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Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an

associate justice An associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some ...

of the

U.S. Supreme Court The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that turn on question ...

from 1902 to 1932.Holmes was Acting

Chief Justice of the United States The chief justice of the United States is the chief judge of the Supreme Court of the United States and is the highest-ranking officer of the U.S. federal judiciary. Appointments Clause, Article II, Section 2, Clause 2 of the U.S. Constitution g ...

in February 1930. 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 Civil liberties are guarantees and freedoms that governments commit not to abridge, either by constitution, legislation, or judicial interpretation, without due process. Though the scope of the term differs between countries, civil liberties of ...

and American constitutional democracyand deference to the decisions of elected

legislatures A legislature (, ) is a deliberative assembly with the legal authority to make laws for a political entity such as a country, nation or city on behalf of the people therein. They are often contrasted with the executive and judicial powers ...

. Holmes retired from the Court at the age of 90, an unbeaten record for oldest justice on the Supreme Court.John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...

was only eight months younger when he retired on April 12, 2010. He previously served the Union as a brevet

colonel Colonel ( ; abbreviated as Col., Col, or COL) is a senior military Officer (armed forces), officer rank used in many countries. It is also used in some police forces and paramilitary organizations. In the 17th, 18th, and 19th centuries, a colon ...

in the

American Civil War The American Civil War (April 12, 1861May 26, 1865; also known by Names of the American Civil War, other names) was a civil war in the United States between the Union (American Civil War), Union ("the North") and the Confederate States of A ...

(in which he was wounded three times), as an associate justice and chief justice of the

Massachusetts Supreme Judicial Court The Massachusetts Supreme Judicial Court (SJC) is the highest court in the Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the distinction of being the oldest continuously fu ...

, and as Weld Professor of Law at his alma mater,

Harvard Law School Harvard Law School (HLS) is the law school of Harvard University, a Private university, private research university in Cambridge, Massachusetts. Founded in 1817, Harvard Law School is the oldest law school in continuous operation in the United ...

. 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 Theodore Roosevelt Jr. (October 27, 1858 – January 6, 1919), also known as Teddy or T.R., was the 26th president of the United States, serving from 1901 to 1909. Roosevelt previously was involved in New York (state), New York politics, incl ...

in 1902, he supported the constitutionality of state

economic regulation Regulatory economics is the application of law by government or regulatory agencies for various economics-related purposes, including remedying market failure, protecting the environment and economic management. Regulation Regulation is gener ...

and came to advocate broad

freedom of speech Freedom of speech is a principle that supports the freedom of an individual or a community to articulate their opinions and ideas without fear of retaliation, censorship, or legal sanction. The rights, right to freedom of expression has been r ...

under the

First Amendment First most commonly refers to: * First, the ordinal form of the number 1 First or 1st may also refer to: Acronyms * Faint Images of the Radio Sky at Twenty-Centimeters, an astronomical survey carried out by the Very Large Array * Far Infrared a ...

, after, in ''

Schenck v. United States ''Schenck v. United States'', 249 U.S. 47 (1919), was a landmark decision of the U.S. Supreme Court concerning enforcement of the Espionage Act of 1917 during World War I. A unanimous Supreme Court, in an opinion by Justice Oliver Wendell Hol ...

'' (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 ''Clear and Present Danger'' is a political thriller novel, written by Tom Clancy and published on August 17, 1989. A sequel to '' The Cardinal of the Kremlin'' (1988), main character Jack Ryan becomes acting Deputy Director of Intelligence i ...

" test. 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 A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organization or other type of entity, and commonly determines how that entity is to be governed. When these pri ...

. 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...." '' The Journal of Legal Studies'' has identified Holmes as the third-most-cited American legal scholar of the 20th century. Holmes was a legal realist, as summed up in his maxim, "The life of the law has not been logic: it has been experience," a moral skeptic, and an opponent of the doctrine of

natural law Natural law (, ) is a Philosophy, philosophical and legal theory that posits the existence of a set of inherent laws derived from nature and universal moral principles, which are discoverable through reason. In ethics, natural law theory asserts ...

. His jurisprudence and academic writing influenced much subsequent American legal thinking, including the judicial consensus upholding

New Deal The New Deal was a series of wide-reaching economic, social, and political reforms enacted by President Franklin D. Roosevelt in the United States between 1933 and 1938, in response to the Great Depression in the United States, Great Depressi ...

regulatory law and the influential American schools of

pragmatism Pragmatism is a philosophical tradition that views language and thought as tools for prediction, problem solving, and action, rather than describing, representing, or mirroring reality. Pragmatists contend that most philosophical topics� ...

critical legal studies Critical legal (CLS) is a school of critical theory that developed in the United States during the 1970s.Alan Hunt, "The Theory of Critical Legal Studies," Oxford Journal of Legal Studies, Vol. 6, No. 1 (1986): 1-45, esp. 1, 5. Se DOI, 10.1093/ojl ...

, and

law and economics Law and economics, or economic analysis of law, is the application of microeconomic theory to the analysis of law. The field emerged in the United States during the early 1960s, primarily from the work of scholars from the Chicago school of econ ...

Early life

Holmes was born in

Boston Boston is the capital and most populous city in the Commonwealth (U.S. state), Commonwealth of Massachusetts in the United States. The city serves as the cultural and Financial centre, financial center of New England, a region of the Northeas ...

Massachusetts Massachusetts ( ; ), officially the Commonwealth of Massachusetts, is a U.S. state, state in the New England region of the Northeastern United States. It borders the Atlantic Ocean and the Gulf of Maine to its east, Connecticut and Rhode ...

, 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 North America is a continent in the Northern Hemisphere, Northern and Western Hemisphere, Western hemispheres. North America is bordered to the north by the Arctic Ocean, to the east by the Atlantic Ocean, to the southeast by South Ameri ...

from

England England is a Countries of the United Kingdom, country that is part of the United Kingdom. It is located on the island of Great Britain, of which it covers about 62%, and List of islands of England, more than 100 smaller adjacent islands. It ...

during the early colonial period as part of the Puritan migration to New England. His mother opposed slavery and fulfilled her domestic role as traditionally understood. 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 Ralph Waldo Emerson (May 25, 1803April 27, 1882), who went by his middle name Waldo, was an American essayist, lecturer, philosopher, minister, abolitionism, abolitionist, and poet who led the Transcendentalism, Transcendentalist movement of th ...

, and other transcendentalists were family friends. Known as "Wendell" in his youth, Holmes became lifelong friends with the brothers

William James William James (January 11, 1842 – August 26, 1910) was an American philosopher and psychologist. The first educator to offer a psychology course in the United States, he is considered to be one of the leading thinkers of the late 19th c ...

and

Henry James Henry James ( – ) was an American-British author. He is regarded as a key transitional figure between literary realism and literary modernism, and is considered by many to be among the greatest novelists in the English language. He was the ...

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 Harvard College is the undergraduate education, undergraduate college of Harvard University, a Private university, private Ivy League research university in Cambridge, Massachusetts, United States. Part of the Harvard Faculty of Arts and Scienc ...

he wrote essays on philosophic themes and asked Emerson to read his attack on

Plato Plato ( ; Greek language, Greek: , ; born BC, died 348/347 BC) was an ancient Greek philosopher of the Classical Greece, Classical period who is considered a foundational thinker in Western philosophy and an innovator of the writte ...

'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 Abolitionism, or the abolitionist movement, is the political movement to end slavery and liberate enslaved individuals around the world. The first country to fully outlaw slavery was Kingdom of France, France in 1315, but it was later used ...

and once served as a bodyguard for Wendell Phillips, the radical abolitionist leader. He was also a member of Alpha Delta Phi fraternity, the Hasty Pudding and the

Porcellian Club The Porcellian Club is an all-male Officially unrecognized Harvard College social clubs, final club at Harvard University, colloquially known as the Porc or the P.C. Its founding is traditionally dated to either 1791, when a group began meetin ...

