Holmes, Oliver Wendell, Jr. (1841–1935)

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HOLMES, OLIVER WENDELL, JR. (1841–1935)

When he was appointed to the Supreme Court in 1902, at the age of sixty-one, he was best known to the general public as the son of a famous poet and man of letters; when he retired, thirty years later, he had been called "the greatest of our age in the domain of jurisprudence, and one of the greatest of the ages." Oliver Wendell Holmes's thirty years on the Supreme Court unquestionably made his reputation, and yet those years, given the aspirations of Holmes's earlier career, were years in which his mood as a judge can best be described as resignation. He was not able to achieve anything like what he thought he could achieve as a judge; regularly he confessed his inability to do anything other than ratify "what the crowd wants." He wryly suggested that on his tombstone should be inscribed "here lies the supple tool of power," and he allegedly told john w. davis that "if my country wants to go to hell, I am here to help it." For these expressions of resignation he was called "distinguished," "mature," and "wise," the "completely adult jurist." The constitutional jurisprudence of Holmes could be called a jurisprudence of detachment, indifference, or even despair; yet it was a jurisprudence in which contemporary commentators reveled.

Holmes's career hardly began with his appointment to the Court. He had previously written The Common Law, a comprehensive theoretical organization of private law subjects, taught briefly at Harvard Law School, and served for twenty years as a justice on the Massachusetts Supreme Judicial Court. Although he had not considered many constitutional cases as a state court judge, he had a distinctive philosophy of judging. There was little difficulty in the transition from the Massachusetts court to the Supreme Court; Holmes simply integrated a new set of cases with his preexistent philosophy. That philosophy's chief postulate was that judicial decisions were inescapably policy choices, and that a judge was better off if he did not make his choices appear too openly based on the "sovereign prerogative" of his power.

Arriving at that postulate had been an unexpected process for Holmes. He was convinced, at the time he wrote The Common Law (1881), that private law could be arranged in a "philosophically continuous series." His lectures on torts, criminal law, property, and contracts stressed the ability of those subjects to be ordered by general principles and the desirability of having judges ground their decisions in broad predictive rules rather than deferring to the more idiosyncratic and less predictable verdicts of juries. Holmes had accepted a judgeship in part because he believed that he could implement this conception of private law. Academic life was "half-life," he later said, and judging gave him an opportunity to "have a share in the practical struggle of life."

In practice, however, Holmes found that the law resisted being arranged in regular, predictable patterns. Too many factors operated to create dissonance: the need for court majorities to congeal on the scope and language of a decision; the insignificance of many cases, which were best decided by routine adherence to precedent; the very difficult and treacherous policy choices truly significant cases posed, fostering caution and compromise among judges. The result, for Holmes, was that legal doctrine developed not as a general progression toward a philosophically continuous series but rather as an uneven clustering of decisions around opposing "poles" that represented alternative policy judgments. "Two widely divergent cases" suggested "a general distinction," which initially was "a clear one." But "as new cases cluster[ed] around the opposite poles, and beg[a]n to approach each other," the distinction became "more difficult to trace." Eventually an "arbitrary … mathematical line" was drawn, based on considerations of policy.

Thus judging was ultimately an exercise in making policy choices, but since the choices were often arbitrary and judges had "a general duty not to change but to work out the principles already sanctioned by the practice of the past," bold declarations of general principles were going to be few and far between. Indeed in many cases whose resolution he thought to turn on "questions of degree," or "nice considerations," or line drawing, Holmes attempted, as a state court judge, to avoid decision. He delegated "questions of degree" to juries where possible; he relied on precedents even where he felt that they had ceased to have a functional justification; he adhered to the findings of trial judges; he resorted to "technicalities" to "determine the precise place of division." And on those relatively few occasions when he was asked to consider the impact of a legislature's involvement, Holmes tended to defer to legislative solutions, especially in close cases. "Most differences," he said in one case, were "only one[s] of degree," and "difference of degree is one of the distinctions by which the right of the legislature to exercise the state police power is determined." Deference to the legislature was another means of avoiding judicial policy choices.

Holmes thus brought a curious, if consistent, theory of judging with him to the Supreme Court. Although his original aim as a legal scholar had been the derivation of general guiding principles in all areas of law, as a judge he had concluded that principles were not derived in a logical and continuous but in a random and arbitrary fashion, and that in hard cases, where principles competed, policy considerations dictated the outcome. Judges should be sensitive to the fact that cases did involve policy choices, but they should exercise great caution in making them. Hard cases, turning on "questions of degree" or "nice considerations" should be delegated to other lawmaking bodies, such as the jury and the legislature, that were closer to the "instinctive preferences and inarticulate convictions" of the community. What started out as a theory of bold, activist judicial declarations of principle had ended as a theory of deference to lawmakers who were more "at liberty to decide with sole reference … to convictions of policy and right." The creative jurist of The Common Law had become the apostle of judicial self-restraint.

