Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice of the U.S. Supreme Court from 1902 to 1932.Holmes was Acting Chief Justice of the United States in February 1930. This was because Chief Justice William Howard Taft resigned from the Court on February 3 and was not replaced until February 24. Novick, Honorable Justice, pp. 370-371. Holmes is one of the most widely cited and influential Supreme Court justices in American history, noted for his long tenure on the Court and for his pithy opinionsparticularly those on civil liberties and American constitutional democracyand deference to the decisions of elected legislatures. Holmes retired from the Court at the age of 90, an unbeaten record for oldest justice on the Supreme Court.John Paul Stevens was only eight months younger when he retired on April 12, 2010. He previously served the Union as a brevet colonel in the American Civil War (in which he was wounded three times), as an associate justice and chief justice of the Massachusetts Supreme Judicial Court, and as Weld Professor of Law at his alma mater, Harvard Law School. His positions, distinctive personality, and writing style made him a popular figure, especially with American progressives.Louis Menand, ed., Pragmatism: A Reader. New York: Vintage Books, 1997, p. xxix.
During his tenure on the U.S. Supreme Court, to which he was appointed by President Theodore Roosevelt in 1902, he supported the constitutionality of state economic regulation and came to advocate broad freedom of speech under the First Amendment, after, in Schenck v. United States (1919), having upheld for a unanimous court criminal sanctions against draft protestors with the memorable maxim that "free speech would not protect a man in falsely shouting fire in a theatre and causing a panic" and formulating the groundbreaking "clear and present danger" test.Schenck v. United States, 249 U.S. 47, 52 (1919). Later that same year, in his famous dissent in Abrams v. United States (1919), he wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market.... That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment." He added that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death...."Abrams v. United States, 250 U.S. 616, 630 (1919).
The University of Chicago Law Review has identified Holmes as the sixth-most-cited American legal scholar of all time. Holmes was a legal realist, as summed up in his maxim, "The life of the law has not been logic: it has been experience". He was also a moral skepticAlschuler, Albert W., Law Without Values. and an opponent of the doctrine of natural law. His jurisprudence and academic writing influenced much subsequent American legal thinking, including the judicial consensus upholding New Deal regulatory law, "sociological jurisprudence in the early twentieth century, and ... much of Legal Realism a generation later".Urofsky, Melvin I. Review of Gary J. Aichele, Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge, The American Journal of Legal History, Vol. 34, No. 1 (Jan. 1990), pp. 81-83.
Early life Holmes was born in Boston, Massachusetts, to the prominent writer and physician Oliver Wendell Holmes Sr. and Amelia Lee Jackson Holmes. Both his parents were of English descent, and all his ancestors had come to North America from England during the early colonial period as part of the Puritan migration to New England.Clark, Thomas Arkle (1900). Oliver Wendell Holmes: Biography and Selections from His Writings. His mother opposed slavery and fulfilled her domestic role as traditionally understood.White, G. Edward (1993). Justice Oliver Wendell Holmes: Law and the Inner Self Dr. Holmes was a leading figure in Boston intellectual and literary circles. Mrs. Holmes was connected to the leading families; Henry James Sr., Ralph Waldo Emerson, and other transcendentalists were family friends.
Known as "Wendell" in his youth, Holmes became lifelong friends with the brothers William James and Henry James Jr. Holmes accordingly grew up in an atmosphere of intellectual achievement and early on formed the ambition to be a man of letters like Emerson. He retained an interest in writing poetry throughout his life. While still in Harvard College he wrote essays on philosophic themes and asked Emerson to read his attack on Plato's idealist philosophy. Emerson famously replied, "If you strike at a king, you must kill him." During his years as a Harvard undergraduate, Holmes was a devoted abolitionist and once served as a bodyguard for Wendell Phillips, the radical abolitionist leader.White, G. Edward (1993), p. 32. He was also a member of Alpha Delta Phi fraternity, the Hasty Pudding and the Porcellian Club; his father had also been a member of both clubs. In the Pudding, he served as Secretary and Poet, as had his father.Novick, Sheldon M., Honorable Justice: The Life of Oliver Wendell Holmes, Little, Brown and Company, 1989, p. 26. Holmes graduated Phi Beta Kappa and cum laude from Harvard in 1861, and, in the spring of that year, after President Abraham Lincoln called for volunteers following the firing on Fort Sumter, he enlisted in the Massachusetts militia but returned briefly to Harvard College to participate in commencement exercises.Novick, pp. 34–37.
