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H, Holmes, Oliver Wendell

Edited By: Kermit L. Hall, James W. Ely Jr., Joel B. Grossman

From: The Oxford Companion to the Supreme Court of the United States (2nd Edition)

Edited By: Kermit L. Hall

From: Oxford Constitutions (http://oxcon.ouplaw.com). (c) Oxford University Press, 2023. All Rights Reserved. Subscriber: null; date: 07 June 2023

Holmes, Oliver Wendell

(b. Boston, Mass., 8 Mar. 1841; d. Washington, D.C., 6 Mar. 1935; interred Arlington National Cemetery, Arlington, Va.), associate justice, 1902–1932. Holmes was born in Boston to a family of moderate means. His father, for whom he was named, was a physician and littérateur who supplemented the income from a meager Boston medical practice with lectures on anatomy at the Harvard Medical School and lectures on literary subjects to general audiences. The elder Holmes was a gifted conversationalist and a compulsive writer of light verse; in 1856, when his son was just entering college, Dr. Holmes began writing a series of essays and poems, collectively titled The Autocrat of the Breakfast Table, for The Atlantic Monthly; his work became immensely popular in Great Britain and the United States. Like his father, the younger Holmes was intensely talkative, with a light, combative manner and a knack for verse rhythms and imagery.

Mrs. Holmes, born Amelia Lee Jackson, the daughter of a prominent Boston lawyer and judge, Charles Jackson, married late and devoted herself to her husband and three children, of whom the future Supreme Court justice was the first. Holmes—tall, thin, lantern-jawed—resembled his mother more than his short, round-faced father, and he was deeply affected by her. He was her favorite, and he acquired a secure self-confidence as a result. He also received from his mother a powerful sense of duty and a talent for strong, warmly affectionate friendships. With his sense of duty came an unyielding adherence to the factual, a sharp skepticism for all but the self-evident, and a near-mystical acceptance of whatever in life seemed irrevocably given.


Holmes attended private schools and Harvard College, but the principle influences on his intellectual development were outside the classroom. He acquired early, as an article of faith, belief in a pre-Darwinian doctrine of evolution(p. 468)

Oliver Wendell Holmes

compounded of the theories of Thomas Malthus and German romanticism. In later life, Holmes said that the great figures of his youth, other than his father, were John Ruskin, Thomas Carlyle, and Ralph Waldo Emerson. He probably absorbed their ideas as much from conversation in his father’s house, where Emerson and other literary figures were occasional callers, as from his reading. Emerson passed on the “ferment” of philosophical inquiry to Holmes, partly by encouraging his combative independence of mind.

In his undergraduate essays Holmes announced the need for a “rational” explanation of duty, a sort of scientific substitute for religion, which he sought in an evolutionary, “scientific” account of both history and philosophy.

The other great influence on his youth was a revival of chivalry then sweeping over the United States and Great Britain, partly inspired by the poems and novels of Alfred, Lord Tennyson and Sir Walter Scott. Like many of his contemporaries Holmes acquired a lifelong commitment to courtly ideals and conduct. Chivalry was the code of duty for which he sought—and, ultimately believed he had found—scientific justification.

Early Career.

Holmes enlisted in the federal army in July 1861, shortly after the *Civil War had broken out; he obtained a commission as a lieutenant and served for two years in the Twentieth Massachusetts Volunteer Infantry at Ball’s Bluff, the Peninsula campaign, and Antietam. In those two years he was wounded three times, twice almost fatally, and suffered from dysentery. Exhausted and reluctant to assume a command for which he had little aptitude, in the winter of 1863–1864 Holmes accepted a post as aide to General Horatio Wright (and then to General John Sedgwick) of the Sixth Corps. In the relative leisure of winter quarters he turned to philosophical writing, in notebooks he later destroyed, developing his combat experience into a materialist, evolutionary philosophy steeped in the conflict of rival nations and races and governed by the rules of chivalry.

He served through the Wilderness campaign and the siege of Vicksburg, and then, exhausted and telling himself that his duty lay in pursuing his philosophy, he left the army before the war’s end and returned home to Boston.

Holmes attended Harvard Law School and in the summer of 1866, to complete his *education, traveled to Great Britain and the Continent. He made a sort of debut in London polite society, was invited to a great many homes, and made lasting friendships. One of the most important was with Leslie Stephen, who greatly reinforced Holmes’s interest in rationalist philosophy, evolution, and chivalry. Throughout his life, Holmes returned to England during the summer social season whenever he could, and kept up an energetic and extensive correspondence with British friends between visits.

