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Holmes, Oliver Wendell Jr.

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Birth: March 8, 1841, Boston, Massachusetts.

Education: Harvard College, A.B., 1861; LL.B., 1866.

Official Positions: Associate justice, Supreme Judicial Court of Massachusetts, 1882–1899; chief justice, 1899–1902.

Supreme Court Service: Nominated associate justice by President Theodore Roosevelt, December 2, 1902, to replace Horace Gray, who had died; confirmed by the Senate, December 4, 1902, by a voice vote; took judicial oath December 8, 1902; retired January 12, 1932, replaced by Benjamin N. Cardozo, nominated by President Herbert Hoover.

Death: March 6, 1935, Washington, D.C.

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Oliver Wendell Holmes Jr.
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Oliver Wendell Holmes Jr.

Oliver Wendell Holmes Jr. is one of the best- known Supreme Court justices in history, and commentators consistently rank him as one of the “great” justices to sit on the Court. Holmes is also notable in engendering more literature, both scholarly and popular, than any other justice. Today, his life and career continue to be objects of fascination.

Holmes had literary aspirations as an undergraduate at Harvard, but they were postponed in the spring of his senior year, when the Civil War began. Holmes left Harvard, enlisted in the Twentieth Regiment of Massachusetts Volunteers, and in July 1861 secured a commission as a lieutenant.

Holmes's Civil War service was one of the memorable episodes in his life. He served until June 1864 and was wounded three times, in the chest, neck, and heel. The first two wounds were life-threatening, with only the fortunate trajectory of the bullets sparing him. For the remainder of his life, Holmes thought of his experiences in the war as especially vivid and meaningful. He claimed that his generation had been uniquely favored (“touched with fire”) in being the first to participate in the “crusade” of the Civil War. He romanticized the experience of participating in war, as opposed to war itself, which he once described as “horrible and dull.” In 1895 he wrote an essay, “The Soldier's Faith,” in which he characterized the attitude that made a soldier throw his life away for a cause that he could not comprehend as “true and adorable.”

After his wartime service, Holmes returned to Boston, attended Harvard Law School, and completed his studies in 1866. The next several years were devoted to practicing law and a variety of related activities. He wrote essays on legal history and jurisprudence for the American Law Review and served as its coeditor from 1870 to 1873; he edited a volume of James Kent's Commentaries on American Law; wrote an influential book, The Common Law (1881); and briefly joined the Harvard law faculty. Holmes was appointed an associate justice of the Supreme Judicial Court of Massachusetts in December 1881. He had always wanted to be a judge, feeling that academic life was “half life” and law practice was insufficiently theoretical. By 1899 he was chief justice of the Massachusetts court.

For all of Holmes's dedication to his work and satisfaction with it, the demands of the Massachusetts court were not sufficient to meet his intellectual energies. During the twenty years he served, he continued to write scholarly articles and to make speeches and addresses, publishing them in a volume, Speeches, in 1891. “The Soldier's Faith” was one such address. It came to the attention of Gov. Theodore Roosevelt, R-N.Y., in the late 1890s, who was impressed with its apparently jingoistic sentiment.

On July 9, 1902, Justice Horace Gray, who was gravely ill, sent his resignation to President Roosevelt but said he would remain on the Court until the president named his successor. Roosevelt selected Holmes on August 11, a month before Gray's death on September 15.

Cautious to the end, Holmes did not resign from the Massachusetts court until the Senate received the nomination and formally confirmed him in early December. At age sixty-one Holmes and his wife, Fanny, moved to Washington to start a new life. In the early months of his tenure, Holmes wrote friends of his wonder and delight in the magnitude of the task: the capacities of his fellow judges, the breadth of the legal questions, the energized political atmosphere of Washington. Ten years later, however, Holmes no longer felt that his job was completely absorbing. He had found that he could easily keep up with the work of the Court, being able to dash off his assigned opinions and help recalcitrant justices with their work. In his leisure time he returned to his lifelong hobbies of reading and correspondence, and as his personal contacts narrowed, his correspondence friendships increased. After 1912 the circle of his friends began to change, as his older contemporaries were dying. In their place he sought the company of a younger generation of intellectuals, among them Felix Frankfurter, Harold Laski, Learned Hand, Herbert Croly, Walter Lippmann, and Zechariah Chafee.

In seeking out the company of new friends, Holmes was also seeking recognition. As surprising as it may seem, Holmes in 1912, after ten years on the Court, was still essentially unknown, not only to the lay public, but to all but a handful of lawyers. To the extent he had developed a reputation, it was with a few “progressive” intellectuals who had found in his dissent in Lochner v. New York (1905), which tested the constitutionality of a state law fixing minimum hours of work in the baking industry, the outlines of an appropriately deferential judicial attitude toward reformist social legislation. Beyond Lochner, which had only begun to be celebrated by 1912, many Court watchers found Holmes enigmatic and his opinions obscure.

