1895 a law controlling conditions in the many small cellar bakeries and limiting the workweek to sixty hours. When Joseph Lochner of Utica was fined fifty dollars for letting an employee work more than sixty hours, he carried his case to the Supreme Court after losing in the New York appeals courts. Lochner argued that the Fourteenth Amendment protected him from the Bakeshop Act by guaranteeing that he could not be deprived of his liberty of contract without due process. The Court decided in Lochner's favor in a 5-4 vote, with Holmes and Justice Marshall M. Harlan II dissenting. Justice Rufus W. Peckham wrote the majority opinion, ruling that the right to buy and sell labor was guaranteed by the Fourteenth Amendment. In his dissent, Holmes claimed that state laws should not be overruled unless it was obvious to any rational person that some constitutional principle was being violated, and his clear understanding of what was going on emerged in his scolding that “A constitution is not intended to embody a particular economic theory.” Adkins v. Children's Hospital (1923) was a minimum- wage case with parallels to Lochner. A 1918 federal law had guaranteed women a minimum wage in the District of Columbia on the grounds that low wages were detrimental to health and contributed to poor morals. Children's Hospital filed suit, alleging that the law was unconstitutional because it fixed wages in clear violation of the freedom of contract, a position upheld by the Court, with Holmes joining Chief Justice William H. Taft in dissent. Justice George Sutherland's opinion for the 5-3 majority agreed with Children's Hospital and also found the minimum-wage law burdened employers with welfare responsibilities more properly left to society as a whole. Holmes daringly challenged the freedom of contract doctrine, pointing out that law quite generally forbade people from doing as they pleased. Despite the eloquent dissents of Taft and Holmes, the Court's support of laissez-faire constitutionalism continued until its striking setbacks under the New Deal, notably in the case of West Coast Hotel Co. v. Parrish (1937), which overruled Adkins and upheld a Washington minimum-wage law for women.


Civil Rights

On January 3, 1911, the Court handed down two opinions gratifying to Progressives. In the first, Noble State Bank v. Haskell, Holmes wrote the unanimous opinion rejecting the bank's claim. The Oklahoma legislature had voted to protect bank depositors with a Depositors’ Guaranty Fund built up by assessing banks 5 percent of their average daily deposits, and the Noble State Bank resorted to the due process clause of the Fourteenth Amendment to seek relief from the levy. Acknowledging that the bank had a case, Holmes nevertheless asserted that the Court should not subvert the state legislature's attempt to provide for the public welfare without clear evidence of a law's lack of public support. However, if liberals were pleased with Holmes's observations in this opinion, his dissent in the second case decided that day, Bailey v. Alabama, enraged them. Alabama was one of several southern states with so-called peonage laws by which a worker who quit a job while still owing the employer money could be prosecuted. Bailey v. Alabama took up the case of Lonzo Bailey, an illiterate African American who had left his job as a farmhand while still owing his employer $13.75. Bailey's case reached the Court in 1908 but was sent back to Alabama. In the Court's second round of deliberations, Chief Justice Charles Evans Hughes wrote for the majority that the Alabama law was coercive and that the Thirteenth Amendment had outlawed involuntary servitude. However, Holmes, faithful defender of the rights of state legislatures and believer in the sanctity of state statutes, found Bailey clearly guilty of breach of contract and fraud and therefore subject to punishment by the law. His fellow justices, Holmes stated, expected that the law would be followed differently in Alabama than it would be in New York. Holmes's first important free speech case was Schenck v. United States (1919), which tested the federal government's right under the Espionage Act (1917) to prosecute draft resisters. Holmes relied on the doctrine of clear and present danger in limiting the speeches and leaflets that the government found threatening, an argument that was used to support subsequent convictions of draft obstructors. As it turned out, only the prosecutors had any success arguing for the threat of a clear and present danger, and in Abrams v. United States, also decided for the government in 1919, Holmes dissented on the grounds that the doctrine could not be used against political dissidents who were merely exercising a right guaranteed by the First Amendment: “The best test of truth is the power of the thought to get itself accepted in the competition of the market.”



Further Reading

  • Edward G. White's Oliver Wendell Holmes, Jr. (New York: Oxford University Press, 2006) is a detailed study of Holmes's entire life that is particularly well suited for young adult readers. Catherine Drinker Bowen's Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown, 1945) is a readable, admiring book that became a best-seller. Samuel J. Konefsky's The Legacy of Holmes and Brandeis (New York: Macmillan, 1956) is a study in the influence of ideas. Another specialist study is Jeremy Cohen's Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decision Making (Ames: Iowa State University Press, 1989), an exploration of the famous First Amendment case Schenck v. United States. In Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (Cambridge, Mass.: Harvard University Press, 1963), Mark DeWolfe Howe studies the period in which Holmes was formulating his philosophy of law. The first of three excellent modern biographies is Sheldon M. Novick's Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown, 1989), which includes a useful chronology. Liva Baker's The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991) combines close attention to the man with sharp analysis of the legal scholar. G. Edward White's Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993) is an excellent biography that sees an understanding of Holmes's life as basic to understanding the jurist. Bernard Schwartz's supremely readable A History of the Supreme Court (New York: Oxford University Press, 1993) provides knowledgeable commentary on Holmes's Court decisions. Holmes's judicial career may also be studied in the context of the chief justices under whom he served. ABC-Clio's reference series on chief justices is especially useful for this purpose. Its volumes include The Fuller Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003) by James W. Ely, Jr.; The White Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2004) by Rebecca S. Shoemaker; The Taft Court: Justices, Rulings, and Legacy. (Santa Barbara, Calif.: ABC-Clio, 2003) by Peter G. Renstrom; and The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2002) by Michael E. Parrish.