On his return to Boston Holmes entered a clerkship and was admitted to the bar in 1867. He briefly gave up practice and attempted a career as an independent scholar, editing the twelfth edition of James Kent’s Commentaries on American Law (1873), writing dozens of brief articles and reviews for the newly formed American Law Review and also occasional poetry. Elements of his later thought were formed in these years, but he did not put them into systematic form.

In 1872 he married a childhood friend, Fanny Dixwell, and joined a Boston law firm, Shattuck, Holmes, and Munroe, which had a busy commercial and admiralty practice. Fanny Holmes became seriously ill with rheumatic fever shortly after their marriage, and Holmes devoted himself to her care and to his law practice for several years. They never had children.


Holmes gradually returned to scholarly work in his spare hours, and in 1876, with “Primitive Notions in Modern Law,” he began a series of essays that presented a systematic analysis of the *common law. He completed the series, somewhat hastily, and presented the essays as the Lowell Lectures in Boston in November and December 1880. They were published as a book, The Common Law, in 1881, a few days before Holmes’s fortieth birthday.

The Common Law, often called the greatest work of American legal scholarship, became one of (p. 469) the founding documents of the *sociological and, then, the realist schools of jurisprudence, and it had a considerable impact on tort and contract law in both the United States and Great Britain. It marked the beginning of empirical studies of judges’ behavior and formed the basis of Holmes’s later work on the Supreme Court.

In Holmes’s view, acquired in twelve years of law practice, judges decided cases first and found reasons afterward. Their actual grounds of decision were based on the “felt necessities” of their time as much as on precedent or purely logical calculation. Consciously or unconsciously, judges expressed the wishes of their class. Law therefore was both an instrument and a result of natural selection. If law was simply an instrument to accomplish certain material ends, it seemed to follow that the law should concern itself solely with external behavior, and Holmes argued that he could discern in the developing common law a trend toward complete reliance on “external standards” of behavior rather than subjective states of mind or personal culpability.

Holmes had labored unsuccessfully, like his predecessors, to make sense of the tangled mass of legal rules of behavior. In 1880, however, he seems to have seen a new organizing principle. The question in every case, Holmes realized, was whether liability would be imposed. His general organizing principle then became clear: liability would be imposed when the breach of a rule of conduct resulted in injuries that an ordinary person would have foreseen. The injuries, and not the breach as such, were the central motive of policy; the law was founded on a policy of avoiding unjustified harms. (It was this insight that later made possible an economic analysis of the law.)

In The Common Law, Holmes argued that law had evolved from more primitive origins toward this still partly unconscious “external standard” and that law would continue to evolve toward a fully self-conscious instrument of social purpose. Holmes’s book itself, presumably, was an important step in this evolution toward self-awareness.

Service on the Massachusetts Court.

After The Common Law appeared, Holmes taught for a single semester at Harvard Law School and then accepted appointment to the Supreme Judicial Court of Massachusetts, where he served for twenty years, becoming chief justice in 1899.

Holmes wrote more than a thousand opinions for the Massachusetts court, most of them deciding common law questions or construing statutes in light of the common law, relentlessly working through the thesis of The Common Law. Holmes generally avoided writing *opinions in constitutional cases, but when obliged to state a view he almost without exception expressed deference to the legislature. His opinions and letters of the time make clear that he based this deference on the English constitutional principle that the legislature was omnipotent, a principle modified in the United States only to the extent that written constitutions contained clear limitations on legislative authority. This was the reasoning of Thomas M. *Cooley’s famous treatise, Constitutional Limitations, a book Holmes had favorably reviewed and had used when teaching, but it would have been a natural enough conclusion from his own approach to jurisprudence.

In the 1890s, Holmes made one last major addition to his system to ideas. In “Privilege, Malice, and Intent,” published in 1894, Holmes discussed *libel and slander cases in which liability was based, at least in part, on the defendant’s state of mind—*actual malice—rather than on an external standard of foreseeable harm. In these cases, Holmes argued, a common-law privilege to do harm, like the privilege accorded to truthful speech, was based on a social policy favoring freedom of speech, but the privilege would be withdrawn when used for a malicious purpose. Holmes maintained that a general policy of avoiding unjustified harms was the basis of the privilege as well as the defense of actual malice, which accordingly were consistent with the thesis of The Common Law. He would later incorporate this theory into his opinions on the *First Amendment. In 1896, he applied the theory in dissenting opinions in which he argued that a privilege should be extended to trade unions to organize and picket peacefully so long as these activities were carried on without malice.

