The Principles of Oliver Wendell Holmes

“Talks too much” was the comment on the first report card of Oliver Wendell Holmes, Jr., the future Supreme Court justice and founder of the constitutional law of free speech. Wendy Holmes (as he was known to his intimates) was six. He lived for another eighty-seven years, and no one ever accused him of keeping his views to himself. He opined regularly to dozens of correspondents, among them the English jurist Sir Frederick Pollock (their letters are collected in two volumes), the political theorist Harold Laski (two volumes), the Washington lawyer Felix Frankfurter (one volume), the diplomat Lewis Einstein (one volume), the Irish priest Patrick Augustine Sheehan (one volume), the progressive journalist and eccentric Franklin Ford (one volume), the philosopher Morris R. Cohen, the Chinese jurist John Wu, the Japanese nobleman Kentaro Kaneko, and a stable of female confidants that included Nina Gray, Alice Stopford Green, Baroness Charlotte Moncheur, and Holmes’s Anglo-Irish paramour, Lady Clare Castletown, of Granston Manor, Upper Os- sory, Ireland.
When Holmes’s brothers on the bench—he served for twenty years on the Supreme Judicial Court of Massachusetts and for thirty years, beginning in 1902, on the Supreme Court of the United States—fell behind in the production of opinions, he begged his chiefs to reassign their cases to him. In the end, he wrote over two thousand opinions, believed to be a record for judges sitting in courts of last resort. It was his habit, every few years, to refresh himself by traveling to England, leaving his wife behind, where he sought out the company of the leading philosophical and literary lights of the land and where he flirted aggressively with most of the women he met, once going so far in his banter with the twelve-year- old daughter of one of his hosts, Tom Hughes, the author of Tom Brown’s School Days, that Hughes sent a letter afterward demanding to know Holmes’s intentions. He had none, except to experience once again the pleasure of his own flamboyance. “He would catch a subject, toss it in the air, make it dance and play a hundred tricks, and bring it to solid earth again,” an English acquaintance described his social manner. “He liked to have the ball caught and tossed back to him, so that he could send it spinning away again with a fresh twist.”
Holmes’s father, Dr. Oliver Wendell Holmes, Sr., a pioneer of the germ theory of disease, the author of the patriotic poem “Old Ironsides,” cofounder of the Atlantic Monthly (whose name he came up with), coiner of the term “Boston Brahmin,” the first person to refer to Boston as “the Hub of the Solar System,” and dean of the Harvard Medical School, was said to have been the greatest talker of his day. He thought the talent worth acquiring, and made it a rule that any child who uttered a clever remark at the dinner table be given extra marmalade. Holmes Sr. was five feet three and round; his son, fully grown, was six-three and lean, and their relations were notoriously fractious. But this was one trait that got passed along.
The law provided Holmes with a steady supply of occasions to exercise his gift for turning a phrase, but he did not allow the engine to idle. Early in his career, when he was in practice in Boston, he would walk into the office in the morning and announce to one of his firm’s junior associates, “Mr. Evans, I am ready to contradict any statement you will make.” Mr. Evans evidently felt it his duty, each morning, to oblige. Fifty years later, Holmes liked to tell his colleagues on the Supreme Court, when they were conferring about a case, that he would admit any general principle of law they proposed, and then use it to decide the case under discussion either way. It was not persiflage, or it was not only persiflage. Holmes had a profound appreciation for the malleability of words, and that ap-preciation is the demon that sits at the bottom of his thought. His challenge to his fellow justices was not an excuse to show off his forensic dexterity; he was making a point about the nature of lan¬guage. There have been hundreds of efforts since Holmes published The Common Law, in 1881, when he was thirty-nine, to sew a political label on him. Commentators have tried to prove that he was a progressive, a liberal, a civil libertarian, a democrat, an aristo-crat, a reactionary, a Social Darwinist, and a fascist. But none of these efforts has gotten to the core of what Holmes did, because all of them have mistaken the implications for the premises. They have focused on the accidents of his thought.
Calling Holmes a progressive or a reactionary is like calling, say, Wittgenstein a progressive or a reactionary. It assumes that he was interested in the political consequences of his ideas. But one thing that can be said with certainty about Holmes as a judge is that he almost never cared, in the cases he decided, about outcomes. He didn’t read the newspaper, and he was utterly, sometimes fantastically, indifferent to the real-world effects of his decisions. He saw the law as a series of minutely varied, frequently boring, but sometimes delightfully nasty intellectual problems. These took the form, in his view, of concrete conflicts, each with some slight but potentially crucial point of difference from the rest, submitted for resolution by the ultimately absurd process of reasoning out a result from abstract principles. From the very beginning of his career, Holmes regarded the reasoning part as factitious and, in its relation to the result, logically ex post facto. “It is the merit of the common law that it decides the case first and determines the principle afterwards,” is the first sentence of the first legal article he ever published, “Codes, and the Arrangement of the Law” (1870), and he spent the next sixty-two years as a jurist and a judge trying to be faithful to this insight. That it was an impossible task by definition—as though one were to make it a principle never to rely on principles—seems only to have whetted his sense of sport.

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