Oliver Wendell Holmes

by Stephen Budiansky

  As chief justice he was relieved of circuit duty, but if anything he drove himself harder than ever. “I am mad with work and high pressure and the consequence is that I fairly need discourse with you,” he wrote to Mrs. Curtis. “We are smashing through the docket and everything is going with a whiz.”72

  He loved “bossing the show,” he said. One small change he ordered was for the justices to resume wearing robes, a practice they had abandoned in 1792 when the Massachusetts chief justice, incensed over the appointment of a judge he considered uncouth and unqualified, refused to wear his robe so all the others would be forced to follow suit, and thus deprive the new appointee of the trappings of dignity he felt he did not deserve. In response to a petition by the bar, Holmes decided the time had come to bring judicial attire back. (The first day, the judges were struggling to tie their robes properly when the minister who was to read the prayer for the opening session of the court entered the room. “Ah, an expert!” Holmes welcomed him, and the clergyman proceeded to show the bewildered justices how it was done.)73

  In February 1902, Associate Justice Horace Gray of the U.S. Supreme Court, who had been ailing for some months, suffered a stroke. Though he did not immediately resign his seat, the news set off a wave of behind the scenes political maneuvering over his replacement. Custom dictated the seat would be filled by another man from New England, most likely from Massachusetts, as was Gray. “I am as out of politics as it is possible to be—so much so that if I were willing instead of profoundly unwilling to pull wires for myself in case Gray resigns I hardly should know what to do,” Holmes wrote to Mrs. Stevens.74

  That was not entirely true. One of Massachusetts’s senators was Holmes’s old friend Henry Cabot Lodge, whom he had known since Lodge was a boy, and who was a close adviser to President Theodore Roosevelt. Lodge was already lobbying hard for Holmes’s appointment. But the rule of “senatorial courtesy” dictated that judicial appointments have the support of both senators of the state the candidate was from, and Massachusetts’s other senator was George Frisbie Hoar, a much older man who was definitely not well disposed to Holmes. Hoar thought his lawyer nephew was the perfect candidate for the job—and that in any case Judge Holmes was not. “His accomplishments are literary and social,” Hoar sniffed to Lodge, “not judicial. In his opinions he runs to subtleties and refinements, and no decision of his makes a great landmark in jurisprudence.”75

  Through the summer Hoar kept up a barrage of anti-Holmes barbs. “I always talk with lawyers, when I meet them about the State, about the Court,” he wrote Lodge again two weeks later. “I never heard anybody speak of Judge Holmes as an able judge. He is universally regarded as a man of pleasant personal address . . . but without strength, and without grasp of general principles.” “The whole thing is an awful blunder,” he insisted.76

  Boston’s conservative business community—the men who had regarded Holmes as “dangerous” for his labor decisions—stuck in some quiet knives of their own. Eben S. Draper, a leading textile manufacturer, wrote Lodge to warn that the bar considered Holmes “erratic, and that he is not a safe man for such an important position.” But Roosevelt liked what he had seen about Holmes: he was a romantic who shared his view that “life is a great adventure”; his “Soldier’s Faith” speech spoke TR’s language; and, as Lodge was quick to assure the president, he was a loyal Republican.77

  Roosevelt also considered Holmes’s labor decisions a strong point in his favor: “The ablest lawyers and greatest judges are men whose past has naturally brought them into close relationship with the wealthiest and most powerful clients,” the president wrote Lodge, “and I am glad when I can find a judge who has been able to preserve his aloofness of mind so as to keep his broad humanity of feeling and his sympathy for the class from which he has not drawn his clients.”78

  But he did want reassurance on one point. The Court had recently ruled 5–4 to uphold a tariff on sugar and tobacco imported from Puerto Rico and the Philippines, American possessions. Justice Gray had been one of the slender majority. Protective tariffs were a bedrock Republican principle, and other similar cases were likely to come up again. “Now I should like to know that Judge Holmes was in entire sympathy with our views . . . before I would feel justified in appointing him,” Roosevelt told Lodge.79