Holmes strongly suggested that in English and American cases in which unions’ right to conduct strikes or boycotts had been denied, judges had typically been biased by class prejudice. He argued forcefully that it was the duty of a judge to decide cases fairly, even if the result appeared dangerous to his class interests.

This argument seemed consistent with Holmes’s theory that judges were instruments of the dominant force in society, but he never adequately explained the seeming contradiction of his Darwinist views, which he continued to affirm.

Service on the Supreme Court.

On 11 August 1902, President Theodore Roosevelt nominated Holmes to the U.S. Supreme Court. He took his seat on 8 December 1902, and thereupon seemed to come into his own. After thirty-five years of trying to extract philosophical principles from the most meager materials, petty disputes and sordid crimes, he for the first time was addressing great (p. 470) questions of public life and national policy. With a new self-confidence, he developed opinion writing into an art with a very personal stamp; while his opinions were often difficult to follow and were criticized for over brevity and obscurity, they often achieved a unique beauty and power.

Holmes served on the Supreme Court for thirty years, under four chief justices. Through his longevity and his talent for getting cases assigned to him, he wrote 873 opinions for the Court, more than any other justice. He wrote proportionately fewer *dissents than many justices, but as these were particularly forceful and well written they are the best-known of his opinions. A handful of his dissents, especially in substantive *due process and free *speech cases, are now cited as precedent.

The Court in those years believed it had the power to base decisions on general principles of common law. Holmes, although he had done more to elucidate such general principles than anyone else, doubted whether they were a “brooding omnipresence in the sky” and insisted the Court must refer to the law of some actual jurisdiction. His views prepared the way for the decision after his death, in *Erie Railroad Co. v. Tompkins (1938), that there was no general *federal common law.

When construing statutes, the Court did not yet consult “legislative history,” and Holmes’s readings of statutes were carefully limited to the four corners of the statutes themselves. Where meanings of terms were not clear he consulted the common law, in accordance with the canon that if words had an established meaning in common law, Congress was assumed to have used them in that sense.

Antitrust Cases.

Thus, in a famous line of dissents, Holmes insisted that that *Sherman Antitrust Act, by its plain language, did not prevent former competitors from merging, as at common law such mergers were not “combinations in restraint of trade.” On similar grounds, he argued that the Sherman Act did not prohibit retail price maintenance agreements or forbid trade associations in which price and production data were exchanged. In these opinions Holmes insisted that the majority read their own unstated economic views into the statute. Holmes was at pains to expose these “inarticulate premises,” and in the process he expressed his own views of economics in compressed form.

Holmes believed that the Sherman Antitrust Act was an “imbecile statute” that, he said in a letter, aimed “at making everyone fight and forbidding anyone to be victorious.” Dissenting from the Court’s opinion that retail price maintenance agreements violated the Sherman Act, Holmes said that the Court majority’s apparent policy was mistaken: competition within a sector of industry had little effect on price, and accordingly their reason for applying the Sherman Act failed even on policy grounds. Similarly, while upholding trade unions’ right to organize and strike, he maintained that higher wages would be obtained by unions only at the cost of other workers. (See also antitrust.)

The basis for these views was his often-expressed conviction that the “stream of products,” by which he apparently meant something like the gross national product, was fixed at any one time and that any increase was quickly absorbed by the growth of population. He believed further that the share withdrawn by the wealthy capitalist class for its own consumption was minuscule in comparison to the total (see capitalism). If essentially all the wealth in society was consumed by the large mass of its citizens, it seemed to follow by an iron logic that workers competed with each other, not with capitalists, for a larger share of the national product and that prices reflected not costs or competition but the share of the product that consumers were willing to give to any one commodity. Proposals for economic reform, redistribution of wealth, and enhanced competition, therefore seemed to him equally wrong. He insisted that the only hope for improved living conditions lay in eugenics and population control—“taking life in hand”—a view brutally expressed in his opinion in *Buck v. Bell, upholding Virginia’s compulsory sterilization law.

