The disadvantages of the Court’s location in the Capitol had a number of consequences that had become so routine as to go unnoticed until circumstances forced attention on them. Notably, there was no space for offices for the justices, all of whom accordingly worked from home. The Court provided each a $2,000 allowance for furniture and a set of law books—which, however, were often so dilapidated and incomplete as to be useless.17
The Court convened at noon each day that it was in session, with a break from two to two-thirty, then resumed until four-thirty. The judges had no real facilities for eating lunch, which was delivered to the courtroom by their messengers every day and quickly consumed during the half-hour recess. That in itself was a major innovation reluctantly introduced by Chief Justice Fuller—who “hated to change anything,” Holmes said—just before Holmes’s time: previously the Court met without break from noon to four, and the judges took turns, two at a time, ducking behind the screen to the rear of the chief justice’s chair to eat their hasty meal, “clashing their knives and forks” as the lawyers’ arguments went on out front. Holmes had his meal carried to the Court from his home or a restaurant in an old Civil War–era painted ammunition tin, which he used as his lunchbox for his entire time on the Court.18
The old Supreme Court chamber
The Court’s library and its conference room, where the justices met each Saturday morning for their deliberations, were even more inconvenient, small, cluttered, ill-ventilated rooms in the Capitol basement. During long conferences, Justice Charles Evans Hughes remembered, “the room became overheated and the air foul . . . not conducive to good humor.” He added, “I suppose that no high court in the country had fewer conveniences.”19
Nonetheless the old courtroom was loved by many. “Isn’t a beauty,” Holmes told Mark Howe in 1933. “I wouldn’t want to sit anywhere else,” he said, and expressed no regret he would never have the chance to occupy the new Supreme Court building. Frankfurter later said he thought it was “almost a desecration of tradition” for the Court to forsake its familiar room for the new “marble palace” a block away. There was also a worry that the Court had lost some of its connection with the life of the nation when the justices were no longer seen walking the corridors of the Capitol, brushing elbows with the hordes of visiting tourists each spring, as did the senators and congressmen.20
The plainness of the old courtroom, with its low bench and close proximity of judges and counsel, Dean Acheson thought, “combined dignity with true republican simplicity.” An observer at the time described the questioning of counsel by the justices in that intimate setting as “more like a confidential conversation” than the inquisitorial ordeal it sometimes seemed to terrified lawyers appearing before the high court for the first time.21
TAKING NO CHANCES—and getting in a small humorous dig at his impatient successor Knowlton—Holmes waited until literally the last minute to give up his old job. As he strode forward through the Supreme Court chambers to take the oath of office on Monday, December 8, 1902, he handed the Court’s reporter, Charles Butler, a telegram addressed to the governor of Massachusetts, and asked him if he would have the marshal of the Court forward it: noting that he could not very well be a justice of two courts at the same time, it officially informed the governor of his resignation as chief justice of Massachusetts.22
Two weeks later he wrote Mrs. Curtis in tearing high spirits, the gloom of the fall entirely vanished in the rush of new duties:
I wish I could have a talk with you—this experience here has been so much more impressive than I dreamed. . . . My past work is a finished volume—the new is a beginning of life over again. I have not looked upon a woman save in the way of kindness. All my interest and energy have been taken up in this mighty panorama of cases from every part of our great empire involving great interests, raising questions I never have heard of, argued by the strongest men the country can show or submitted for peremptory action on big records which you have to get the point of in half an hour.
I am glad to find that some of my brethren despaired when they first came here. I did for 48 hours—and I had a rheumatism and a horrid cold to emphasize the point, as I sat in a barren room of a hotel. But I am now in a temporary house—looking out on Lafayette Square—the White House just across the road—wonderfully convenient and sufficiently comfortable.
I have begun to get the hang of the work. I think I can do my share all right. I am better in health—and I begin to be cheerful. I wrote my first decision this last week and yesterday at 11 sent it to the printer. When I got home the proofs were waiting. I shall have nine copies of the corrected thing tomorrow and give them to the other gents to pick at. For the first time in my life I have had flashes of a sense of responsibility. You know that I always have said one should not have. One should think about the question—to feel responsibility is steam out of the boiler—egotism in disguise—but things here are so solemn and tremendous that the thought will break in at times.23
“You were right in predicting that the vague awe would wear off,” he told her a few weeks later. “I don’t see that the cases need such a very long time to write them in, as is imposed. I have touched off mine pretty quick—to the amusement of my brethren. I think they like me and my work—but everything is so diplomatic here that I wouldn’t swear to anything. Anyhow I still am happy and glad that I tackled the great adventure.”24
He was unsure at first how his practice of writing short opinions would go over. Many of the justices felt compelled to address all the points that had been raised by the attorneys in their briefs so that they would feel their arguments had been taken seriously. Holmes insisted it was necessary only to deal with the decisive crux of the case. “I don’t believe in the long opinions which have been almost the rule here,” he told Mrs. Gray a few weeks into the job. “I think that to state the case shortly and the ground of decision as concisely and delicately as you can is the real way. That is the English fashion and I think it civilized. Therefore I try each week when we are sitting to turn off my case, and to announce it the following Monday. I think it pleases the chief who as an executive officer likes to get work done.”25
When the nine printed copies of the corrected proofs of an opinion were circulated, the justices indicated their approval or disapproval on their copy and sent it back to the author. The “returns,” as they were called, often contained little more than a brief handwritten comment—“I concur” or “Fine” if the justice agreed, “I dissent” if they did not—though sometimes they made lengthier comments, raised questions, or suggested specific changes or marked edits directly on the proofs.