; his father had also been a member of both clubs. In the Pudding, he served as Secretary and Poet, as had his father. Holmes graduated

Phi Beta Kappa The Phi Beta Kappa Society () is the oldest academic honor society in the United States. It was founded in 1776 at the College of William & Mary in Virginia. Phi Beta Kappa aims to promote and advocate excellence in the liberal arts and sciences, ...

and

cum laude Latin honors are a system of Latin phrases used in some colleges and universities to indicate the level of distinction with which an academic degree has been earned. The system is primarily used in the United States. It is also used in some Sout ...

from Harvard in 1861, and, in the spring of that year, after President

Abraham Lincoln Abraham Lincoln (February 12, 1809 – April 15, 1865) was the 16th president of the United States, serving from 1861 until Assassination of Abraham Lincoln, his assassination in 1865. He led the United States through the American Civil War ...

called for volunteers following the firing on

Fort Sumter Fort Sumter is a historical Coastal defense and fortification#Sea forts, sea fort located near Charleston, South Carolina. Constructed on an artificial island at the entrance of Charleston Harbor in 1829, the fort was built in response to the W ...

, he enlisted in the Massachusetts militia but returned briefly to Harvard College to participate in commencement exercises.

Civil War

Oliver Wendell Holmes Jr daguerreotype 1861 crop

During his senior year of college, at the outset of the

, Holmes enlisted in the Fourth Battalion of Infantry in the Massachusetts militia, then in July 1861, with his father's help, received a commission as second lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry.

Commonwealth of Massachusetts Massachusetts ( ; ), officially the Commonwealth of Massachusetts, is a U.S. state, state in the New England region of the Northeastern United States. It borders the Atlantic Ocean and the Gulf of Maine to its east, Connecticut and Rhode ...

, He saw considerable combat during his service, taking part in the

Peninsula Campaign The Peninsula campaign (also known as the Peninsular campaign) of the American Civil War was a major Union operation launched in southeastern Virginia from March to July 1862, the first large-scale offensive in the Eastern Theater. The oper ...

, and the

Wilderness Wilderness or wildlands (usually in the plurale tantum, plural) are Earth, Earth's natural environments that have not been significantly modified by human impact on the environment, human activity, or any urbanization, nonurbanized land not u ...

, suffering wounds at the

Battle of Ball's Bluff The Battle of Ball's Bluff (also known as the Battle of Leesburg or Battle of Harrison's Island) was an early battle of the American Civil War fought in Loudoun County, Virginia, on October 21, 1861, in which Union Army forces under Major Gener ...

, Antietam, and Chancellorsville, and suffered from a near-fatal case of dysentery. He particularly admired and was close to

Henry Livermore Abbott Henry Livermore Abbott (January 21, 1842 – May 6, 1864) was a Major (United States), Major in the Union Army during the American Civil War (Civil War).Eicher, John H. and Eicher, David J., ''Civil War High Commands'', p. 97. Stanford University ...

, 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. 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

, 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

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. 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 Wright is an occupational surname originating in England and Scotland. The term 'Wright' comes from the circa 700 AD Old English word 'wryhta' or 'wyrhta', meaning worker or shaper of wood. Later it became any occupational worker (for example, a ...

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.

Legal career

Lawyer

In the summer of 1864, Holmes returned to the family home in Boston, wrote poetry, and debated philosophy with his friend

, 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

, "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 A Bachelor of Laws (; LLB) is an undergraduate law degree offered in most common law countries as the primary law degree and serves as the first professional qualification for legal practitioners. This degree requires the study of core legal subje ...

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 ndstand-offish.... As she grew older, her inclination to solitude became more pronounced, and in time she became a virtual recluse...". 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. 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 Maritime law or admiralty law is a body of law that governs nautical issues and private maritime disputes. Admiralty law consists of both domestic law on maritime activities, and conflict of laws, private international law governing the relations ...

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, as well the views of the

German idealist German idealism is a philosophical movement that emerged in Germany in the late 18th and early 19th centuries. It developed out of the work of Immanuel Kant in the 1780s and 1790s, and was closely linked both with Romanticism and the revolutionary ...

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:

The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the
syllogism A syllogism (, ''syllogismos'', 'conclusion, inference') is a kind of logical argument that applies deductive reasoning to arrive at a conclusion based on two propositions that are asserted or assumed to be true. In its earliest form (defin ...
in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics.

In ''The Common Law'', Holmes wrote that, even though the law "uses the language of morality, it necessarily ends in external standards not dependent on the consciousness of the individual" or on his moral culpability. Foreseeability of harm was the key: "the general basis of criminal liability was knowledge, at the time of action, of facts from which common experience showed that certain harmful results were likely to follow." Tort liability, similarly, was imposed when circumstances were "such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm". Likewise, with respect to contracts, "The law has nothing to do with the actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct." In the book, Holmes set forth his view that the only source of law, properly speaking, was a judicial decision enforced by the state. Judges decided cases on the facts and then wrote opinions presenting a rationale for their decision. The true basis of the decision was often an "inarticulate major premise", however. A judge was obliged to choose between contending legal arguments, each posed in absolute terms, and the true basis of his decision was sometimes drawn from outside the law, when precedents were lacking or were evenly divided. The common law evolves because civilized society evolves, and judges share the common preconceptions of the governing class. These views endeared Holmes to the later advocates of legal realism and made him one of the early founders of

jurisprudence. Holmes famously contrasted his own scholarship with the abstract doctrines of Christopher Columbus Langdell, dean of Harvard Law School, who viewed the common law as a self-enclosed set of doctrines. Holmes viewed Langdell's work as akin to the German philosophic idealism he had for so long resisted, opposing it with his own scientific materialism. Albert Alschuler, however, wrote, "Langdell was innocent of the charge ... of attempting to deduce law from ''a priori'' premises".

State court judge

Holmes was considered for a federal court judgeship in 1878 by President

Rutherford B. Hayes Rutherford Birchard Hayes (; October 4, 1822 – January 17, 1893) was the 19th president of the United States, serving from 1877 to 1881. Hayes served as Cincinnati's city solicitor from 1858 to 1861. He was a staunch Abolitionism in the Un ...

, but Massachusetts Senator

George Frisbie Hoar George Frisbie Hoar (August 29, 1826 – September 30, 1904) was an American attorney and politician, represented Massachusetts in the United States Senate from 1877 until his death in 1904. He belonged to an extended family that became politic ...

persuaded Hayes to nominate another candidate. In the fall of 1882, Holmes became a professor at

, accepting an endowed professorship that had been created for him, largely through the efforts of Louis D. Brandeis. On Friday, December 8, 1882,

Supreme Judicial Court of Massachusetts The Massachusetts Supreme Judicial Court (SJC) is the highest court in the Commonwealth of Massachusetts. Although the claim is disputed by the Supreme Court of Pennsylvania, the SJC claims the distinction of being the oldest continuously fun ...

associate justice Otis Lord decided to resign, giving outgoing Republican governor John Davis Long a chance to appoint his successor, if he could do so before the

Massachusetts Governor's Council The Massachusetts Governor's Council (also known as the Executive Council) is a governmental body that provides advice and consent in certain matterssuch as judicial nominations, pardons, and commutationsto the Governor of Massachusetts. Council ...

adjourned at 3 pm. Holmes's partner George Shattuck proposed him for the vacancy, Holmes quickly agreed, and the council not objecting, he took the oath of office on December 15, 1882. His resignation from his professorship, after only a few weeks and without

notice Notice is the legal concept describing a requirement that a party be aware of legal process affecting their rights, obligations or duties. There are several types of notice: public notice (or legal notice), actual notice, constructive notice. ...

, was resented by the law school faculty, with James Bradley Thayer finding Holmes's conduct "selfish" and "thoughtless". On August 2, 1899, Holmes became chief justice of the

following the death of Walbridge A. Field. During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize

trade unions A trade union (British English) or labor union (American English), often simply referred to as a union, is an organization of workers whose purpose is to maintain or improve the conditions of their employment, such as attaining better wages ...

and to strike, as long as no violence was involved, and coercion was not exerted through impermissible means such as secondary boycotts, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers. He continued to give speeches and to write articles that added to or extended his work on the common law, most notably "Privilege, Malice and Intent", in which he presented his view of the pragmatic basis of the common-law privileges extended to speech and the press, which could be defeated by a showing of malice, or of specific intent to harm. Famously, he observed in ''McAuliffe v. Mayor of New Bedford'' (1892) that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman". He also published an address, " The Path of the Law", at

Project Gutenberg Project Gutenberg (PG) is a volunteer effort to digitize and archive cultural works, as well as to "encourage the creation and distribution of eBooks." It was founded in 1971 by American writer Michael S. Hart and is the oldest digital li ...

which is best known for its prediction theory of law, that " e prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law", and for its "bad man" perspective on the law, that " you really want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict".