Constitutional Cases.

Holmes’s most important opinions concerned constitutional law. Holmes believed that the Constitution, too, should be construed in light of the common law. The general terms of the Constitution—freedom of speech, due process of law—were to be understood as embodying “relatively fundamental principles of right” found in the common law (see fundamental rights). As that law was changing, so too were the meanings of constitutional terms evolving: as he wrote, “A word is not a crystal, transparent and unchanging, but the skin of a living thought.” Fundamental principles were to be viewed from the perspective of centuries, a perspective from which universal suffrage was a recent innovation, and property rights were by no means fixed or eternal.

To Holmes the fundamental guarantees revolved around fairness in judicial proceedings. He objected to the unrestrained investigations of the *Interstate Commerce Commission, which seemed to compel *self-incrimination. He refused to accept a procedure of empty forms when African-American and Jewish defendants were tried in lynch-mob settings in the South. He insisted on the right of the federal courts to intervene in state proceedings by writ of *habeas corpus. He wrote opinions limiting the power of (p. 471) courts to punish *contempt summarily, without trial. But when a lynch mob defied the Court’s *habeas corpus decree, he managed the criminal contempt trial, the only criminal trial ever held in the Supreme Court (United States v. Shipp, 1906).

Holmes was much more deferential to the states and to the other branches of government with regard to substantive guarantees of the Constitution. In his first opinion for the Court, Otis v. Parker (1902), he embraced the doctrine of “substantive *due process” but gave it sharply narrowed scope. Substantive due process was the doctrine that the guarantee of due process of law extended by the *Fifth and *Fourteenth Amendments ensured more than a fair hearing in court. It was held to ensure that legislation also met some minimum requirements, but the Court had not very clearly articulated what those requirements were. In Otis Holmes identified them as “relatively fundamental principles of right” of the common law. His opinions over the years elucidated these fundamental principles, which were essentially those rights recorded in the *Bill of Rights, which Holmes called evolving institutions “transplanted from English soil” (Gompers v. United States, 1914, p. 610).

Although the term “substantive due process” has been discredited, Holmes’s opinions and dissents presage the modern view that the due process guarantee in the Fourteenth Amendment *“incorporates” the Bill of Rights and makes it applicable to the states (see incorporation doctrine). Holmes did not take an expansive view of these rights. He had grown up in a world in which the right to *vote was still limited to men of property, and his views of the power of government were formed in the Civil War. Although he had nearly given his life in the Abolitionist cause and was nearly free of racial prejudice as anyone of his time in public life, he repeatedly avoided any defense of the right of African-Americans to vote. In Bailey v. Alabama (1911) and United States v. *Reynolds (1914), he dissented from the Court’s decision that southern statutes making it a crime for tenant farmworkers to break their contracts were a form of *peonage. He did not believe that wiretaps were unreasonable searches and seizures forbidden by the *Fourth Amendment, and he expressly rejected a right of *privacy based on the Fourth and Fifth Amendments.

If Holmes took a narrow view of *civil rights, he took a similarly restrained approach to rights of *property. He believed that property rights were created by legislatures and could be undone pretty much at will, the only question usually being whether compensation was owed when the government destroyed a form of property. His opinion in *Pennsylvania Coal Co. v. Mahon (1922) gave the modern formulation of when such compensation is due.

Dissenting in *Lochner v. New York (1905), perhaps his most famous opinion, Holmes argued for the right of New York’s legislature to enact a statute limiting the *labor of bakery workers to ten hours per day. Holmes said that the majority of the Court, in striking down the statute as a violation of due process, had based their opinion on an inarticulate “major premise,” an economic theory that was plainly not a fundamental principle of right. “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,” Holmes famously remarked (p. 75). This dissent is often cited as if it were critical of the whole method of substantive due process, but, as others have noted, Holmes was simply saying that economic principles were not fundamental principles of law.

Free Speech Cases.