By the end of the first week of January, Holmes had already circulated three opinions and was pleased with the warm response he had received from the brethren. “As clear as a bell. Concur. E. D. W.,” Justice Edward D. White wrote on his return of Holmes’s first opinion. Justice Henry Billings Brown offered some praise that Holmes found particularly reassuring, given his untraditional belief in writing short and to the point: “I hope your opinion may call the attention of our brethren, including myself, to the value of brevity, in respect to which I think we are all sinners. H.B.B.”26
Holmes’s own returns to the other justices brimmed with his usual uninhibited high spirits, and were apt to include oddball slang, cornball pseudo-French, snatches of poetry, and self-deprecating wisecracks: “A sockdolager.” “Yes—twice if I can get in two votes.” “Wee Mussoo—I float in a fairy bark to the bight and serenely anchor there with you.” “I am in it with both feet.” “Yes, with humility. I now see what you have been about when I was giving parties their constitutional right to jaw while I slept.” “Ye crags & Peaks, I’m with you once again.” And once: “I dissent. ‘Loan’ is not a verb.”27
His speed and brevity did cause problems when an unusually large number of petitions for rehearing were filed his first year, the lawyers in the cases refusing to believe the justices could possibly have given due consideration if a dec
ision came back in just two or three weeks. “Such humbugs prevail!” Holmes fumed to Pollock. “If a man keeps a case six months it is supposed to be decided on ‘great consideration.’ It seems to me that intensity is the only thing. A day’s impact is better than a month of dead pull.”28
His satisfaction with his initial plunge made him only want to work faster. “I am in full blast here,” he told Clara Stevens in January, 1903, and began peppering the chief justice with notes asking for additional cases to be assigned to him:
Dear Chief Justice
I am on my last case barring the one you told me not to write until further notice . . .
If you will give some of yours I will be grateful.
P.S. I shall finish the last tomorrow.
Dear Chief Justice
. . . If there are 2 more weeks—I can write almost any old thing that anyone will give me. A case doesn’t generally take more than two days if it does that.29
He was so eager to take on additional assignments that once he offered to help out a fellow justice who was struggling with the opinion for the Court in a case Holmes had dissented to. Holmes ended up drafting the entire decision for him, one of the only times a justice wrote both majority and dissenting opinions in the same case.30
Fuller, who labored over his own writing, was plainly pleased to have such a zealous new colleague. Appointed chief justice by Grover Cleveland in 1888, Fuller had come to the Court with less experience in public life than anyone ever to occupy the position. He had never been a judge or held federal office. But he was a successful lawyer from Chicago, and a staunch Democrat, and Cleveland was looking for a candidate from Illinois for the usual reasons of geographic balance, and his first choice—Judge John Schofield of the Illinois Supreme Court—had declined the nomination because he did not want to raise his nine children in Washington. Newspapers called Fuller the most obscure man ever named to the position. His appointment, wrote a Harvard Law School classmate, “was a genuine surprise to himself, to the profession and to the country at large.”31
Fuller was so small a man that he had to have his chair elevated and a hassock placed under his feet to keep his legs from swinging in the air. “Oh, but there were giants on the Court in those days,” Fuller had said, no doubt half in jest. But in fact a number of the senior associate justices were towering men, which accentuated their comical contrast in physical stature.32
No one thought Fuller’s strength was in writing opinions, or even in setting a direction for the Court, though he had consistently joined the Court’s majority in its increasingly reactionary and pro-business interpretation of the Constitution during his twenty-two years as chief justice. In 1895 the Court had ruled the income tax unconstitutional, and had so narrowly restricted Congress’s power over interstate commerce as to invalidate virtually any efforts to regulate business or economic activity through federal legislation: only measures focused exclusively on the movement of goods across state lines could meet their new test of constitutionality. In 1897 the Fuller Court had likewise held most state laws regulating business unconstitutional, as a violation of the Fourteenth Amendment’s guarantee that no state shall “deprive any person of life, liberty, or property without due process of law.” And in Plessy v. Ferguson, the Court upheld state-imposed racial segregation, establishing the notorious “separate but equal” rule that would be the law of the land for more than half a century.