A tally sheet of Holmes's major opinions during the first fifteen years of his tenure, 1902–1917, produces a record that seems at variance with subsequent images of Holmes as a judge. Not only was he a largely unrecognized figure during those years, but also the principal attributes of his later images—that he was an enlightened judge in his deference to progressive legislation and that he was a supporter of civil liberties—are hard to square with the thrust of his decisions.

The best evidence of Holmes's attributed enlightenment can be found in a line of decisions, including Lochner, in which he made it clear that judges should not supersede the policies of legislatures on questions of economic policy. He had announced this posture in his very first opinion for the Court, Otis v. Parker (1903), a case testing the constitutionality of a California statute prohibiting contracts for the sales on margin of corporate capital stock. “It by no means is true,” Holmes wrote, “that every law is void which may seem to the judges who pass on it excessive, unsuited to its ostensible end, or based on conceptions of morality with which they disagree.” A similar posture marked his dissent in Lochner and his dissents in Adair v. United States (1907), Noble State Bank v. Haskell (1911), and Coppage v. Kansas (1914), all of which protested against judicial use of the doctrine of “liberty of contract,” ostensibly derived from the Fourteenth Amendment's due process clause, to invalidate social legislation. In all those dissents Holmes deferred judgment on the wisdom of the legislation in question, while reiterating that, as he put it in Haskell, “Judges should be slow to read into the [Constitution] a [mandate to void] …. the legislative power.”

Such opinions identified Holmes as having a clear and consistent approach to the scope of constitutional review in cases of social legislation. He was opposed to judicial glosses on the constitutional text, such as “liberty of contract,” as a means of substituting the ideology of judges for that of legislators, so long as legislative decisions were rationally based. Judicial intervention, in his view, was reserved for the case of the overwhelming constitutional mandate, such as a statute that offended the exact text of the Constitution. The opinions were not, however, necessarily supportive of any ideological position on the legitimacy of social legislation. Progressives, who supported regulation of the industrial marketplace to foster desirable social ends, endorsed Holmes's results in the cases, but Holmes did not necessarily share that attitude.

Beyond that line of decisions and Swift & Company v. United States (1905), in which Holmes found that an agreement among shippers of fresh meat to fix prices came within the reach of the Sherman Antitrust Act of 1887, he wrote few opinions that early twentieth-century progressives would have found congenial. In the most celebrated case of Holmes's early tenure, Northern Securities Co. v. United States (1904), he was conspicuously on the “wrong” side. The Roosevelt administration had sought to apply the Sherman Antitrust Act, which outlawed “every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade among the several states,” against a holding company capitalized from the stock of competitor railroads. The Court ruled, 5–4, that the creation of the holding company violated the act. Holmes dissented, arguing that the meaning of the terms contract, combination, and conspiracy in the act could only be the technical meaning at common law; otherwise, any two-party agreement between competitors of any size would violate the law. For this arguably commonsensical position, he received the enmity of Roosevelt, who said that Holmes had been “a bitter disappointment …. on the bench.”

Similarly, in Dr. Miles Medical Company v. John D. Park & Sons Company (1911), Holmes declined to apply the Sherman act to an agreement between a manufacturer of proprietary medicines and representatives of drugstores in which the prices of patent medicines were fixed. In dissenting from a majority opinion that the price-fixing scheme violated the act, Holmes said that “I think …. it is safe to say that the most enlightened judicial policy is to let people manage their own business in their own way, unless the ground for interference is very clear.” He then went on to say that, in his view, the meaning of the term “fair price” was the “point of most profitable returns.” That point “marked the equilibrium of social desires” and determines the fair price. This was an astonishingly unprogressive statement in its espousal of judicial noninterference with the economic marketplace and its assumption that whatever was profitable in that marketplace was fair.

If Holmes's early decisions on social legislation permit him to be labeled a progressive judge only with strain, his early decisions on civil liberties were equally inconsistent with a later stereotype of Holmes as a liberal. Here, context is again important. Early twentieth-century progressives were concerned primarily with redressing economic inequalities and did not address minority rights beyond the sphere of industrial relations. The oft-described tension in American liberal thought between support for government regulation and solicitude for minority rights did not surface until later in the century.