  Roosevelt arranged for Holmes to meet him secretly at his Long Island summer home, Sagamore Hill, on July 25. When Holmes arrived he found the president was out for the day on his yacht—so “dodged the reporters,” who “were not on the lookout”—and was left on his own to entertain the Roosevelt children at dinner with stories of his Civil War adventures. (“Gathered afterwards that I gave satisfaction.”) A telegram then arrived that the president was fogged in and would not be back until the next day. The next morning he saw Roosevelt at nine. “I had a little talk with him in which he said just the right things and impressed me far more than I had expected and then I bolted so as not to be seen.”80 The appointment was announced August 11.

  The Senate was in recess until December, and Roosevelt had at first wanted to give Holmes a recess appointment so he could take his seat immediately. But knowing of Hoar’s opposition, Holmes was uneasy about giving up his place in Massachusetts without the assurance of the Senate’s confirmation, and asked Roosevelt to just submit his name to the Senate and wait for December. The president said he would consult Lodge about the recess appointment, but reassured him he had nothing to fear:

  My dear Judge:

  I have your letter of the 17th. Pettigrew said that South Carolina was too small for an independent republic and too large for a lunatic asylum. The Senate is not too large for a lunatic asylum, and if there is any opposition whatsoever to your confirmation, I shall certainly feel that it fulfills all the conditions of one. Seriously, I do not for one moment believe that a single vote will be cast against your confirmation. I have never known a nomination to be better received.81

  Meanwhile, Holmes’s Massachusetts colleague Marcus Knowlton, desperately eager for the chief justice position and knowing that the current governor would appoint him but the next one might not, started to ominously warn Holmes that he must resign immediately, no matter what: to do otherwise would be a grave insult to the Senate. Holmes was amused by the transparency of Knowlton’s motives, but asked Roosevelt what to do; Roosevelt wrote two days later to report that Lodge had agreed there was no necessity for a recess appointment, and “meanwhile, I strongly feel that you should continue as Chief Justice of Massachusetts.”82

  On December 4, 1902, he was unanimously confirmed, and was on his way to a new life in Washington, on the eve of his sixty-second birthday.

  CHAPTER 10

  “So Great and So Different”

  It was a realization of ambition but it was also the closing of a chapter. As Holmes had prepared for the move to Washington that fall, he sank into a melancholy that surprised him for a while. “The principal and rather absurd thing is the depth of gloom in which I was plunged for a time on what so far has been a triumph,” he told Clara Stevens. To John Gray he confided that “the sense that this is the last quarter of the race” weighed on his spirits.1

  Paying his farewells and cleaning out the house reminded him also how deeply rooted he was to the town of his birth. He wrote to Clara Stevens later that fall,

  Lord what a job it is to empty a single desk. I burned some papers the other day that had been a shrinking dread for 25 years—more. Some of my earliest law experiments and I just simply feared and loathed looking at them . . . destroyed the whole boodle—pouf—one feels better—and yet part of one’s past disappears—one’s roots grow in the dead accumulations. And when you have purged your home of everything that is not vital now you feel like a cut flower.

  He added: “How many years have we known each other. How long is it since I paid you a visit I never made to Emerson.”2

  He was also painfully sensitive about what the newspapers were saying about the appointment. Though he was bitter
ly stung by a few columns that called him “more brilliant than sound,” or, as the New York Evening Post had archly commented, “more of a ‘literary feller’ than one often finds on the bench,” the praise if anything annoyed him more. “They make my nomination a popular success but they have the flabbiness of American ignorance,” he complained to Pollock. “It makes one sick when he has broken his heart in trying to make every word living and real to see a lot of duffers, generally I think not even lawyers, talking with the sanctity of print in a way that discloses to the knowing eye that literally they don’t know anything about it.”3

  Most of the positive comment focused on his siding with labor in the Vegelahn case—yet without “the slightest discrimination or notion, favorable or unfavorable, of what my work had amounted to,” Holmes recalled to Einstein twenty-five years later, when it obviously still rankled.4