In his first month on the Supreme Court Holmes wrote to his longtime correspondent Sir Frederick Pollock that he was "absorbed" with the "variety and novelty of the questions." And indeed Holmes's docket was strikingly different from that he had encountered as a Massachusetts state judge: more federal issues, a greater diversity of issues, and far more cases involving the constitutionality of legislative acts. But the new sets of cases did not require Holmes to modify his theory of judging; they merely emphasized his inclination to defer hard policy choices to others. As a Massachusetts state judge Holmes had found only one act of the Massachusetts legislature constitutionally invalid; as a Supreme Court justice he was to continue that pattern. His first opinion, Otis v. Parker (1902), sustained a California statute prohibiting sales of stock shares on margin on the ground that although the statute undoubtedly restricted freedom of exchange, that "general proposition" did not "take us far." The question was one of degree: how far could the legislature restrict that freedom? Since the statute's ostensible purpose, to protect persons from being taken advantage of in stock transactions, was arguably rational, Holmes's role was to defer to the legislative judgments.

Otis v. Parker set a pattern for Holmes's decisions in cases testing the constitutionality of economic regulations. Rarely did he find that questions posed by statutes were not ones of "degree"; rarely did he fail to uphold the legislative judgment. He believed that the New York legislature could regulate the hours of bakers (lochner v. new york, 1905) even though he thought that hours and wages laws merely "shift[ed] the burden to a different point of incidence." He supported prohibition and antitrust legislation notwithstanding his beliefs that "legislation to make people better" was futile and that the sherman act was "damned nonsense." His position, in short, was that "when a State legislature has declared that in its opinion policy requires a certain measure, its actions should not be disturbed by the courts … unless they clearly see that there is no fair reason for the law."

Deference for Holmes did not mean absolute passivity. He thought Congress and the states had gone too far in convicting dissidents in a number of war-related speech cases, including abrams v. united states (1919) (the case in which he proposed the clear and present danger test), gitlow v. new york (1924), and united states v. schwimmer (1928). He invalidated a Pennsylvania statute that regulated mining operations without adequate compensation in Pennsylvania Coal Company v. Mahon (1922). He did not think that Congress could constitutionally allow the postmaster general to deny "suspicious" persons access to the mails, and said so in two cases, Milwaukee Socialist Democratic Publishing Co. v. Burleson (1920) and Leach v. Carlile Postmaster (1921). And he struck down a Texas statute denying blacks eligibility to vote in primary elections in nixon v. herndon (1922), declaring that "states may do a good deal of classifying that it is difficult to believe rational, but there are limits."

Holmes was called, especially in the 1920s, the "Great Dissenter," and some of his dissenting opinions were memorable for the pithiness of their language. In Lochner v. New York (1905), Holmes protested against the artificiality of the freedom of contract argument used by the majority by saying that "the fourteenth amendment does not enact Mr. Herbert Spencer's Social Statics. " In Abrams he said that "the best test of truth is the power of the thought to get itself accepted in the competition of the market," and that "every year … we have to wager our salvation upon some prophecy based on imperfect knowledge." And in Olmstead v. United States (1928), he decried the use of wiretapping by federal agents: "I think it a less evil that some criminals should escape than that the government should play an ignoble part."

Each of these dissents was subsequently adopted as a majority position by a later Court. Freedom of contract was repudiated as a constitutional doctrine in west coast hotel v. parrish (1937); Holmes's theory of free speech was ratified by the Court in such decisions as herndon v. lowry (1937) and yates v. united states (1957); and katz v. united states (1967) and berger v. new york (1967) overruled the majority decision in Olmstead. Despite the eventual triumph of Holmes's position in these cases and despite the rhetorical force of his dissents, "Great Dissenter" is a misnomer by any standard other than a literary one. Holmes did not write an exceptionally large number of dissents, given his long service on the Court, and his positions were not often vindicated.

Holmes's dissents also gave him the reputation among commentators as being a "liberal" justice. But for every Holmes decision protecting civil liberties one could find a decision restricting them. The same Justice who declared in Abrams v. United States (1919) that "we should be eternally vigilant against attempts to check the expression of opinions" held for the Court in buck v. bell (1927) that a state could sterilize mental defectives without their knowing consent. "It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind," Holmes argued. "Three generations of imbeciles are enough."

Holmes supported the constitutionality of laws prohibiting child labor, defended the right of dissidents to speak, and resisted government efforts to wiretap bootleggers. At the same time he upheld the compulsory teaching of English in public schools, supported the rights of landowners in child trespasser cases, and helped develop a line of decisions giving virtually no constitutional protection to aliens. For a time critics ignored these latter cases and followed the New York Times in calling Holmes "the chief liberal of the supreme bench for twenty-nine years," but recent commentary has asserted that Holmes was "largely indifferent" to civil liberties.