Supreme Court Justice

Overview

Soon after the death of

Associate Justice An associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some ...

Horace Gray Horace Gray (March 24, 1828 – September 15, 1902) was an American jurist who served on the Massachusetts Supreme Judicial Court, and then on the United States Supreme Court, where he frequently interpreted the Constitution in ways that increa ...

in July 1902, President

made known his intention to appoint Holmes as Gray's successor; it was the president's stated desire to fill the vacancy with someone from Massachusetts. The nomination was supported by Senator

Henry Cabot Lodge Henry Cabot Lodge (May 12, 1850November 9, 1924) was an American politician, historian, lawyer, and statesman from Massachusetts. A member of the History of the Republican Party (United States), Republican Party, he served in the United States ...

, the junior senator from Massachusetts, but was opposed by its senior senator,

, who was also chairman of the

Senate Judiciary Committee The United States Senate Committee on the Judiciary, informally known as the Senate Judiciary Committee, is a Standing committee (United States Congress), standing committee of 22 U.S. senators whose role is to oversee the United States Departm ...

. Hoar was a strenuous opponent of imperialism, and the legality of the annexation of Puerto Rico and the Philippines was expected to come before the Court. Lodge, like Roosevelt, was a strong supporter of imperialism, which Holmes was expected to support as well. Despite Hoar's opposition, the president moved ahead on the matter. On December 2, 1902, he formally submitted the

nomination Nomination is part of the process of selecting a candidate for either election to a public office, or the bestowing of an honor or award. A collection of nominees narrowed from the full list of candidates is a short list. Political office In ...

and Holmes was confirmed by the

United States Senate The United States Senate is a chamber of the Bicameralism, bicameral United States Congress; it is the upper house, with the United States House of Representatives, U.S. House of Representatives being the lower house. Together, the Senate and ...

on December 4. He was sworn into office on December 8. On the bench, Holmes did vote to support the administration's position favoring the annexation of former Spanish colonies in the "

Insular Cases The Insular Cases are a series of opinions by the Supreme Court of the United States in 1901 about the status of U.S. territories acquired in the Spanish–American War. Some scholars also include cases regarding territorial status decided up unt ...

". However, he later disappointed Roosevelt by dissenting in '' Northern Securities Co. v. United States'', a major

antitrust Competition law is the field of law that promotes or seeks to maintain market competition by regulating anti-competitive conduct by companies. Competition law is implemented through public and private enforcement. It is also known as antitrust l ...

prosecution;''Northern Securities Co. v. U.S.'', 193 U.S. 197 (1904)
. the majority of the court opposed Holmes and sided with Roosevelt's belief that Northern Securities violated the Sherman Antitrust Act. The dissent by Holmes permanently damaged his formerly close relationship with Roosevelt. Holmes was known for his pithy, frequently quoted opinions. In more than twenty-nine years on the Supreme Court bench, he ruled on cases spanning the whole range of federal law. He is remembered for prescient opinions on topics as varied as copyright law, the law of contempt, the antitrust status of professional baseball, and the oath required for

citizenship Citizenship is a membership and allegiance to a sovereign state. Though citizenship is often conflated with nationality in today's English-speaking world, international law does not usually use the term ''citizenship'' to refer to nationalit ...

. Holmes, like most of his contemporaries, viewed the

Bill of Rights A bill of rights, sometimes called a declaration of rights or a charter of rights, is a list of the most important rights to the citizens of a country. The purpose is to protect those rights against infringement from public officials and pri ...

as codifying privileges obtained over the centuries in English and American common law, and he established that view in numerous opinions for the Court. He is considered one of the greatest judges in American history and embodies for many the traditions of the common law. A eugenicist, he wrote the majority opinion in Buck v. Bell, upholding forced sterilization. Tens of thousands of the procedures followed. From the departure of

William Howard Taft William Howard Taft (September 15, 1857March 8, 1930) served as the 27th president of the United States from 1909 to 1913 and the tenth chief justice of the United States from 1921 to 1930. He is the only person to have held both offices. ...

on February 3, 1930, until

Charles Evans Hughes Charles Evans Hughes (April 11, 1862 – August 27, 1948) was an American politician, academic, and jurist who served as the 11th chief justice of the United States from 1930 to 1941. A member of the Republican Party (United States), Republican ...

became chief justice on February 24, 1930, Holmes briefly acted as the chief justice and presided over court sessions.

Noteworthy Supreme Court opinions

''Otis v. Parker''

Beginning with his first opinion for the Court in ''Otis v. Parker'' (1903), Holmes exhibited his tendency to defer to legislatures, which two years later he did most famously in his dissenting opinion in ''Lochner v. New York'' (1905). In ''Otis v. Parker'', the Court, in an opinion by Holmes, upheld the constitutionality of a California statute that provided that "all contracts for the sales of shares of the capital stock of any corporation or association on margin, or to be delivered at a future day, shall be void...." Holmes he wrote that, as a general proposition, "neither a state legislature nor a state constitution can interfere arbitrarily with private business or transactions.... But general propositions do not carry us far. While the courts must exercise a judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view.... If the state thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable, the courts cannot interfere, unless... they can see that it 'is a clear, unmistakable infringement of rights secured by the fundamental law.'"

''Lochner v. New York''

In his dissenting opinion in ''

Lochner v. New York ''Lochner v. New York'', 198 U.S. 45 (1905), was a List of landmark court decisions in the United States, landmark decision of the Supreme Court of the United States, U.S. Supreme Court holding that a New York (state), New York State statute th ...

'' (1905), Holmes supported labor, not out of sympathy for workers, but because of his tendency to defer to legislatures. In ''Lochner'', the Court struck down a New York statute that prohibited employees (spelled "employes" at the time) from being required or permitted to work in a bakery more than sixty hours a week. The majority found that the statute "interferes with the right of contract between the employer and employes", and that the right of contract, though not explicit in the Constitution, "is part of the liberty of the individual protected by the Fourteenth Amendment", under which no state may "deprive any person of life, liberty, or property, without due process of law." In his brief dissent, Holmes said that the majority had reached its decision on the basis of the economic theory of ''

laissez faire ''Laissez-faire'' ( , from , ) is a type of economic system in which transactions between private groups of people are free from any form of economic interventionism (such as subsidies or regulations). As a system of thought, ''laissez-faire'' ...

'', but that the Constitution does not prevent the states from interfering with the liberty to contract. "The Fourteenth Amendment", Holmes wrote, "does not enact Mr.

Herbert Spencer Herbert Spencer (27 April 1820 – 8 December 1903) was an English polymath active as a philosopher, psychologist, biologist, sociologist, and anthropologist. Spencer originated the expression "survival of the fittest", which he coined in '' ...

's Social Statics", which advocates ''laissez faire''.

''Schenck v. United States''

In a series of opinions surrounding the World War I

Espionage Act of 1917 The Espionage Act of 1917 is a United States federal law enacted on June 15, 1917, shortly after the United States entered World War I. It has been amended numerous times over the years. It was originally found in Title 50 of the U.S. Code ( ...

and the Sedition Act of 1918, Holmes held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege for speech and the press, even when those expressions caused injury, but that the privilege could be defeated by a showing of malice or intent to do harm. Holmes came to write three unanimous opinions for the Supreme Court that arose from prosecutions under the 1917 Espionage Act because in an earlier case, ''Baltzer v. United States'', he had circulated a powerfully expressed dissent, when the majority had voted to uphold a conviction of immigrant socialists who had circulated a petition criticizing the draft. Apparently learning that he was likely to publish this dissent, the government (perhaps alerted by Justice Louis D. Brandeis, newly appointed by President

Woodrow Wilson Thomas Woodrow Wilson (December 28, 1856February 3, 1924) was the 28th president of the United States, serving from 1913 to 1921. He was the only History of the Democratic Party (United States), Democrat to serve as president during the Prog ...

) abandoned the case, and it was dismissed by the Court. The chief justice then asked Holmes to write opinions that could be unanimous, upholding convictions in three similar cases, where there were jury findings that speeches or leaflets were published with an intent to obstruct the draft, a crime under the 1917 law. Although there was no evidence that the attempts had succeeded, Holmes, in ''

'' (1919), held for a unanimous Court that an attempt, purely by language, could be prosecuted if the expression, in the circumstances in which it was uttered, posed a "clear and present danger" that the legislature had properly forbidden. In his opinion for the Court, Holmes famously declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic".