Even so, Holmes's early decisions were notably unsympathetic to minority rights. In the midst of widespread discrimination against blacks in the early decades of the twentieth century, the Court regularly supported the positions of black claimants who sought relief against government-supported racial discrimination. Holmes, however, was not usually part of the Court majorities who upheld minority claims. In Bailey v. Alabama (1911), for example, the Court invalidated an Alabama statute that made the breach of a contract prima facie evidence of fraud as inconsistent with the Thirteenth Amendment's prohibition of slavery. The Court reasoned that such statutes, invariably applied to contracts between black farm laborers and their employers, effectively prevented laborers from terminating their contracts except in the unlikely event that they were able to repay advanced wages at the time of termination. Holmes, dissenting, argued that given the tendency of black laborers “to remain during a part of the season, receiving advances, and then to depart at the period of need in the hope of greater wages at a neighboring plantation,” the statute was a reasonable device to ensure the performance of labor agreements. “The power of the states to make breach of contract a crime,” he asserted, “is not done away with by the abolition of slavery.”

In United States v. Reynolds (1914), however, Holmes joined a decision invalidating a comparable arrangement, the criminal-surety practice. Under that practice, persons convicted of minor offenses and ordered to pay fines could enter into arrangements with other persons to have their fines paid in exchange for labor. Evidence in Alabama and Georgia, which permitted the arrangements, was that they were used overwhelmingly in cases involving black farm laborers and often resulted in laborers being subject to what the Court called “an ever-turning wheel of servitude.” A unanimous Court concluded that the practices amounted to peonage and invalidated them.

Holmes wrote a separate concurrence revealing his motivation in supporting the Court's position. After reiterating his view that the Thirteenth Amendment did not prevent states from criminalizing breaches of contract, Holmes indicated that he thought the application of the criminal-surety practice to contracts involving black laborers particularly unfortunate:

[I]mpulsive people with little intelligence or foresight may be expected to lay hold of anything that affords a relief from present pain, even though it will cause greater trouble by and by. The successive [surety] contracts, each for a longer term than the last, are the inevitable, and must be taken to have been the contemplated, outcome of the Alabama laws.

Holmes's posture in Reynolds amounted to a scrutiny of the motives of legislation and a conclusion that those motives were race conscious. This stance was unusual for Holmes, given his deference to legislation and his indifference to claims based on racial discrimination. Yet Holmes's position in Reynolds amounted to the exception that proved the rule: his scrutiny was precipitated by his conviction that the system was deliberately designed to take advantage of the “impulsiveness” of black laborers. Ordinarily, Holmes eschewed paternalism in economic relationships, but in Reynolds he inclined toward paternalism because he accepted the stereotype of black “impulsiveness.” His race consciousness was a consciousness based on white supremacy.

Holmes's general indifference to the claims of minorities surfaced even more starkly in his decisions involving aliens, in which he allowed the federal government and individual states sweeping powers over them. In three cases, United States v. Sing Tuck (1904), United States v. Ju Toy (1905), and Patsone v. Pennsylvania (1914), Holmes wrote majority opinions for the Court denying the constitutional claims of aliens. The first two cases involved efforts on the part of Chinese petitioners to prove that they were U.S. citizens. Holmes upheld as constitutional federal administrative proceedings requiring the testimony of two witnesses that a petitioner had been born in the United States and making the determinations of immigration officials on the question of an applicant's citizenship conclusive without provision for judicial review.

Not only could the federal government summarily exclude aliens from the country, states also had apparent impunity to discriminate against aliens who resided within their borders. That was the message of Holmes's decision in Patsone. The Pennsylvania legislature, in the wake of labor unrest, had passed a statute making it unlawful for any unnaturalized foreign-born resident to kill wildlife and thereby prohibited resident aliens from owning or possessing firearms. The statute, enacted a month after an agreement between Pennsylvania coal mine operators and mine workers had expired, was clearly the legislature's attempt to reduce the possibility of violence in the mines. Pennsylvania had made no effort to show that aliens, as a class, were more dangerous to wildlife than citizens. The legislation had nothing to do with the dangers aliens posed to wildlife, but everything to do with the dangers aliens in the labor force purportedly posed to the public at large.

It is easy enough to critique Patsone, but seen from the perspective of judicial review, Holmes's opinion is instructive. He may have believed that, given principles of sovereignty, states could exclude aliens entirely from their borders. He may have felt that, given the mandates of sovereignty, legislative pronouncements in an area in which legislative supremacy was unquestioned were in effect unreviewable. That was a consistent and defensible position, but it obliterated the impact of constitutional clauses designed to restrict legislative power. If a state could invoke its sovereignty as a basis for the most arbitrary sort of classification, it was hard to know the meaning of equal protection of the law as a constitutional principle.

