Oliver Wendell Holmes Biography

Oliver Wendell Holmes	Born: 1841-03-08 Birthplace: Boston, MA Died: 1935-03-06 Location of Death: Washington, DC Remains: U.S. Supreme Court Justice 1902-32 Race: White Field: Judge Famous for: U.S. Supreme Court Justice 1902-32
Field: Judge

Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist noted for his concise, pithy rejection of the prevailing property-rights ideology embraced by other judges of his time, and for his deference to the decisions of democratically-elected legislatures. He was called The Great Dissenter and The Yankee from Olympus.

Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr.. As a young man, Holmes loved literature and supported the Abolitionist movement which thrived in Boston society during the 1850s. He graduated from Harvard University in 1861.

After graduation, Holmes joined the United States Army at the outset of the American Civil War. He saw much action, from the Peninsula Campaign to the Wilderness, and suffered wounds at the Battle of Ball's Bluff, Antietam, and Fredericksburg. He was mustered out in 1864 as a brevet Lieutenant Colonel. Many historians have traced Holmes' advocacy of legal realism as well as his hard-edged rejection of romanticism and natural rights theory to his war experiences. Holmes' letters to his parents during the war reflect a hard-bitten callousness to the loss of human life, a necessary defense mechanism for a man who had seen so many friends killed in so many bloody battles. Holmes recalled later that he was not a natural soldier but preferred intellectual pursuits.

One Civil War story involving Holmes is well known, but probably apocryphal: In July 1864, the Confederate general Jubal Early conducted a raid north of Washington, D.C. (the Battle of Fort Stevens), and President Abraham Lincoln came out to watch the troops skirmishing. At six foot four, with his stovepipe hat adding eight inches to his height, Lincoln stood on the parapet, watching smoke puffs from Confederate snipers, seemingly unafraid, even when an officer three feet from him was dropped by a Confederate bullet. A 23-year old Oliver Wendell Holmes saw this foolhardy target sticking up, and not realizing it was the President of the United States, shouted, "Get down, you damn fool, before you get shot!" Lincoln promptly obeyed.

Holmes later remarked in a speech to veterans, "We have shared the incommunicable experience of war. We felt - we still feel - the passion of life to its top.... In our youths, our hearts were touched with fire." This quotation was prominently featured in the 1990 Ken Burns documentary, The Civil War.

After the war's conclusion, Holmes returned to Harvard to study law, being admitted to the bar in 1866, and went into practice in Boston.

In 1870, Holmes became editor of the American Law Review. In 1881, he published the first edition of his well-regarded book The Common Law. Holmes was considered for a judgeship on a federal court in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George Frisbie Hoar convinced the president to nominate someone else. In 1882, he became both a professor at Harvard Law School and a justice of the Supreme Judicial Court of Massachusetts. He replaced Justice Horace Gray, whom he coincidentially would replace once again when Gray retired from the U.S. Supreme Court in 1902. In 1899, he was appointed Chief Justice of the court. He became known for his innovative, well-reasoned decisions, balancing property rights with rule by the majority, with the latter taking precedence over the former. He was one of the first to recognize workers' right to organize trade unions as long as no violence or coercion was involved, contrary to some earlier decisions by others who had argued that organized labor was by nature illegal.

On August 11, 1902, President Theodore Roosevelt named Holmes to the United States Supreme Court through a recess appointment. He was subsequently confirmed by the Senate on December 4, 1902. On the bench, Holmes was known for his pithy, short, and frequently-quoted opinions.

Holmes has been criticized both during his lifetime and after for his philosophical views, which were influenced by Darwinism and pragmatism. Holmes rejected moral theory and "natural rights" philosophy and embraced moral relativism. Thus, he mostly rejected the doctrine of "substantive due process" and the idea that the Constitution imposes certain substantive values on the political process, though he famously made an exception for government action that made him "puke" (vomit). This "puke test" became the basis for the "shocks the conscience" test that Holmes's protege Felix Frankfurter promoted and is currently governing law in certain substantive due process cases. Holmes's judicial philosophy played a major role in shaping American Legal Realism, which emphasized the real-world impact of decisions and de-emphasized legal formalism and theory.

Holmes has also been attacked for his allegedly elitist personal attitudes toward race and poverty; typical of this view was his close friend and ally Louis Brandeis's comment that Holmes "knew nothing about the evils that created suffering for much of the population." Ironically, Holmes himself often criticized the unconscious biases he felt his colleagues on the Court maintained towards questions of economic policy.

Holmes gained significant admiration from liberals of his time, such as Frankfurter and Brandeis, as a strong critic of the Supreme Court's "liberty of contract" doctrine, which was frequently invoked to strike down progressive economic legislation, most famously in the 1905 case of Lochner v. New York. Holmes's dissent in that case, in which he wrote that "a Constitution is not intended to embody a particular economic theory," is one of the most-quoted in Supreme Court history. Holmes's personal views on economics were influenced by Malthusian theories that emphasized struggle for a fixed amount of resources.

Holmes's decision in Buck v. Bell, 274 U.S. 200 (1927), where he found nothing objectionable to state-ordered compulsory sterilization of the retarded with the words, "Three generations of imbeciles are enough," is a notable instance of Holmes's Darwinism coming to the fore in his opinions.

However, Holmes' moral relativism influenced his eventual strong advocacy of First Amendment speech rights on the bench, especially Mill's theory of the marketplace of ideas. Holmes famously and inappropriately declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic" and formulated the "clear and present danger" test to evaluate government speech restrictions in 1919's Schenk v. United States, the first notable First Amendment "freedom of speech" opinion in the Court's history that supported the arrest of an anti-draft dissenter -- Schenk. Holmes' analogy was deeply flawed in this case as Schenk was correctly warning the public about the dangers of war (of dying in it) by speaking out against the draft. By supporting the government's stifling of dissent by invoking an egregiously incorrect analogy, Holmes provided the intellectual cover required to justify whittling the First Amendment. The next year, in Abrams v. United States, Holmes delivered a strongly worded dissent in which he criticized the majority's use of the clear and present danger test, arguing that action with the intent to bring about a substantive and immediate evil does not deserve severe punishment. Given these seemingly different interpretations, some have accused Holmes of philosophical inconsistency.

Holmes also ruled (in Federal Baseball Club v. National League, 259 U.S. 200 (1922)) that professional baseball could not be subject to antitrust law because it was not interstate commerce in any way that could have been envisioned by the Constitution's framers. Holmes's opinion has become the basis for baseball's ongoing (as of 2006) "antitrust exemption."

Holmes served until January 12, 1932, when his brethren on the court, citing his advanced age (Holmes was, at 90, the oldest serving justice in the Court's history), hesitantly suggested that he step down, and he complied. He died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday, leaving his entire estate to the United States government (he had earlier said, "Taxes are the price we pay for civilization"). He was buried in Arlington National Cemetery, and is commonly recognized as one of the greatest justices of the U.S. Supreme Court.

The 1951 Hollywood motion picture The Magnificent Yankee was based on a play about his life.

A well-known anecdote has Holmes, riding in a carriage with a law clerk while in his nineties, passing a beautiful young woman on the street. Holmes is said to have sighed, "Oh, to be seventy again!"