''Abrams v. United States''

Later in 1919, however, in '' Abrams v. United States'', Holmes dissented, in support of freedom of speech. The Wilson Administration was vigorously prosecuting those suspected of sympathies with the recent

Russian Revolution The Russian Revolution was a period of Political revolution (Trotskyism), political and social revolution, social change in Russian Empire, Russia, starting in 1917. This period saw Russia Dissolution of the Russian Empire, abolish its mona ...

, as well as opponents of the war against Germany. The defendants in this case were socialists and anarchists, recent immigrants from Russia who opposed the apparent efforts of the United States to intervene in the

Russian Civil War The Russian Civil War () was a multi-party civil war in the former Russian Empire sparked by the 1917 overthrowing of the Russian Provisional Government in the October Revolution, as many factions vied to determine Russia's political future. I ...

. They were charged with violating the Sedition Act of 1918, which was an amendment to the Espionage Act of 1917 that made criticisms of the government or the war effort a crime. Abrams and his co-defendants were charged with distributing leaflets (one in English and one in Yiddish) that called for a "general strike" to protest the U.S. intervention in Russia. A majority of the Court voted to uphold the convictions and sentences of ten and twenty years, to be followed by deportation, while Holmes dissented. The majority claimed to be following the precedents already set in

Schenck Ashkenazi Jews, Jewish (Ashkenazic) and Germans, German occupational surname derived from ''schenken'' (to pour out or serve) referring to the medieval profession of cup-bearer or wine server (later also to tavern keeper). At one time only Jews were ...

and the other cases in which Holmes had written for the Court, but Holmes insisted that the defendants' leaflets neither threatened to cause any harm nor showed a specific intent to hinder the war effort. Holmes condemned the Wilson Administration's prosecution and its insistence on draconian sentences for the defendants in passionate language: "Even if I am technically wrong egarding the defendants' intentand enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper... the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer, not for what the indictment alleges, but for the creed that they avow...." Holmes then went on to explain the importance of freedom of thought in a democracy:

en men have realized that time has upset many fighting faiths, they may come to believe... that 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 their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment.

In writing this dissent, Holmes may have been influenced by Zechariah Chafee's article "Freedom of Speech in War Time". Chafee had criticized Holmes's opinion in ''Schenck'' for failing to express in more detail and more clearly the common-law doctrines upon which he relied. In his ''Abrams'' dissent, Holmes did elaborate somewhat on the decision in ''Schenck'', roughly along the lines that Chafee had suggested. Although Holmes evidently believed that he was adhering to his own precedent, some later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. In ''Abrams'', the majority opinion relied on the clear-and-present-danger formulation of ''Schenck'', claiming that the leaflets showed the necessary intent, and ignoring that they were unlikely to have any effect. By contrast, the Supreme Court's current formulation of the clear and present danger test, stated in 1969 in '' Brandenburg v. Ohio'', holds that "advocacy of the use of force or of law violation" is protected by the First Amendment "unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action".

''Silverthorne Lumber Co. v. United States''

In '' Silverthorne Lumber Co. v. United States'' (1920), Holmes ruled that any evidence obtained, even indirectly, from an illegal search was inadmissible in court. He reasoned that otherwise, police would have an incentive to circumvent the Fourth Amendment to obtain derivatives of the illegally obtained evidence. This later became known as the "

fruit of the poisonous tree Fruit of the poisonous tree is a legal metaphor used to describe evidence that is obtained illegally. The logic of the terminology is that if the source (the "tree") of the evidence or evidence itself is tainted, then anything gained (the "fruit ...

" doctrine.

''Buck v. Bell''

In 1927, Holmes wrote the 8–1 majority opinion in '' Buck v. Bell'', a case that upheld the Virginia Sterilization Act of 1924 and the

forced sterilization Compulsory sterilization, also known as forced or coerced sterilization, refers to any government-mandated program to involuntarily sterilize a specific group of people. Sterilization removes a person's capacity to reproduce, and is usually do ...

of Carrie Buck, who was claimed to be mentally defective. Later scholarship has shown that the suit was collusive, in that "two eugenics enthusiasts... had chosen Buck as a bit player in a test case that they had devised" and "had asked Buck's guardian to challenge he Virginia sterilization law. In addition, Carrie Buck was probably of normal intelligence. The argument made on her behalf was principally that the statute requiring sterilization of institutionalized persons was unconstitutional, violating what today is called "

substantive due process due process is a principle in United States constitutional law that allows courts to establish and protect substantive laws and certain fundamental rights from government interference, even if they are unenumerated elsewhere in the U.S. Consti ...

". Holmes repeated familiar arguments that statutes would not be struck down if they appeared on their face to have a reasonable basis. In support of his argument that the interest of "public welfare" outweighs the interest of individuals in their bodily integrity, he argued: Sterilization rates under

eugenics Eugenics is a set of largely discredited beliefs and practices that aim to improve the genetic quality of a human population. Historically, eugenicists have attempted to alter the frequency of various human phenotypes by inhibiting the fer ...

laws in the United States climbed from 1927 until '' Skinner v. Oklahoma'', 316 U.S. 535 (1942), in which the U.S. Supreme Court declared unconstitutional an Oklahoma statute that provided for the sterilization of "habitual criminals". ''Buck v. Bell'' continues to be cited occasionally in support of due process requirements for state interventions in medical procedures. For instance, in 2001, the

United States Court of Appeals for the Eighth Circuit The United States Court of Appeals for the Eighth Circuit (in case citations, 8th Cir.) is a United States federal court with appellate jurisdiction over the following United States district courts: * Eastern District of Arkansas * Western ...

cited ''Buck v. Bell'' to protect the constitutional rights of a woman coerced into sterilization without procedural due process. The court stated that error and abuse will result if the state does not follow the procedural requirements, established by ''Buck v. Bell'', for performing an involuntary sterilization. ''Buck v. Bell'' was also cited briefly, though not discussed, in ''

Roe v. Wade ''Roe v. Wade'', 410 U.S. 113 (1973),. was a List of landmark court decisions in the United States, landmark decision of the U.S. Supreme Court in which the Court ruled that the Constitution of the United States protected the right to have an ...

'', in support of the proposition that the Court does not recognize an "unlimited right to do with one's body as one pleases". However, although ''Buck v. Bell'' has not been overturned, "the Supreme Court has

distinguish In law, to distinguish a case means a court decides the holding or legal reasoning of a precedent case that will not apply due to materially different facts between the two cases. Two formal constraints constrain the later court: the expresse ...

ed the case out of existence".

Jurisprudential contributions

Critique of formalism

From his earliest writings, Holmes demonstrated a lifelong belief that the decisions of judges were consciously or unconsciously result-oriented and reflected the mores of the class and society from which judges were drawn. In his 1881 book '' The Common Law'', Holmes argued that legal rules are not deduced through

formal logic Logic is the study of correct reasoning. It includes both formal and informal logic. Formal logic is the study of deductively valid inferences or logical truths. It examines how conclusions follow from premises based on the structure o ...

but rather emerge from an active process of human self-government. He expressed this idea most famously in ''The Common Law'' with the statement, "The life of the law has not been logic: it has been experience". His philosophy represented a departure from the prevailing jurisprudence of the time:

legal formalism Legal formalism is both a descriptive theory of how judges decide cases and a Normative, normative theory of how judges should decide Legal case, cases. In its descriptive sense, formalists maintain that judges reach their decisions by applying u ...

, which held that law was an orderly system of rules from which decisions in particular cases could be deduced. Holmes sought to consciously reinvent the

common law Common law (also known as judicial precedent, judge-made law, or case law) is the body of law primarily developed through judicial decisions rather than statutes. Although common law may incorporate certain statutes, it is largely based on prece ...