Not much in Holmes's early career on the Court, then, lends support for the characterization of him as a civil libertarian, any more than for the characterization of him as a progressive or liberal judge. The case for Holmes in those capacities has rested largely on two features of his later years on the Court. The first of these was his continued dissenting posture in liberty of contract and other cases in which conservative majorities used doctrinal glosses on constitutional provisions to limit the scope of social legislation. The second was his emergence, after 1919, as a champion of free speech.

One way to resolve the apparent contradiction between Holmes's image and his early decisions is to suggest that his judicial stance changed with time, that he became more liberal as he aged. Perhaps Holmes's new set of friends, the group of younger progressive intellectuals, became his principal intellectual constituency, and through them he became acquainted with the issues that progressives thought important. Strong evidence exists that in the area of free speech Holmes's progressive friends had a direct impact on the way he conceptualized speech issues in the last years of his tenure.

This suggestion, on balance, must be rejected. Holmes's jurisprudence, even taking free speech issues into account, remained largely of a piece during his whole career on the Court. He was only accidentally a progressive, and a liberal only with respect to certain kinds of speech issues. The emergence of his image as a progressive and liberal judge rests largely on the selective publicization of others and on the fortuitous affinity between Holmes's extremely limited theory of judicial review and the social goals of progressives. Even Holmes's allegedly libertarian posture on speech, which emerged very late in his career, arguably rests more on a few memorable sentences in his opinions than on a consistent jurisprudential theory.

Two sets of cases illustrate these conclusions. The first set is Holmes's opinions between 1917 and 1931 on cases testing the constitutionality of social legislation and includes Hammer v. Dagenhart (1918), Truax v. Corrigan (1921), Pennsylvania Coal Co. v. Mahon (1922), Adkins v. Children's Hospital (1923), Tyson & Brother v. Banton (1927), and Buck v. Bell (1927), among others. The second set is Holmes's free speech opinions, ranging from his early decisions in Patterson v. Colorado (1907) and Fox v. Washington (1915) through his 1919 decisions testing the constitutionality of the Espionage Act of 1917, Schenck v. United States and Abrams v. United States, to his notable later statements about free speech in Gitlow v. New York (1925) and United States v. Schwimmer (1929).

The first set of cases does not establish Holmes as an ideological progressive: it merely provides additional evidence of his opposition to substantive judicial readings of open-ended clauses in the Constitution. Hammer and Adkins were eloquent critiques of the doctrine of liberty of contract, reinforcing the position Holmes had previously advanced in Lochner, Adair, and Coppage. In all those decisions, Holmes sustained state regulatory power, which he supported because of his positivist inclinations, not because he cared about the evils of child labor (Hammer), the level of wages paid hospital workers (Adkins), or the regulation of theater ticket prices (Banton).

Mahon and Buck v. Bell are less easily reconciled with a progressive ideological agenda, although both were arguably consistent with Holmes's ideological instincts as a judge. In Mahon, a coal company had sold off its surface land rights for development, retaining its subsurface mineral rights. When Pennsylvania forbade subsurface mining in areas where public buildings, thoroughfares, or private houses were located, the company challenged the statute as a violation of its property and contract rights. In his majority opinion, Holmes maintained that the contract and due process clauses imposed limits on the capacity of legislatures to take property without compensation. He seems to have been motivated by commonsensical propositions. The company had retained subsurface rights, and, given its business, the principal value of the land to it lay in those rights. Those who acquired land from the company could have acquired the subsurface rights as well. Moreover, the contract and due process clauses were strong textual mandates for constitutional limitations on legislative conduct.

Holmes's progressive friends declined comment on Mahon. The opinion, however, has had nothing of the notoriety over the years of Holmes's decision in Buck v. Bell, in which he sustained the constitutionality of a Virginia statute providing for compulsory sterilization of certain inmates in state mental institutions. The statute established a procedure by which inmates were labeled “mentally deficient” and sterilized so as to keep them from “perpetuating their kind” and adding to the burden on state facilities. The inmates did not have much opportunity to demonstrate their ineligibility for sterilization, nor did the state advance a convincing justification for why only inmates of state facilities, rather than “mental defectives” in the general population, were singled out for sterilization.

Holmes summarily dismissed both the due process and equal protection arguments. He felt that compulsory sterilization was akin to compulsory vaccination, and that “three generations of imbeciles,” a label he mistakenly applied to Carrie Buck and her family, were “enough.” He downplayed equal protection as “the usual last resort of constitutional arguments.” In contrast to many of his decisions, in Buck v. Bell, Holmes did not exhibit indifference toward the social policy embodied in the statute he was sustaining. He was an enthusiast for eugenics, the movement that had precipitated the Buck statute. Many progressives embraced eugenics as a worthwhile reform. The movement became somewhat tarnished by its Nazi adherents, but in the 1920s Nazi-style “population control” had not yet been anticipated.