  It was a deeper nerve this all had touched, because for all of his philosophical belief in work as an end in itself, he had been thinking a lot about what he had actually accomplished, and had his doubts. Two years before, at a dinner given him by the Bar Association of Boston the night before his fifty-ninth birthday, in March 1900, he had grown wistful looking back on how quickly the years had gone by and wondering “what is there to show” for “this half lifetime” he had spent on the bench:

  I look into my book in which I keep a docket of the decisions of the full court which fall to me to write, and find about a thousand cases. A thousand cases, many of them upon trifling or transitory matters, to represent nearly half a lifetime! A thousand cases, when one would have liked to study to the bottom and to say his say on every question which the law ever has presented, and then to go on and invent new problems which should be the test of doctrine, and then to generalize it all and write it in continuous, logical, philosophic exposition, setting forth the whole corpus with its roots in history and its justifications of expedience real or supposed!

  Alas, gentlemen, that is life. . . . We cannot live our dreams. We are lucky enough if we can give a sample of our best, and if in our hearts we can feel that it has been nobly done.5

  Now, with the end of his career on the Supreme Judicial Court definitely in sight, he had a feeling of facing “a day of judgment on how I have done my work so far,” he told John Gray. “Of course for purposes of action and courage one goes ahead on his own will, whatever may be said. But for purposes of joy one needs recognition—intelligent and to the point. One is always so near to despair that it does not take much to bring in the black humor.”6

  But as the time finally approached, courage began to win out. “Those who run hardest probably have the least satisfaction with themselves, but they find, I am sure, that they know most of the joy of life when at top speed,” he proclaimed in a speech that fall in Chicago, where he had been invited to join in the dedication of the Northwestern University Law School. And at the banquet the Middlesex Bar Association gave him on the eve of his Senate confirmation in December, he concluded his remarks of thanks with a rhetorical flourish full of images of battle, of making ready to storm the enemy earthworks, climaxing with the call, “Bugler, blow the charge!”7

  Holmes’s colleagues sometimes thought he talked about the Civil War just a bit too often, and one young Boston lawyer who was at the banquet, Dixon Weston, sent his cousin—Chief Justice Melville W. Fuller—an account of Holmes’s speech, with the amused warning, “There is about to be a charge upon your Court.”8

  It turned out to be a more serious prediction than either realized.

  HOLMES HAD BEEN to Washington just once since the end of the Civil War, when he had argued his case before the Supreme Court in 1878. He reminisced to his Boston colleagues at their farewell banquet, “The capital, with its asphalt pavements, is not quite unknown to me. But my notion of Washington still is the notion of the Washington of war times, where mule teams sank to their knees in mud, where at every other door one saw signs bearing the words ‘Embalming the Dead,’ with an occasional alleviation in the form of ‘Sample room in the rear.’ ”9

  Washington had filled out the monumental framework of streets, squares, and broad diagonally crossing avenues of Pierre L’Enfant’s original plan, but it was still “a small, gangling southern city,” as Dean Acheson recalled it in those early years of the century. Washington’s population at the turn of the century was 278,000, almost exactly half that of Boston’s. Its streets were uncrowded with traffic, and the broad sidewalks of Connecticut Avenue leading from the White House to the fashionable residential district toward Dupont Circle were twice their present-day width, shaded by a double row of sycamore trees. Throughout the city flowering magnolias abounded.10

  Where the Mall now stands was a chain of public parks, laid out in the naturalistic style. The largest and most picturesque was the forest-like grounds of the Smithsonian Institution between Seventh and Twelfth Streets, a glade of winding footpaths and drives that followed gentle hills under the shade of magnificent chestnuts, in the days before the blight eliminated that stately epitome of American parklands and woodlands. Potomac Park, formed from a massive landfill of the swampy banks of the river where the Lincoln Memorial stands today, was just starting to be landscaped under a beautification plan approved by Congress. Along Rock Creek, which stretched from the African American shanties and industrial areas of Georgetown into wilder parts to the north and west, the National Zoological Park had opened just a few years earlier—its grounds designed by the preeminent landscape architect Frederick Law Olmsted—and miles of quiet bridle trails penetrated the untamed woods of the adjacent park, which were filled each spring with carpets of wildflowers.