– to modernize it as a tool for adjusting to the changing nature of modern life, as judges of the past had done more or less unconsciously. He has been classed with the philosophic pragmatists, although

is what he attributed to the law, rather than his personal philosophy.Supporting this connection is his brief membership in the informal Metaphysical Club, which met in the 1870s and included Henry and William James and the philosopher Charles Peirce. Central to his thought was the notion that the law, as it had evolved in modern societies, was concerned with the material results of a defendant's actions. A judge's task was to decide which of two parties before him would bear the cost of an injury. Holmes argued that the evolving common law standard was that liability would fall upon a person whose conduct failed to reflect the prudence of a "reasonable man": This "objective standard" adopted by common-law judges, Holmes thought, reflected a shift in

community standards As a legal term in the United States, community standards arose from a test to determine whether material is or is not Obscenity, obscene as explicated in the 1957 Supreme Court of the United States, Supreme Court decision in the matter of Roth v. U ...

, away from condemnation of a person's act toward an impersonal assessment of its value to the community. In the modern world, the advances made in biology and the social sciences should allow a better conscious determination of the results of individual acts and the proper measure of liability for them. This belief in the pronouncements of science concerning social welfare, although he later doubted its applicability to law in many cases, accounts for his enthusiastic endorsement of eugenics in his writings, and his opinion in the case of '' Buck v. Bell''.

Legal positivism

In 1881, in ''The Common Law'', Holmes brought together into a coherent whole his earlier articles and lectures concerning the history of the

(judicial decisions in England and the United States), which he interpreted from the perspective of a practicing lawyer. What counted as law, to a lawyer, was what judges did in particular cases. Law was what the state would enforce, through violence if necessary; echoes of his experience in the Civil War were often present in his writings. Judges decided where and when the force of the state would be brought to bear, and judges in the modern world tended to consult facts and consequences when deciding what conduct to punish. The decisions of judges, viewed over time, determined the rules of conduct and the legal duties by which all are bound. Judges did not and should not consult any external system of morality, certainly not a system imposed by a deity. Being a

legal Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior, with its precise definition a matter of longstanding debate. It has been variously described as a Socia ...

positivist, Holmes brought himself into constant conflict with scholars who believed that legal duties rested upon

, a moral order of the kind invoked by Christian theologians and other philosophic idealists. He believed instead "that men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of the infinite." "The common law is not a brooding omnipresence in the sky."''Southern Pacific Co. v. Jensen'', (dissent). Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said: " e prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." His belief that law, properly speaking, was a set of generalizations from what judges had done in similar cases, determined his view of the

Constitution of the United States The Constitution of the United States is the Supremacy Clause, supreme law of the United States, United States of America. It superseded the Articles of Confederation, the nation's first constitution, on March 4, 1789. Originally includi ...

. As a justice of the U.S. Supreme Court, Holmes rejected the argument that the text of the Constitution should be applied directly to cases that came before the court, as if it were a statute. He shared with most of his fellow jurists the belief that the Constitution carried forward principles derived from the common law, principles that continued to evolve in American courts. The text of the Constitution itself, as originally understood, was not a set of rules, but only a directive to courts to consider the body of the common law when deciding cases that arose under the Constitution. It followed that constitutional principles adopted from the common law were evolving, as the law itself evolved: "A word n the Constitutionis not a crystal, transparent and unchanged, it is the skin of a living thought".

The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking the words and a dictionary but by considering their origin and the line of their growth.

Holmes also insisted on the separation of "ought" and "is", confusion of which he saw as an obstacle in understanding the realities of the law. "The law is full of phraseology drawn from morals, and talks about ''rights'' and ''duties'', ''malice'', ''intent'', and ''negligence'' – and nothing is easier in legal reasoning than to take these words in their moral sense". "Therefore nothing but confusion can result from assuming that the rights of man in a moral sense are equally rights in the sense of the Constitution and the law". Holmes said, "I think our morally tinted words have caused a great deal of confused thinking". Nevertheless, in rejecting morality as a form of natural law outside of and superior to human enactments, Holmes was not rejecting moral principles that were the ''result'' of enforceable law: "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law." Holmes's insistence on the material basis of law, on the facts of a case, has led some to characterize him as unfeeling, however.

George Washington University The George Washington University (GW or GWU) is a Private university, private University charter#Federal, federally-chartered research university in Washington, D.C., United States. Originally named Columbian College, it was chartered in 1821 by ...

law professor Jeffrey Rosen summarized Holmes's views this way: "Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold... an aristocratic nihilist who once told his sister that he loathed 'the thick-fingered clowns we call the people'." Jeffrey Rosen
"Brandeis's Seat, Kagan's Responsibility"
. ''The New York Times'', July 2, 2010. Retrieved July 5, 2010.

Reputation as a dissenter

Although Holmes did not dissent frequentlyduring his 29 years on the U.S. Supreme Court, he wrote only 72 separate opinions, whereas he penned 852 majority opinionshis dissents were sometimes prescient and acquired so much authority that he became known as "The Great Dissenter". Chief Justice Taft complained that "his opinions are short, and not very helpful". Two of his most famous dissents were in '' Abrams v. United States'' and ''

''.

Speeches and letters

Speeches

Only Holmes's legal writings were readily available during his life and in the first years after his death, but he confided his thoughts more freely in talks, often to limited audiences, and more than two thousand letters that have survived. Holmes's executor, John Gorham Palfrey, diligently collected Holmes's published and unpublished papers and donated them (and their copyrights) to Harvard Law School. Harvard Law Professor Mark DeWolfe Howe (son of Mark De Wolfe Howe) undertook to edit the papers and was authorized by the school to publish them and to prepare a biography of Holmes. Howe published several volumes of correspondence, beginning with Holmes's correspondence with Frederick Pollock, and a volume of Holmes's speeches, before his untimely death. Howe's work formed the basis of much subsequent Holmes scholarship. Holmes's speeches were divided into two groups: public addresses, which he gathered into a slim volume, regularly updated, that he gave to friends and used as a visiting card, and less formal addresses to men's clubs, dinners, law schools, and Twentieth Regiment reunions. All the speeches are reproduced in the third volume of ''The Collected Works of Justice Holmes''. The public addresses are Holmes's effort to express his personal philosophy in Emersonian, poetic terms. They frequently advert to the Civil War and to death, and express a hope that personal sacrifice, however pointless it may seem, serves to advance the human race toward some as-yet unforeseen goal. This mysterious purpose explained the commitment to duty and honor that Holmes felt deeply himself and that he thought was the birthright of a certain class of men. As Holmes stated at a talk upon receiving an honorary degree from Yale: In the 1890s, at a time when "scientific" anthropology that spoke of racial differences was in vogue, his observations took on a bleakly Darwinist cast: This talk was widely reprinted and admired at the time, and may have contributed to the popular name given by the press to the 1st United States Volunteer Cavalry (the "Rough Riders") during the

Spanish–American War The Spanish–American War (April 21 – August 13, 1898) was fought between Restoration (Spain), Spain and the United States in 1898. It began with the sinking of the USS Maine (1889), USS ''Maine'' in Havana Harbor in Cuba, and resulted in the ...

. On May 30, 1895, Holmes gave the address at a Memorial Day function held by the Graduating Class of Harvard University in Boston, Massachusetts. The speech, which came to be known as "The Soldier's Faith", expressed Holmes's view of the conflict between the high ideals that motivated his generation to fight in the Civil War and the reality of a soldier's experience and personal pledge to follow orders into battle. Holmes stated: In the conclusion of the speech, Holmes said: Theodore Roosevelt reportedly admired Holmes's "Soldier's Faith" speech, and it is believed to have contributed to his decision to nominate Holmes to the Supreme Court.

Letters

Many of Holmes's closest male friends were in England and he corresponded with them regularly and at length, speaking usually of his work. Letters to friends in England such as

Harold Laski Harold Joseph Laski (30 June 1893 – 24 March 1950) was an English political theorist and economist. He was active in politics and served as the chairman of the British Labour Party from 1945 to 1946 and was a professor at the London School of ...

and Frederick Pollock contain frank discussion of his decisions and his fellow justices. In the United States, letters to friends Morris R. Cohen, Lewis Einstein,

Felix Frankfurter Felix Frankfurter (November 15, 1882 – February 22, 1965) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, advocating judicial restraint. Born in Vienna, Frankfurter im ...

, and Franklin Ford are similar, although the letters to Frankfurter are especially personal. Holmes's correspondence with women in Great Britain and the U.S. was at least as extensive, and in many ways more revealing, but these series of letters have not been published. An extensive selection of letters to Clare Castletown, in Ireland, are quoted in ''Honorable Justice: The Life of Oliver Wendell Holmes'', by Sheldon Novick. These letters are closer to Holmes's conversation and cast light upon the style he adopted in judicial opinions, which were often designed to be read aloud. In a letter to a contemporary, Holmes made this comment on international comparisons: "Judge not a people by the ferocity of its men, but by the steadfastness of its women."