On balance, Holmes's later decisions on social legislation exhibited the same consciousness as his earlier opinions. He began with a presumption that legislatures, being majoritarian and positivist institutions, could do what they wanted: the scope of judge-created constitutional review was narrow. He was at bottom a Darwinist, a Malthusian, and a fatalist, so his enthusiasm for reformist legislation was extremely limited. He believed that the idea that judges were constrained by some disembodied, transcendental entity called “the law” was nonsense. Judges, he concluded, had ample opportunities to be creative lawmakers, and consequently should be loath to write their views on public policy into constitutional doctrine. Because a constitution was made “for people of differing views,” judges should avoid substituting their doctrinal glosses for the text.

A generation of early twentieth-century intellectuals sought to make Holmes a progressive judge for their own purposes, and the label so attached itself to him that it took forty years, and the more searching scrutiny of a later generation puzzled by Holmes's apparent indifference to civil liberties, to complicate matters and begin a new phase in Holmesian historiography. But one dimension of his jurisprudence has appeared as resolutely progressive or liberal—his apparent sympathy for dissident, “unpopular” speakers, and his apparent championing of what he called “the principle of freedom for the thought we hate.”

Here again Holmes has been widely misunderstood, as commentators, seduced by the power of his rhetoric, have ignored the pattern of his decisions. But there are complicating factors. In contrast to his decisions on social legislation, in which Holmes immediately adopted and followed a consistent jurisprudential posture, his opinions on free speech underwent a process of change distinctly in the direction of protecting speech. By the end of his career, Holmes treated freedom of speech issues as raising the most serious constitutional questions, whereas earlier he had apparently assumed that the First and Fourteenth Amendments added little to the doctrinal status of speech at common law.

Up to the end of World War I, Holmes's views on free speech were orthodox and restrictive. In Patterson v. Colorado and Fox v. Washington, he summarily dismissed free speech claims by newspaper editors who had criticized the motives of Colorado judges and championed the cause of public nudity. In Patterson, he stated that First Amendment protection applied only to prior restraints on speech, not speech that had been published. In both cases he indicated that speech could be suppressed if it had a “tendency” to encourage illegal or undesirable conduct, even without evidence that such conduct had occurred. The decisions treated the First Amendment as adding nothing to the common law, which held objectionable speech as no different from any other socially undesirable act.

In 1919 Holmes confronted the scope of congressional power to suppress speech in four cases testing the constitutionality of the Espionage Act of 1917 and the Sedition Act of 1918, the most sweeping effort on the part of the federal government to restrict “subversive” speech since the Alien and Sedition Acts of 1797. Those statutes criminalized expressions having the effect of causing insubordination in the armed forces or of obstructing the recruitment or enlistment of soldiers, and expressions advocating any “curtailment of production” of the war effort.

Holmes wrote opinions in all the cases. The leading two, doctrinally, were Schenck and Abrams; the most popularly celebrated was Debs v. United States, which involved the incarceration of Eugene Debs, a prominent Socialist politician, for declaring his opposition to the war. (The fourth was Frohwerk v. United States.) Holmes laid down an apparently consistent doctrinal position: the constitutional test for whether allegedly subversive speech could be criminally prosecuted was whether it created a “clear and present danger” that the evils described by the statute would occur. In laying down the clear and present danger test, Holmes explicitly abandoned his position in Patterson that the First Amendment's protection was confined to prior restraints, and he intimated that the clear and present danger test was intended to supplant the “bad tendency” test he had employed in Patterson and Fox.

In actuality, the situation was far less clear. After mentioning the clear and present danger test in upholding the legislation in Schenck, Holmes did not refer to it again in either Frohwerk or Debs, even though the facts of those cases suggested that the expressions were too remotely related to interference with the war effort to make out a clear and present danger. Then, in Abrams, Holmes, this time in dissent, appeared to deviate from his earlier opinions in his understanding of clear and present danger. The Abrams case involved the convictions of Russian-speaking immigrants, sympathetic to the anti-Bolshevik forces in Russia, who distributed leaflets to munitions workers urging them not to manufacture weapons that were going to be used against their Russian comrades. Holmes rephrased the clear and present danger test to read “clear and imminent danger” and argued that the leaflets were too inept in their syntax and content to have any serious effect. He then declared, “We should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.” This statement was a much more speech-protective reading of the “clear and present danger” formula than Holmes had previously made.