The most forceful and certainly the most colorful figure on the Court was John Marshall Harlan, whom Holmes described as not only the last of the tobacco-spitting judges but a “savage,” though capable of tender-hearted gestures: on Holmes’s birthday he placed a little bunch of violets at Holmes’s place on the bench. Harlan had been appointed in 1877, the longest serving of any of the justices by more than a decade at the time Holmes joined the Court. A contemporary observer described his “grey eagle of a face, surmounted by a massive dome of a head.” He had a booming voice, and “his was not the temper of a negotiator,” said Attorney General George W. Wickersham, who argued many a case before him.33
The Fuller Court
As Holmes too would be known in his later years, Harlan was called “the great dissenter.” A Kentuckian who had been a pro-slavery Unionist during the war, and who had opposed even Lincoln’s reelection in 1864, Harlan had filed a powerful and impassioned dissent in Plessy, arguing that segregation was by its very nature a “badge of slavery” and a “brand of servitude and degradation” that the Thirteenth Amendment had put an end to, along with slavery itself. “The law regards man as man,” he declared, “and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved. . . . The thin disguise of ‘equal’ accommodations . . . will not mislead any one, nor atone for the wrong this day done.”
Announcing his dissent in the income tax case, Harlan had become so furious that he grew red in the face and banged on the bench, glowering at the chief justice. The Nation called it “the most violent political tirade ever heard in a court of last resort.”34
“His is a simple nature, but a forcible intellect and a personality that it would be hard to replace—under superficial shortcomings a great engine—and a noble courage,” Holmes wrote to Mrs. Curtis shortly after joining the Court. The two never got along, but Holmes would humorously deflect Harlan’s assaults when discussions in conference grew heated by calling him “my lionhearted friend.”35
Although Holmes at sixty-two was well past the average age for appointment to the Court, there were only two justices younger than him at that point. One, with whom he hit it off immediately, was Edward Douglass White, a Louisianan who had fought as a private in the Confederate army for two years, before being taken prisoner at the surrender of Port Hudson following Grant’s capture of Vicksburg in 1863. White’s father had been a governor of Louisiana and he himself had been a U.S. senator before being appointed to the Court in 1894.
White lived in a massive stone Victorian townhouse at 1721 Rhode Island Avenue, five blocks north of Holmes’s rented house in Lafayette Square, and the two justices soon fell to walking home together each day. “A fertile mind and charming man,” Holmes described him to Mrs. Gray. “White and I are getting to be pals, as we walk together. He is stout and goes slow and I get half frozen and if I peep he says it was on my account and soon we lapse back as before.”36
The intellectual wattage of the rest of the Court was distinctly dimmer. Dean Acheson once asked Holmes what Justice Rufus W. Peckham, another key figure of the Fuller Court, had been like, intellectually.
“Intellectually?” Holmes replied, in great puzzlement. “I never thought of him in that connection.” Holmes later summarized Peckham’s judicial temperament: “I used to say his major premise was God damn it, meaning thereby that emotional predilections somewhat governed him on social themes.”37
Peckham had been the leading force on the Court in reading laissez-faire economics into the Constitution via the doctrine that the Fourteenth Amendment embodied the absolute protection of “liberty of contract”—which Peckham had extolled in one opinion as a right of man “endowed by his Creator.”38
The other justices were so unremarkable that the authors of a comprehensive set of biographies of Supreme Court justices strained to pierce “the shroud of anonymity” that enfolded their lives and careers. The retirement of Justice George Shiras Jr. in 1903, they wrote, “attracted little notice, and his death even less, for Shiras appeared to have been an undistinguished justice.”39
For all of his shortcomings as a jurist himself, Fuller was an able administrator of the Court, and well liked by his fellow justices. Along with White, the chief quickly became Holmes’s closest friend among the brethren. Some saw opportunism in Holmes’s cultivation of Fuller, but there was genuine regard and a simple warmth of feeling in Holmes’s affection for his senior colleague, for all of their differences. Opposites in political affiliation, religious belief, and intellectual s
tyle, they nonetheless enjoyed a friendship, Fuller’s biographer wrote, that was “one of the most notable in the history of the Court.”40
When Fuller’s wife died in 1904, Holmes visited him every Sunday morning to keep him company on what would otherwise be a lonely time of the week. “Poor gallant little man—he is hard hit by the death of his wife,” Holmes told Mrs. Curtis, “and I think likes to have me come. . . . So I make it a rule to do it.”41
Holmes always spoke with genuine admiration of Fuller’s ability to get the business of the Court done “easily, swiftly, with the least possible friction, with imperturbable good-humor, and with a humor that relieved any tension with a laugh.” It was Fuller who inaugurated the custom—still followed to this day—of all the justices shaking hands with one another every morning, as a way to defuse the tensions that arose from their inevitable disagreements.42
For Fuller’s part, he was grateful for Holmes’s reliability and readiness to tackle any assignment. Just before the Court’s February recess, Fuller told his wife that, thanks to “The Nimble Holmes,” they were likely to dispose of fifty cases at their next meeting—more than ever before.43
HOLMES’S VERY FIRST OPINION, one of two he delivered the first Monday of January 1903, was a shot across the bow.
Otis v. Parker had been brought as a challenge to a provision in California’s constitution that banned buying stock on margin. It gave Holmes the chance to enunciate several of his favorite themes, as well as directly take on the Supreme Court’s growing use of the Fourteenth Amendment to invalidate state laws. In writing the majority opinion for the Court he carried all of the justices with him but Peckham and David J. Brewer in asserting that there were limits to how far the Court might substitute its own judgment for that of legislators. “General propositions do not carry us far,” he began.
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