Retirement, death, honors and legacy

Holmes was widely admired during his last years, and on his ninetieth birthday he was honored on one of the first coast-to-coast radio broadcasts, during which Chief Justice

, Dean of Yale Law School

Charles Edward Clark Charles Edward Clark (December 9, 1889 – December 13, 1963) was the 5th Dean of Yale Law School and a United States circuit judge of the United States Court of Appeals for the Second Circuit. Education and career Born on December 9, 1889, in ...

, and the president of the American Bar Association read encomia. Holmes served on the Court until January 12, 1932, when his brethren on the Court, citing his advanced age, suggested that the time had come for him to step down. By that time, at 90 years and 10 months of age, he was the oldest justice to serve in the Court's history. (His record has been challenged only by

John Paul Stevens John Paul Stevens (April 20, 1920 – July 16, 2019) was an American lawyer and jurist who served as an associate justice of the Supreme Court of the United States from 1975 to 2010. At the time of his retirement, he was the second-oldes ...

, who in 2010 retired at 8 months younger than Holmes had been at his own retirement.) On Holmes's ninety-second birthday, newly inaugurated President

Franklin D. Roosevelt Franklin Delano Roosevelt (January 30, 1882April 12, 1945), also known as FDR, was the 32nd president of the United States, serving from 1933 until his death in 1945. He is the longest-serving U.S. president, and the only one to have served ...

and his wife,

Eleanor Eleanor () is a feminine given name, originally from an Old French adaptation of the Old Provençal name ''Aliénor''. It was the name of a number of women of royalty and nobility in western Europe during the High Middle Ages">Provençal dialect ...

, called on Holmes at his home in

Washington, D.C. Washington, D.C., formally the District of Columbia and commonly known as Washington or D.C., is the capital city and federal district of the United States. The city is on the Potomac River, across from Virginia, and shares land borders with ...

Holmes died of

pneumonia Pneumonia is an Inflammation, inflammatory condition of the lung primarily affecting the small air sacs known as Pulmonary alveolus, alveoli. Symptoms typically include some combination of Cough#Classification, productive or dry cough, ches ...

in Washington on March 6, 1935, two days short of his 94th birthday. He was the last living justice of the

Fuller Court The Fuller Court refers to the Supreme Court of the United States from 1888 to 1910, when Melville Fuller served as the eighth Chief Justice of the United States. Fuller succeeded Morrison R. Waite as Chief Justice after the latter's death, and F ...

; he had been between 1925 and 1932 the last justice of that Court to remain on the bench. In his will, Holmes left his residuary estate to the United States government (he had earlier said that "taxes are what we pay for civilized society" in '' Compañia General de Tabacos de Filipinas'' vs. ''Collector of Internal Revenue''
275 U.S. 87, 100 (1927)
) After his death, his personal effects included his Civil War officer's uniform still stained with his blood and "torn with shot" as well as the

Minié ball The Minié ball, or Minie ball, is a type of hollow-based bullet designed by Claude-Étienne Minié for muzzle-loaded, rifled muskets. Invented in 1846 shortly followed by the Minié rifle, the Minié ball came to prominence during the Crime ...

s that had wounded him three times in separate battles. Holmes was buried beside his wife in

Arlington National Cemetery Arlington National Cemetery is the largest cemetery in the United States National Cemetery System, one of two maintained by the United States Army. More than 400,000 people are buried in its 639 acres (259 ha) in Arlington County, Virginia. ...

. The

United States Postal Service The United States Postal Service (USPS), also known as the Post Office, U.S. Mail, or simply the Postal Service, is an independent agencies of the United States government, independent agency of the executive branch of the federal governmen ...

honored Holmes with a Prominent Americans series (1965–1978) 15¢

postage stamp A postage stamp is a small piece of paper issued by a post office, postal administration, or other authorized vendors to customers who pay postage (the cost involved in moving, insuring, or registering mail). Then the stamp is affixed to the f ...

. A bust of Justice Holmes, sculpted by Joseph Kiselewski, was installed in the Hall of Fame for Great Americans at New York University in New York City in 1970. Holmes's papers, donated to

, were kept closed for many years after his death, a circumstance that gave rise to somewhat fanciful accounts of his life. Catherine Drinker Bowen's fictionalized biography ''Yankee from Olympus'' was a long-time bestseller, and the 1946 Broadway play and 1950

Hollywood Hollywood usually refers to: * Hollywood, Los Angeles, a neighborhood in California * Hollywood, a metonym for the cinema of the United States Hollywood may also refer to: Places United States * Hollywood District (disambiguation) * Hollywood ...

motion picture A film, also known as a movie or motion picture, is a work of visual art that simulates experiences and otherwise communicates ideas, stories, perceptions, emotions, or atmosphere through the use of moving images that are generally, since ...

'' The Magnificent Yankee'' were based on a biography of Holmes by

Francis Biddle Francis Beverley Biddle (May 9, 1886 – October 4, 1968) was an American lawyer and judge who was the United States Attorney General during World War II. He also served as the primary American judge during Nuremberg trials following World War I ...

, who had been one of his secretaries. Much of the scholarly literature addressing Holmes's opinions was written before much was known about his life, and before a coherent account of his views was available. The Harvard Law Library eventually relented and made available to scholars the extensive Holmes papers, collected and annotated by Mark DeWolfe Howe, who died before he was able to complete his own biography of the justice. In 1989, the first full biography based on Holmes's papers was published, and several other biographies followed. Congress established the U.S. Permanent Committee for the Oliver Wendell Holmes Devise within the

Library of Congress The Library of Congress (LOC) is a research library in Washington, D.C., serving as the library and research service for the United States Congress and the ''de facto'' national library of the United States. It also administers Copyright law o ...

with the funds he left to the United States in his will, which were used to create a memorial garden at the Supreme Court building and to publish an ongoing series on the history of the Supreme Court. Holmes's summer house in

Beverly, Massachusetts Beverly is a city in Essex County, Massachusetts, United States, and a suburb of Boston. The population was 42,670 at the time of the 2020 United States census. A resort, residential, and manufacturing community on the Massachusetts North Sho ...

, was designated a

National Historic Landmark A National Historic Landmark (NHL) is a National Register of Historic Places property types, building, district, object, site, or structure that is officially recognized by the Federal government of the United States, United States government f ...

in 1972, recognition for his contributions to American jurisprudence. Justice Holmes was an honorary member of the Connecticut

Society of the Cincinnati The Society of the Cincinnati is a lineage society, fraternal, hereditary society founded in 1783 to commemorate the American Revolutionary War that saw the creation of the United States. Membership is largely restricted to descendants of milita ...

Clerks

"Many secretaries formed close friendships with one another", wrote Tony Hiss, son of

Alger Hiss Alger Hiss (November 11, 1904 – November 15, 1996) was an American government official who was accused of espionage in 1948 for the Soviet Union in the 1930s. The statute of limitations had expired for espionage, but he was convicted of perjur ...

, about the special club of clerks of Oliver Wendell Holmes Jr. They included: * Robert M. Benjamin (later, lawyer for an appeal by Alger Hiss) * Thomas Corcoran * Laurence Curtis, U.S. Representative *

, president of the

Carnegie Endowment for International Peace The Carnegie Endowment for International Peace (CEIP) is a nonpartisan international affairs think tank headquartered in Washington, D.C., with operations in Europe, South Asia, East Asia, and the Middle East, as well as the United States. Foun ...

and convicted perjurer * Donald Hiss, partner,

Covington & Burling Covington & Burling LLP is an American multinational law firm. Known as a white-shoe law firm, it is headquartered in Washington, D.C. and advises clients on transactional, litigation, regulatory, and public policy matters. The firm has addition ...

law firm * Irving Sands Olds, chairman of U.S. Steel * H. Chapman Rose, Undersecretary of the

United States Treasury The Department of the Treasury (USDT) is the national treasury and finance department of the federal government of the United States. It is one of 15 current U.S. government departments. The department oversees the Bureau of Engraving and ...