  The whole city seemed bright and fresh, recalled Francis Biddle, a marked contrast to the dirty streets of his native Philadelphia. The pace of life was distinctly slow, southern, and “feminine in its charm.” The Shoreham Hotel, at Fifteenth and H streets, was a “period piece of southern hostelry,” Acheson fondly remembered, with a “serene dining room decorated in white with mirrors and chandeliers,” where Washington’s power brokers took their leisurely luncheon every day.11

  The day Holmes arrived in Washington he was met at the train station by “an elderly colored man,” as Holmes later related his arrival, who informed him that he had been his predecessor Mr. Justice Gray’s messenger, and would now perform the same service for him.12

  The Court’s messengers were a venerable institution, as well as a vivid reminder of the capital’s irredeemable Southern ways. All of the messengers were African American men who held the job for life; some had inherited their position from a father or uncle before them. The messengers did not just handle the justices’ mail and deliver sensitive documents, such as proofs of draft opinions, but performed any menial services the justice required—chauffeur, valet, cook, barber, waiter—or for that matter did not require. They were actually still often referred to as “body-servants,” and for justices unused to such a quaintly feudal Southern institution, it came as something of a shock. “My body‐servant is the most annoying thing I have experienced,” a justice from Ohio remarked in the 1880s. “The fellow is the first man I see in the morning and the last man I see at night. He forces his way into my bedroom in the morning and orders me down to breakfast, taking my order himself to the cook. I cannot get rid of him in any way. He haunts me all the time. I try to think of places to send him, but he is back again as quick as lightning. That fellow will be the death of me. I have this satisfaction, however; the other justices are tortured in the same way.”13

  Despite the servile nature of the duties, the positions offered pay and security far beyond what most African American workers at the time could expect; the salary was about $1,000 a year, six times what an African American laborer made then. And in a world full of daily indignity for men of color, the position was one of stature and respect. When Holmes attended the funeral of his first messenger, John Craig, a few years later, the pastor of the Metropolitan A.M.E. Church, after pronouncing the eulogy, inv
ited “The gentlemen of the Supreme Court” to rise and be recognized. As the justice was about to get to his feet, he saw that all the men standing were Craig’s fellow messengers.14

  The Court in those days met in the old Senate chamber of the Capitol; it would not be until 1935 that it finally moved into a building of its own. The chamber was austere but dignified, a semicircular half-domed room forty-five feet wide with a mahogany screen and a colonnade of marble Ionic columns forming the straight wall behind the judges’ elevated bench and a line of marble pilasters along the curving wall with busts of the former chief justices between. The floor was carpeted in soft brown and the benches for the public cushioned in red velvet.

  The dignity was sometimes of the genteel shabby kind, as upkeep did not always have a high priority; only when the carpet was reduced to threads was it finally replaced, and then in exactly the same brown hue as the original. The dim lighting provided by three tiny windows above the screen made one reporter think of a parlor more than a courtroom, while the “imperfect” heating and ventilation left parts of the room cold and other parts hot and the “air in any part has only remote relationship to the fresh breeze which you may have been enjoying if you have walked up Capitol Hill,” the reporter observed. “I wonder that the Judges have endured it as long as they have.”15

  Still, it was a vast improvement over the previous home of the Court, which was in the Capitol basement in a room that reminded one reporter of a “potato hole,” lacking even a robing room for the justices, which offered the daily spectacle of the justices filing in and taking their robes in turn from a peg along the wall, and donning their judicial dress in full view of the lawyers and public. With their courtroom in the old Senate chamber the judges had a robing room across the hall, which allowed for a more dignified entrance through a roped-off passageway between the assembled spectators in the corridor.16