From Abrams on, one could chart a progression of Holmesian First Amendment decisions in which speech received greater and greater protection, including Gitlow, Schwimmer, and United States ex rel. Milwaukee Social Democratic Publishing Co. v. Burleson (1921). In Burleson, Holmes argued in dissent that the postmaster general could not summarily deny second-class mail privileges on the basis of a publication's content, a marked departure from his opinion in McAuliffe v. New Bedford (1892) from his days on the Supreme Judicial Court of Massachusetts. In McAuliffe, a policeman had been dismissed for political campaigning, and Holmes had argued that because New Bedford could decline to hire policemen at all, it could establish the terms of their employment. In Burleson, he conceded that the United States could terminate its postal service, but that “greater power” did not apparently subsume the “lesser power” to condition access to that service on the content of publications.

Gitlow and Schwimmer went even further. In Gitlow, the New York legislature had provided criminal penalties for speech advocating the overthrow of the government and had subsequently convicted Benjamin Gitlow for circulating “The Communist Manifesto,” a document that called in general terms for “revolutionary mass action” but specifically recommended only “mass political strikes.” Even though no evidence suggested that the publication of the “Manifesto” had “any effect,” a majority of the Court held this fact immaterial because the statute proscribed advocacy itself. In such situations the clear and present danger test did not apply because the legislature had predetermined that certain types of advocacy imminently threatened the body politic.

Holmes dissented, and his dissent contained some startling statements. “Every idea is an incitement,” he declared, and the “only difference” between the expression of an opinion and “an incitement in the narrower sense” is “the speaker's enthusiasm for the result.” “If in the long run the beliefs expressed in proletarian dictatorship are destined to be accepted by the dominant forces of the community,” he said, “the only meaning of free speech is that they be given their chance and have their way.” These two comments appeared to endorse a view of speech well beyond that embodied in the clear and present danger test. That test had implicitly distinguished between speeches and incitements, with the latter a category of speeches that bore a close enough connection to danger to the state that they could be suppressed. In suggesting that the only difference between a speech and an incitement was the speaker's enthusiasm for the result, Holmes seemed to be suggesting that clear and present danger was a subjective rather than an objective formulation, which robbed it of its utility. One could hardly let a speaker decide whether his or her speech posed a danger to the state if there were to be any restrictions on speech.

Even more puzzling were Holmes's comments about “the only meaning of free speech.” They suggested that the test for whether the beliefs of proletarian dictatorship were legitimate was their eventual acceptance or rejection by the dominant forces of the community, not their initially incendiary character. The logic of this statement led to complete protection for all speech, with the market, as signified by the views of dominant forces, being the ultimate determinant of legitimacy. Some speech might not eventually “have [its] way,” but all speech needed to be “given [its] chance.” The dominant forces, however, could eventually suppress any speech they disapproved of. As interpreted, the statement seemed inconsistent with all of Holmes's free speech decisions since Schenck, in which he had assumed that the First Amendment placed some limits on majoritarian repression of unpopular speech.

If Holmes's dissent in Gitlow is read as a libertarian document, his progression from a restrictive to an ultralibertarian conception of free speech was completed in Schwimmer, in which he applied the First Amendment in a context where it had never before been applied. That context was the deportation of resident aliens, a class of persons, Holmes had argued in Sing Tuck and Ju Toy, that were afforded no constitutional protection.

In Schwimmer, a forty-nine-year-old citizen of Hungary who had been a resident of the United States for several years filed an application for American citizenship. On her application form she declined to give an affirmative answer to a question as to whether she would take up arms in the defense of the United States, citing her belief in pacifism. The Immigration and Naturalization Service summarily denied her application. When she challenged that denial, a federal appellate court held that the denial was improper because as a forty-nine-year-old woman she would not be asked to take up arms. A majority of the Supreme Court reversed and instituted the original denial of citizenship.

Holmes, in dissent, repeated the argument that Schwimmer's pacifism was irrelevant because she would not be asked to take up arms. He then went on, however, to suggest that Schwimmer was a free speech case. He wrote:

If there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought—not free thought for those who agree with us but freedom for the thought we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country.

The oddity of that statement was that Congress had no requirement to adhere to the First Amendment, or any other constitutional provision, in naturalization cases. Congress had the undoubted power to condition American citizenship on the avowal of certain beliefs, just as it had the power to condition citizenship on health requirements. Holmes had made much of that sovereign power in his earlier decisions concerning aliens. Now he was suggesting that the constitutional principle of free speech ought to apply “with regard to admission into, as well as life within this country.”