* Chauncey Belknap IV, name partner in Patterson Belknap Webb & Tyler, one of the largest law firms in New York during his time, and an attorney for the

Rockefeller Foundation The Rockefeller Foundation is an American private foundation and philanthropic medical research and arts funding organization based at 420 Fifth Avenue, New York City. The foundation was created by Standard Oil magnate John D. Rockefeller (" ...

, father of Robert L. Belknap

In popular culture

* American actor

Louis Calhern Carl Henry Vogt (February 19, 1895 – May 12, 1956), known by his stage name Louis Calhern, was an American actor. Described as a “star leading man of the theater and a star character actor of the screen,” he appeared in over 100 roles ...

portrayed Holmes in the 1946 play ''The Magnificent Yankee'', with Dorothy Gish as Holmes's wife Fanny. In 1950, Calhern repeated his performance in

Metro-Goldwyn-Mayer Metro-Goldwyn-Mayer Studios Inc. (also known as Metro-Goldwyn-Mayer Pictures, commonly shortened to MGM or MGM Studios) is an American Film production, film and television production and film distribution, distribution company headquartered ...

's film version '' The Magnificent Yankee'', for which he received his only

Academy Award The Academy Awards, commonly known as the Oscars, are awards for artistic and technical merit in film. They are presented annually by the Academy of Motion Picture Arts and Sciences (AMPAS) in the United States in recognition of excellence ...

nomination. Ann Harding co-starred in the film. A 1965 television adaptation of the play starred

Alfred Lunt Alfred David Lunt (August 12, 1892 – August 3, 1977) was an American actor and director, best known for his long stage partnership with his wife, Lynn Fontanne, from the 1920s to 1960, co-starring in Broadway theatre, Broadway and West End thea ...

and

Lynn Fontanne Lynn Fontanne (; 6 December 1887 – 30 July 1983) was an English actress. After early success in supporting roles in the West End theatre, West End, she met the American actor Alfred Lunt, whom she married in 1922 and with whom she co-starred i ...

in one of their few appearances on the small screen. * In the movie '' Judgment at Nuremberg'' (1961), defense advocate Hans Rolfe (

Maximilian Schell Maximilian Schell (8 December 1930 – 1 February 2014) was a Swiss actor. Born in First Austrian Republic, Austria, his parents were involved in the arts and he grew up surrounded by performance and literature. While he was still a child, his fa ...

) quotes Holmes twice. First, with one of his earlier opinions: Second, on the sterilization laws enacted in Virginia and upheld by the Supreme Court in '' Buck v. Bell'': : This was in relation to Holmes's support for eugenics laws in the United States, which Rolfe argued were not different in principle from the Nazi laws. In the earlier ''

Playhouse 90 ''Playhouse 90'' is an American television anthology drama series that aired on CBS from 1956 to 1960 for a total of 134 episodes. The show was produced at CBS Television City in Los Angeles, California. Since live anthology drama series of t ...

'' television version from 1959, which also quotes Holmes in this context, the tribunal judge Ives, who ultimately presents a dissenting verdict, is played by the actor Wendell Holmes (1914–1962), born Oliver Wendell Holmes. * Holmes appears as a minor character in

Bernard Cornwell Bernard Cornwell (born 23 February 1944) is an English author of historical novels and a history of the Waterloo Campaign. He is best known for his long-running series of novels about Napoleonic Wars rifleman Richard Sharpe. He has also writ ...

's novels ''Copperhead'' and ''The Bloody Ground'', the second and fourth volumes of his '' Starbuck Chronicles''; the novels portray the battles of Ball's Bluff and Antietam, in both of which the young Lieutenant Holmes was wounded in action. * The 1960s television

sitcom A sitcom (short for situation comedy or situational comedy) is a genre of comedy produced for radio and television, that centers on a recurring cast of character (arts), characters as they navigate humorous situations within a consistent settin ...

'' Green Acres'' starred Eddie Albert as a character named Oliver Wendell Douglas, a

Manhattan Manhattan ( ) is the most densely populated and geographically smallest of the Boroughs of New York City, five boroughs of New York City. Coextensive with New York County, Manhattan is the County statistics of the United States#Smallest, larg ...

white-shoe lawyer who gives up the law to become a farmer. His name is a combination of two Supreme Court Justices, Holmes and

William O. Douglas William Orville Douglas (October 16, 1898January 19, 1980) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1939 to 1975. Douglas was known for his strong progressive and civil libertari ...

. * The 1980 comic strip ''

Bloom County ''Bloom County'' is an American comic strip by Berkeley Breathed which originally ran from December 8, 1980, until August 6, 1989. It examined events in politics and culture through the viewpoint of a fanciful small town in Middle America, whe ...

'' features a character named Oliver Wendell Jones, a young

computer hacker A hacker is a person skilled in information technology who achieves goals and solves problems by non-standard means. The term has become associated in popular culture with a security hackersomeone with knowledge of bug (computing), bugs or exp ...

and gifted scientist.
''Holmes''. "This 75-minute staged reading stars Kevin Reese showcasing the wit and wisdom of Justice Oliver Wendell Holmes, Jr."
Written by Todd C. Peppers, Directed by Mary Hall Surface. World premier at the Arena Stage in Washington, D.C., October 30, 2023.

References

Explanatory notes

Citations

Primary sources

* * Collins, Ronald K. L., ed. (2010)
''The Fundamental Holmes: A Free Speech Chronicle and Reader'' (Cambridge University Press)
* Hoeflich, Michael H. and Davies, Ross E., eds. (2021). ''The Black Book of Justice Holmes: Text Transcript and Commentary''. The Lawbook Exchange, Ltd. .
Publisher's descriptionInterview with editorsLibrary of Congress blog
* * * * * ; The editor is the son of Mark De Wolfe Howe. * * * * * * * * * , with a foreword by Francis Biddle.

Bibliography

* Abraham, Henry J., ''Justices, Presidents, and Senators: A History of the U.S. Supreme Court Appointments from Washington to Bush II'' (5th ed., 2007). New York: Rowman & Littlefield Publishers. . * Aichele, Gary, ''Oliver Wendell Holmes, Jr.: Soldier, Scholar, Judge''. Twayne Publishers, 1989. * * 1991. * Bent, Silas, ''Justice Oliver Wendell Holmes: A Biography''. New York: The Vanguard Press, 1932. * Biddle, Francis, ''Mr. Justice Holmes''. Scribner, 1942. * Biddle, Francis, ''Justice Holmes, Natural Law, and the Supreme Court''. Macmillan, 1961
Reviewed
* Brown, Richard Maxwell, ''No Duty to Retreat: Violence and Values in American History and Society''.

University of Oklahoma Press The University of Oklahoma Press (OU Press) is the publishing arm of the University of Oklahoma. Founded in 1929 by the fifth president of the University of Oklahoma, William Bennett Bizzell, it was the first university press to be established ...

, Norman Publishing Division of the University, by arrangement with Oxford University Press, Inc., 1991. * Budiansky, Stephen, ''Oliver Wendell Holmes: A Life in War, Law, and Ideas''. W.W. Norton & Company, 2019
ReviewReview
* Burton, Steven J., ed., ''The Path of the Law And Its Influence: The Legacy of Oliver Wendell Holmes, Jr.'' Cambridge University Press, 2000. * * Cohen, Henry, "Oliver Wendell Holmes Jr.: Life and Philosophy", ''The Federal Lawyer'', Vol. 51, No. 1, January 2004), pp. 22–25. A version of this article is in '' The Dictionary of Modern American Philosophers'' (2005). * Cushman, Clare, ''The Supreme Court Justices: Illustrated Biographies, 1789–1995'' (2nd ed.) ( Supreme Court Historical Society), (

Congressional Quarterly ''Congressional Quarterly'', or ''CQ'', is an American publication that is part of the privately owned publishing company CQ Roll Call, which covers the United States Congress. ''CQ'' was formerly acquired by the U.K.-based Economist Group and ...