Of all Holmes’s opinions the most important and the most controversial were in cases concerning the First Amendment’s guarantee of freedom of speech. During *World War I the federal government had prosecuted thousands of men and women who opposed or resisted mobilization. The first of these cases to come to the Court concerned speeches and leaflets that the government claimed were intended to obstruct the draft, in violation of the Espionage Act. In the first such case (*Schenck v. United States, 1919) Holmes, writing for a unanimous Court, said that Congress had the power to forbid speeches and publications that threatened to interfere with the draft. Freedom of speech was not absolute: someone could legitimately be punished for falsely crying fire in a theater and causing a panic. As Congress could make it a crime to obstruct the draft, so it might also punish speech that posed a *clear and present danger of having this forbidden result. Holmes then applied this standard to affirm a series of convictions for obstructing the draft, including the conviction of Eugene Debs, the Socialist candidate for President, for a speech critical of the war and of the draft.

Holmes’s opinion in Schenck was generally approved at the time, but the Court never cited the clear and present danger standard except to uphold convictions, and it gradually came to be identified with the prosecutor’s view. Modern commentators have criticized the Schenck opinion for giving too little protection to speech.

Holmes himself, however, strenuously objected to this one-sided use of his opinion, and in a second group of cases decided in 1919 he dissented. It appeared to Holmes that, in this second group of cases, the federal government had broadened its campaign of prosecutions to include political dissidents as well as draft resisters and that these new defendants were being convicted for their socialist and anarchist ideas, not for any acts (p. 472) intended or likely to harm the war effort. In *Abrams v. United States (1919), the first of these cases to be decided, Holmes restated the clear and present danger test in terms drawn from his 1894 article “Privilege, Malice, and Intent.” The defendants in Abrams had thrown leaflets from a garment factory window; neither by the external standard of foreseeability nor by the test of actual intent, Holmes said, did the defendants’ acts pose a clear and present danger to the war effort.

Holmes went on to give his statement of the policy that he believed underlay the privilege afforded by the Constitution to honest expressions of opinion that posed no clear and present danger: “The best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which our wishes safely can be carried out [in law]” (p. 630). Political dissent was to be freely allowed; it was precisely those ideas that challenged and tested the principles of American society in the free competition of discourse that were to be most jealously protected.


Holmes’s constitutional opinions fit into a coherent view of the American system evolved from his own experiences and his studies of the common law. Holmes believed that the law of the English-speaking peoples was an experiment in peaceful evolution in which a fair hearing in court substituted for the violent combat of more primitive societies. In the American federal system, a refinement of this experiment, the states provided “insulated chambers” for experiments in law and political economy; these experiments were to be tolerated so long as they were conducted in accordance with the rules for making fair decisions. Experiments, even in socialism, were not foreclosed by any principle fundamental to the law. Nor did Holmes believe that any religious or ethical precepts were fundamental.

To Holmes, life was a continual clash of groups—nations, races, classes—representing great conflicting principles, struggling for survival in a world of limited resources. The Constitution required only that the domestic struggle be fair and peaceful. The task of the judge was to choose fairly between contending forces. Political truth was to be worked out in the competition of the marketplace and not imposed by armies or police.

The inconsistency in Holmes’s idea of the judge’s role became more marked as he grew older. His Darwinist, quasi-scientific system called for judges to serve, in the end, the survival of their own class or nation. Yet in the chivalrous system of law Holmes described, the judge must set aside his personal loyalties and views, deciding cases fairly even when that would mean death to the existing order.

Holmes’s self-denying sense of duty, his loyalty to the future of humanity rather than its present order, apparently was founded on faith in something outside the evolutionary system of law. It could not be reconciled with Holmes’s system and indeed seemed to contradict it. As he grew older, Holmes’s sense of duty came to predominate, so that his opinions seemed to be the impersonal voice of duty itself.

His health failed in the summer of 1931, and on 12 January 1932 he submitted his resignation to President Herbert Hoover. He died of pneumonia at his Washington, D.C., home in the early hours of 6 March 1935.

Alexander M. Bickel and Benno C. Schmidt, Jr., The Judiciary and Responsible Government, 1910–1921 (1984). George A. Bruce, The Twentieth Regiment of Massachusetts Volunteer Infantry, 1861–1865 (1906). Oliver Wendell Holmes, Jr., “Privilege, Malice, and Intent,” Harvard Law Review 8 (1894): 1–14. Mark DeWolfe Howe, ed., Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861–1864 (1946). Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 (1957). Mark DeWolfe Howe, comp., The Occasional Speeches of Justice Oliver Wendell Holmes (1962). Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870–1882 (1963). Max Lerner, The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters and Judicial Opinions (1943). Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes (1989).

Sheldon M. Novick