It is hard to imagine that, by the time he wrote Schwimmer in 1929, Holmes had reconsidered his position on sovereignty and alien rights and concluded that the Constitution, after all, did apply to aliens. Schwimmer was an example of Holmes's tendency, not only in free speech cases but throughout his opinions, to prefer a memorable, sweeping phrase to analytical or doctrinal consistency. Patterson, Schenck, Abrams, Gitlow, and Schwimmer were doctrinally irreconcilable: Holmes had successively announced a battery of tests and conceptions of the impact of the First Amendment in subversive speech cases, and the tests and conceptions could not be squared with one another. Only in Schenck had Holmes explicitly rejected one of his earlier conceptions: in Schwimmer he said that the “position and motives” of the petitioner were “wholly different from those of Schenck,” as if the two cases should be decided in the same constitutional framework. That suggestion was analytically bizarre.

The Patterson-Schwimmer sequence suggests that it is not very fruitful to approach Holmes's free speech opinions seeking doctrinal or even philosophical consistency. Even what might be called a progression in those opinions of greater solicitude for speech requires qualification in light of some other decisions, such as Gilbert v. Minnesota (1920) or the companion cases of Meyer v. Nebraska and Bartels v. Iowa (1923), in which Holmes either permitted state restrictions on speech in circumstances where a clear and present danger did not seem to have been demonstrated, or failed to conceptualize the cases as raising free speech issues at all. In the Meyer-Bartels cases, certain states had attempted to prohibit the teaching of foreign languages before the eighth grade, apparently on the grounds of patriotism and anti-German sentiment. Although Holmes conceded that such statutes infringed on the “liberty of teacher and scholar,” he thought them constitutional. He either did not see the liberty to receive information about a foreign language or culture as raising First Amendment issues or he thought the states' interest in promoting a common tongue compelling. That position was impossible to square with Schwimmer.

On balance, Holmes's free speech opinions were not so much evidence of a progressive or liberal sensibility as they were evidence of the unique complex of values that made up his judicial posture. As a judge, Holmes was deeply interested in exploring the philosophical foundations of legal issues and identifying his philosophical stance toward those issues. He was far less interested in doctrinal or analytical consistency, and his philosophical views, rendered in terms of the political ideologies of his day, did not easily mark him as progressive, liberal, or conservative.

Free speech was the sort of issue that Holmes enjoyed ruminating about. He had first conceived speech as no different from any other social act and therefore entitled to no greater protection than unpopular conduct. As he was forced to think more about speech in the context of the wartime subversive speech cases, he began to recognize a strong social interest in encouraging even unpopular speech as part of the process by which persons exchange ideas in a democratic society. He disengaged speech from an older liberty framework, which had included liberty of contract and of which he was highly skeptical, and began to conceive of it as a philosophical principle of freedom in a democracy—freedom to protest, to express one's individuality, to articulate “fighting faiths.” He began to associate this principle with his deterministic views on majoritarian power and historical change, and he concluded that suppressing speech was wrongheaded and ultimately fruitless. In so doing he was not endorsing the substance of unpopular views: he continued to express indifference toward them, as he had toward progressive social legislation. In short, free speech for Holmes was a complicated and important philosophical puzzle. Addressing such puzzles was one of the things he liked best to do as a judge.

Another thing Holmes liked to do as a judge was to write his opinions “with style.” Style for Holmes meant an emphasis on the pithy, arresting, often cryptic or ambiguous aphorism. Such Holmesian aphorisms have a capacity to linger in the memories of readers. It is far easier to summon up their language than to explain them. In the area of free speech, Holmes experimented with a number of memorable phrases, and although they vividly encompassed some of the philosophical complexities of free speech issues, they did little to clarify those issues or, for that matter, Holmes's position on them. To affirm the principle of “freedom for the thought we hate” or to suggest that “the only meaning of free speech” is that unpopular doctrines may ultimately “have their way” is to state, in memorable fashion, one of the central philosophical rationales for protection for speech in a society committed to democratic forms of change.

When one asks what follows from the statements for lawyers and judges charged with analyzing and deciding free speech issues, the statements evaporate. Holmes was not particularly interested in that dimension of judicial decision making, nor in the political labels others attached to his work. An irony of Holmes's career is that so few commentators have granted him his preferences. As a judge, he wrote to Canon Patrick Sheehan in 1912, he wanted “to put as many new ideas into the law as I can, to show how particular solutions involve general theory, and to do it with style.” He pursued those goals avidly and successfully throughout his judicial career. One may be frustrated by the dimensions of judging that his blueprint leaves out, but one should resist trying to recast his jurisprudential sensibility.