Books, 2001) . * Davies, Ross E. and Hoeflich, M. H., eds. (2020)
''Holmes Reads Holmes: Reflections on the Real-Life Links Between the Jurist & the Detective in the Library, in the Courtroom, and on the Battlefield: Featuring Arthur Conan Doyle's The Adventure of the Blue Carbuncle''
Clark, New Jersey: Talbot Publishing, an imprint of the Lawbook Exchange, Ltd. * * Frankfurter, Felix, ''Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court''. Cambridge, Massachusetts: Dunster House Bookshop, 1927. * Frankfurter, Felix
"Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court".
Harvard Law Review, Vol. 41, No. 2 (December 1927), pp. 121–173. * Includes Frankfurter, Felix, "Mr. Justice Holmes and the Constitution: A Review of His Twenty-five Years on the Supreme Court", pp. 46–118. * Frankfurter, Felix, ''Mr. Justice Holmes and the Supreme Court''. Cambridge, Massachusetts: Harvard University Press, 1938. * Friedman, Leon and Israel, Fred L. (4 vols.), ''The Justices of the United States Supreme Court: Their Lives and Major Opinions''. New York: Facts on File, Inc., 2013. * * Gordon, Robert W., ed., ''The Legacy of Oliver Wendell Holmes, Jr.'' Stanford University Press, 1992. * Grant, Susan-Mary, ''Oliver Wendell Holmes, Jr.: Civil War Soldier, Supreme Court Justice''. Routledge, 2016. * Grey, Thomas C.
"Bad Man from Olympus"
''The New York Review of Books'' (July 13, 1995). * Hall, Kermit L., ed., ''The Oxford Companion to the Supreme Court of the United States''. New York: Oxford University Press, 1992. . * Hart, H. L. A.br>"Holmes's Common Law"
''The New York Review of Books'', October 17, 1963. *
Review
* Howe, Mark DeWolfe, ''Justice Oliver Wendell Holmes, Volume 1: The Shaping Years, 1841–1870''. Harvard University Press, 1957. The author is the son of Mark De Wolfe Howe. * Howe, Mark DeWolfe, ''Justice Oliver Wendell Holmes, Volume 2: The Proving Years, 1870–1882''. Harvard University Press, 1963. * Hurst, James Willard, ''Justice Holmes on Legal History''. The Macmillan Company, 1964. * Kang, John M., ''Oliver Wendell Holmes and Fixations of Manliness''. Routledge, 2018
ReviewReview
* Kellogg, Frederic R., ''The Formative Essays of Justice Holmes: The Making of an American Legal Philosophy''. New York: Bloomsbury Academic, 1984. * Kellogg, Frederic R., ''Justice Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint''. Cambridge University Press, 2007. * Kellogg, Frederic R., ''Oliver Wendell Holmes Jr. and Legal Logic''. University of Chicago Press, 2018. * Kornstein, Daniel, ''The Second Greatest American''. AuthorHouse, 2017. * Lewis, Anthony, '' Freedom for the Thought That We Hate: A Biography of the First Amendment'' (Basic ideas. New York: Basic Books, 2007). . * Lian, Alexander, ''Stereoscopic Law: Oliver Wendell Holmes and Legal Education''. Cambridge University Press, 2020. * Martin, Fenton S. and Goehlert, Robert U., ''The U.S. Supreme Court: A Bibliography''. Congressional Quarterly Books, 1990. . * Matteson, John, ''A Worse Place Than Hell: How the Civil War Battle of Fredericksburg Changed a Nation''. New York: W. W. Norton and Company, 2021. . * Menand, Louis, '' The Metaphysical Club: A Story of Ideas in America''. New York: Farrar, Straus and Giroux, 2001. . * Mendenhall, Allen, ''Oliver Wendell Holmes Jr., Pragmatism, and the Jurisprudence of Agon: Aesthetic Dissent and the Common Law''. Bucknell University Press, 2016. * Mikhail, John
"Holmes, Legal Realism, and Experimental Jurisprudence"
''The Cambridge Handbook of Experimental Jurisprudence'', forthcoming. Posted 29 March 2024, Revised 8 April 2024. * Monagan, John S., ''The Grand Panjandrum: Mellow Years of Justice Holmes''. Lanham, Maryland: University Press of America, 1988. . * * Pohlman, H. L., ''Justice Oliver Wendell Holmes & Utilitarian Jurisprudence''. Cambridge, Massachusetts: Harvard University Press, 1984. . * Pohlman, H. L., ''Justice Oliver Wendell Holmes: Free Speech and the Living Constitution''. New York University Press, 1991. * Rabban, David M., ''Law's History: American Legal Thought and the Transatlantic Turn to History''. Cambridge University Press, 2012. . * Rogat, Yosal
"The Judge as Spectator"
''University of Chicago Law Review'', Vol. 31, no. 2, Winter 1964, pp. 213–256. Legal scholar Thomas C. Grey writes that

Edmund Wilson Edmund Wilson Jr. (May 8, 1895 – June 12, 1972) was an American writer, literary critic, and journalist. He is widely regarded as one of the most important literary critics of the 20th century. Wilson began his career as a journalist, writing ...

's essay on Holmes in '' Patriotic Gore'' is "the best of all the brief favorable assessments of Holmes's life and work; a comparably brilliant short study on the other side is Yosal Rogat, "The Judge as Spectator". Grey, Thomas C.
"Bad Man from Olympus"
''The New York Review of Books'' (July 13, 1995), n.5. * Rogat, Yosal, and O'Fallon, James M.
"Mr. Justice Holmes: A Dissenting Opinion – The Speech Cases"
''Stanford Law Review'', Vol. 36, No. 6 (July 1984), pp. 1349–1406. * Rosenberg, David, ''The Hidden Holmes: His Theory of Torts in History''. Harvard University Press, 1995. . * Snyder, Brad, ''The House of Truth: A Washington Political Salon and the Foundations of American Liberalism''. Oxford University Press, 2017. * Urofsky, Melvin I., ''The Supreme Court Justices: A Biographical Dictionary''. New York:

Garland Publishing Garland Science was a publishing group that specialized in developing textbook A textbook is a book containing a comprehensive compilation of content in a branch of study with the intention of explaining it. Textbooks are produced to meet t ...

, 1994. . * Vannatta, Seth, ed., ''The Pragmatism and Prejudice of Oliver Wendell Holmes Jr.'' Lexington Books, 2019. * Wells, Catharine Pierce, ''Oliver Wendell Holmes: A Willing Servant to an Unknown God''. Cambridge University Press, 2020
Review
* White, G. Edward
''Justice Oliver Wendell Holmes: Law and the Inner Self''. Oxford University Press, 1993.
* White, G. Edward, ''Oliver Wendell Holmes: Sage of the Supreme Court''. Oxford University Press, 2000; also published as ''Oliver Wendell Holmes, Jr.'' Oxford University Press, 2006. * Wilson, Edmund, "Justice Oliver Wendell Holmes," ch. XVI of '' Patriotic Gore: Studies of the Literature of the

''.

Farrar, Straus and Giroux Farrar, Straus and Giroux (FSG) is an American book publishing company, founded in 1946 by Roger Williams Straus Jr. and John C. Farrar. FSG is known for publishing literary books, and its authors have won numerous awards, including Pulitzer P ...

, 1962
Reviewed by David W. Blight
(" e chapters of Stowe, Grant, and Holmes... alone make the book worth reading. Holmes... is Wilson's ultimate hero.") * Wilson, Edmund, "The Holmes-Laski Correspondence", in ''Eight Essays''. Garden City, New York: Doubleday & Company, Inc., 1954, pp. 217–238.

External links

Fanny Holmes, Wife Of Supreme Court Justice Oliver Wendell Holmes, Jr.

* * *
Oliver Wendell Holmes, Jr., Recalls Famed Abraham Lincoln Fort Stevens Visit, Original Letter
at Shapell Manuscript Foundation *

* * * * ttps://www.c-span.org/video/?21064-1/justice-beacon-hill ''Booknotes'' interview with Liva Baker on ''The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes'', September 8, 1991.
Arlington National Cemetery
, - , - {{DEFAULTSORT:Holmes, Oliver Wendell 02 1841 births 1935 deaths 19th-century Massachusetts state court judges 20th-century Massachusetts state court judges American eugenicists American legal writers American people of English descent American Unitarians Burials at Arlington National Cemetery Chief justices of the Massachusetts Supreme Judicial Court Corresponding fellows of the British Academy Deaths from pneumonia in Washington, D.C. Hall of Fame for Great Americans inductees Harvard College alumni Harvard Law School alumni Harvard Law School faculty Hasty Pudding alumni Justices of the Supreme Court of the United States Lawyers from Boston Massachusetts Republicans People from Beacon Hill, Boston People from Mattapoisett, Massachusetts People of Massachusetts in the American Civil War Philosophers of law Union army officers United States federal judges appointed by Theodore Roosevelt