Holmes's constitutional thought, then, resists ideological characterization and is notable principally for its limited interpretation of the power of judicial review. How thus does one explain Holmes's continued stature? In an age where judicial activism, especially on behalf of minority rights, is a commonplace phenomenon, Holmes's interpretation of his office appears outmoded in its circumscription. In an age where the idea of rights against the state has gained in prominence, Holmes's decisions appear to tolerate altogether too much power in legislative majorities. Only in the speech cases does Holmes seem to recognize that the contribution of dissident minorities can prevent a society's attitudes from becoming provincial and stultifying. Elsewhere Holmes's jurisprudence stands for the proposition that the state, as agent of the majority, can do what it likes until some other majority seizes power. That hardly seems a posture inclined to elicit much contemporary applause.

Yet Holmes's reputation remains, on all the modern polls, among the highest of those Justices who have served on the Supreme Court. It is not likely to change for three reasons. First, in an era that was anxious to perpetuate the illusion that judicial decision making was somehow different from other kinds of official decision making, since judges merely "found" or "declared" law, Holmes demonstrated that judging was inescapably an exercise in policymaking. This insight was a breath of fresh air in a stale jurisprudential climate. Against the ponderous intonations of other judges that they were "making no laws, deciding no policy, [and] never entering into the domain of public action," Holmes offered the theory that they were doing all those things. American jurisprudence was never the same again.

Second, Holmes, as a sitting judge, followed through the implications of his insight. If judging was inevitably an exercise in policy choices, if all legal questions eventually became "questions of degree," then there was much to be said for judges' avoiding the arbitrary choice. Other institutions existed whose mandate for representing current community sentiment seemed clearer than the judiciary's; judging could be seen as an art of avoiding decision in cases whose resolution appeared to be the arbitrary drawing of a line. In a jurisprudential climate that was adjusting to the shock of realizing that judges were making law, Holmes's theory of avoidance seemed to make a great deal of sense. Federal judges were not popularly elected officials; if they made the process of lawmaking synonymous with their arbitrary intuitions, the notion of popularly elected government seemed threatened. The wisdom in Holmes's approach to judging seemed so apparent that it took the warren court to displace it.

These first two contributions of Holmes, however, can be seen as having a historical dimension. To be sure, seeing judges as policymakers was a significant insight, but it is now a commonplace; judicial deference was undoubtedly an influential theory, but it has now been substantially qualified. The enduring quality of Holmes appears to rest on his having a first-class mind and in his unique manner of expression: his style. No judge has been so quotable as Holmes; no judge has come closer to making opinion writing a form of literature. Paradoxically, Holmes's style, which is notable for its capacity to engage the reader's emotions in a manner that transcends time and place, can be seen as a style produced out of indifference. The approach of Holmes to his work as a judge was that of a person more interested in completing his assigned tasks than in anything else. Holmes would be assigned opinions at a Saturday conference and seek to complete them by the following Tuesday; his opinions are notable for their brevity and their assertiveness. The celebrated epigrams in Holmes's opinions were rarely essential to the case; they were efforts to increase the emotional content of opinions whose legal analysis was often cryptic.

Holmes's style of writing was of a piece with his general attitude toward judging. Since judging was essentially an effort in accommodating competing policies, the outcome of a given case was relatively insignificant. Just where the line was drawn or where a given case located itself in a "cluster" of related cases insignificant. One might as well, as a judge, announce one's decision as starkly and vividly as one could. A sense of the delicacy and ultimate insignificance of the process of deciding a case, then, fostered a vivid, emotion-laden, and declarative style.

Thus the legacy of Holmes's constitutional opinions is an unusual one. As contributions to the ordinary mine run of legal doctrine, they are largely insignificant. Their positions are often outmoded, their analyses attenuated, their guidelines for future cases inadequate. One feels, somehow, that Holmes has seen the clash of competing principles at stake in a constitutional law case, but has not probed very far. Once he discovered what was at issue, he either avoided decision or argued for one resolution in a blunt, assertive, and arbitrary manner. One cannot take a Holmes precedent and spin out the resolution of companion cases; one cannot go to Holmes to find the substantive bottomings of an area of law. Holmes's opinions are like a charismatic musical performance: one may be inspired in the viewing but one cannot do much with one's impressions later.

As literary expressions, however, Holmes's opinions probably surpass those of any other Justice. While it begs questions and assumes difficulties away to say that "a policeman may have a constitutional right to talk politics, but he has no constitutional right to be a policeman," the vivid contrast catches one's imagination. While "three generations of imbeciles are enough" was a misstatement of the facts in Buck v. Bell and represents an attitude toward mentally retarded persons one might find callous, it engages us, for better or worse. In phrases like these Holmes will continue to speak to subsequent generations; his constitutional opinions, and consequently his constitutional thought, will thus endure. It is ironic that Holmes bequeathed us those vivid phrases because he felt that a more painstaking, balanced approach to judging was futile. He thought of judging, as he thought of life, as "a job," and he got on with it.

G. Edward White
(1986)