The Oliver Wendell Holmes Jr. papers, in the Harvard Law School Library, have been issued in a microfilm edition by University Publications of America (1985). The Holmes papers contain about 29,000 items, the bulk of which is correspondence. Several of Holmes's correspondences, including those with Harold Laski, Frederick Pollock, Lewis Einstein, Clare Castletown, Felix Frankfurter, Morris Cohen, Canon Patrick Sheehan, Franklin Ford, and John C.H. Wu, have been published. The major unpublished correspondence collections in the Holmes papers are those with John Wigmore and John Chipman Gray, and his wife, Nina. Other items in the Holmes papers include travel and Civil War diaries, a list of his yearly readings, engagement calendars, and a sparse collection of judicial papers. Two excellent collections of Holmes's writings are Max Lerner, The Mind and Faith of Justice Holmes (2d ed., 1988); and Richard A. Posner, The Essential Holmes (1991).

Biographies of Holmes include Liva Baker, The Justice from Beacon Hill (1991), a reliable and well-written trade biography that is sparse and derivative in its discussion of Holmes's work as a scholar and judge; Catherine Drinker Bowen, Yankee from Olympus (1944), a blend of fact and fiction about Holmes and his family, captivating reading if one is unconcerned with accuracy; Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years (1957), and Justice Oliver Wendell Holmes: The Proving Years (1963), the authorized biography, and a masterful treatment of Holmes's early life and career through the publication of The Common Law, lamentably cut short by Howe's death in 1967; John S. Monagan, The Grand Panjandrum: The Mellow Years of Justice Holmes (1988), a delightful account of Holmes's later life, based on interviews with persons who knew him well; Sheldon Novick, Honorable Justice (1989), the first nonfiction trade biography covering Holmes's entire life, based on the Holmes papers but erratic in its coverage and insights; and G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self (1993), an analysis of Holmes's life and work and the relationship between them.

Robert W. Gordon, ed., The Legacy of Oliver Wendell Holmes, Jr. (1992), is a collection of essays on Holmes, including some accomplished treatments of various phases of his career. In addition, one should consult Yosal Rogat, “Mr. Justice Holmes: A Dissenting Opinion,” Stanford Law Review 15 (1963): 254, a major revision of Holmes's image as a civil libertarian, focusing on cases involving aliens and blacks; and Rogat, “The Judge as Spectator,” University of Chicago Law Review 31 (1964): 213, a brilliant analysis of Holmes as a detached Brahmin figure, comparing him with his contemporaries, Henry James and Henry Adams. F.R. Kellogg, “Holmes, Common Law Theory, and Judicial Restraint,” John Marshall Law Review 36 (2003): 457, examines Holmes's views in light of his common law ideas. Albert W. Altschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (2000), is a stinging attack on Holmes's alleged lack of morals in his jurisprudence.

Edmund Wilson's essay on Holmes in Patriotic Gore (1963), Wilson's collection of writings on the Civil War, remains one of the most insightful and best-written analyses of Holmes, demonstrating that one need not have professional legal training to produce lucid evaluations of legal figures.

Noteworthy Opinions

Otis v. Parker, 187 U.S. 606 (1903)

Northern Securities Co. v. United States, 193 U.S. 197 (1904) (Dissent)

Swift & Company v. United States, 196 U.S. 375 (1905)

Lochner v. New York, 198 U.S. 45 (1905) (Dissent)

Patterson v. Colorado, 205 U.S. 454 (1907)

Noble State Bank v. Haskell, 219 U.S. 104 (1911) (Dissent)

Bailey v. Alabama, 219 U.S. 219 (1911) (Dissent)

Dr. Miles Medical Company v. John D. Park & Sons Company, 220 U.S. 373 (1911) (Dissent)

United States v. Reynolds, 235 U.S. 133 (1914) (Concurrence)

Coppage v. Kansas, 236 U.S. 1 (1914) (Dissent)

Fox v. Washington, 236 U.S. 273 (1915)

Hammer v. Dagenhart, 247 U.S. 251 (1918) (Dissent)

Schenck v. United States, 249 U.S. 47 (1919)

Frohwerk v. United States, 249 U.S. 204 (1919)

Debs v. United States, 249 U.S. 211 (1919)

Abrams v. United States, 250 U.S. 616 (1919) (Dissent)

Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922)

Adkins v. Children's Hospital, 261 U.S. 525 (1923) (Dissent)

Gitlow v. New York, 268 U.S. 652 (1925) (Dissent)

Buck v. Bell, 274 U.S. 200 (1927)

United States v. Schwimmer, 279 U.S. 644 (1929) (Dissent)


Document Citation
Holmes, Oliver Wendell Jr., in Biographical Encyclopedia of the Supreme Court 255 (Melvin I. Urofsky ed., 2006),
Document ID: bioenc-427-18167-979277
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