Civil War
During his senior year of college, at the outset of the American Civil War, Holmes enlisted in the Fourth Battalion of Infantry in the Massachusetts militia. Then, in July 1861, with his father's help, he received a commission as second lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry.Commonwealth of Massachusetts, He saw considerable combat, taking part in the Peninsula Campaign and the Battle of the Wilderness, being wounded at the Battle of Ball's Bluff, Antietam, and Chancellorsville, and suffering from a near-fatal case of dysentery. He particularly admired and was close to Henry Livermore Abbott, a fellow officer in the 20th Massachusetts. Holmes rose to the rank of lieutenant colonel, but eschewed command of his regiment upon his promotion. Abbott took command of the regiment in his place and was later killed.G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self. New York, 1993, 78.
In September 1863, while recovering at the Holmes family home on Charles Street in Boston from his third major combat injury, Holmes was promoted to colonel, but he never returned to the 20th Massachusetts because the unit had been largely destroyed. Upon his recovery, in January 1864 Holmes was appointed aide-de-camp of General Horatio Wright, then Division Commander of VI Corps, and later in command of the Corps. Holmes served with Wright during General Grant's campaign down to Petersburg, returning to Washington with the Sixth Corps when the Capital was threatened in July 1864. On July 17, 1864, Holmes was mustered out at the end of his enlistment term, returning to Boston and enrolling at Harvard Law School later that year.
Holmes is said to have shouted to Abraham Lincoln to take cover during the Battle of Fort Stevens, although this is commonly regarded as apocryphal.James M. McPherson, Battle Cry of Freedom. (New York: Oxford University Press, 1988) 757.James G. Randall and Richard N. Current, Lincoln the President: Last Full Measure (New York: Dodd, Mead and Company, 1955), 200.Benjamin P. Thomas, Abraham Lincoln: A Biography (Carbondale, Illinois: Southern Illinois University Press, 1952), 434.G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self. New York: Oxford University Press, 1993, 64–65. Holmes himself expressed uncertainty about who had warned Lincoln ("Some say it was an enlisted man who shouted at Lincoln; others suggest it was General Wright who brusquely ordered Lincoln to safety. But for a certainty, the 6 foot 4 inch Lincoln, in frock coat and top hat, stood peering through field glasses from behind a parapet at the onrushing rebels.") and other sources state he likely was not present on the day Lincoln visited Fort Stevens.Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes, pp. 88, 372, 422 n.37
Legal career Lawyer
In the summer of 1864, Holmes returned to the family home in Boston, wrote poetry, and debated philosophy with his friend William James, pursuing his debate with philosophic idealism, and considered re-enlisting. By the fall, when it became clear that the war would soon end, Holmes enrolled in Harvard Law School, "kicked into the law" by his father, as he later recalled. He attended lectures there for a single year, reading extensively in theoretical works, and then clerked for a year in his cousin Robert Morse's office. In 1866, he received a Bachelor of Laws degree from Harvard, was admitted to the Massachusetts bar, and after a long visit to London to complete his education went into law practice in Boston. He joined a small firm, and in 1872 married a childhood friend, Fanny Bowditch Dixwell, buying a farm in Mattapoisett, Massachusetts, the following year. Their marriage lasted until her death on April 30, 1929. They never had children. They did adopt and raise an orphaned cousin, Dorothy Upham. Fanny "had a charming public persona. She could also be quiet and unassuming.... She was essentially a shy and private woman [and] stand-offish.... As she grew older, her inclination to solitude became more pronounced, and in time she became a virtual recluse...".Baker, Liva (1991), pp. 220–221.
Whenever he could, Holmes visited London during the social season of spring and summer, and during his years as a lawyer and judge in Boston he formed romantic friendships with English women of the nobility, with whom he corresponded while at home in the United States. The most important of these was his friendship with the Anglo-Irish Clare Castletown, the Lady Castletown, whose family estate in Ireland, Doneraile Court, he visited several times, and with whom he may have had a brief affair.Novick Honorable Justice , pp. 207–220.See also , which refers to an "adulterous love-affair" between Holmes and Clare Castletown. He formed his closest intellectual friendships with British men and became one of the founders of what was soon called the "sociological" school of jurisprudence in Great Britain, followed a generation later by the "legal realist" school in America.
Holmes practiced admiralty law and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the new American Law Review, reporting decisions of state supreme courts, and preparing a new edition of Kent's Commentaries, which served practitioners as a compendium of case law, at a time when official reports were scarce and difficult to obtain. He summarized his hard-won understanding in a series of lectures, collected and published as The Common Law in 1881.
The Common Law
The Common Law has been continuously in print since 1881 and remains an important contribution to jurisprudence. The book also remains controversial, for Holmes begins by rejecting various kinds of formalism in law. In his earlier writings he had rejected utilitarianism,Novick (2013), p. 141. as well the views of the German idealist philosophers, who believed that the opinions of judges could be harmonized in a purely logical system. In the opening paragraphs of the book, he famously summarized his own view of the history of the common law: