One of the circus posters in the copyright case Bleistein v. Donaldson Lithographing (1903)
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, as well as for possible peculiar conditions which this Court can know but imperfectly, if at all. Otherwise, a constitution, instead of embodying only relatively fundamental rules of right, as generally understood by all English-speaking communities, would become the partisan of a particular set of ethical or economical opinions, which by no means are held semper ubique et ab omnibus.
Even if the provision before us should seem to us not to have been justified by the circumstances locally existing in California at the time when it was passed, it is shown by its adoption to have expressed a deep-seated conviction on the part of the people concerned as to what that policy required. Such a deep-seated conviction is entitled to great respect.
He took equal satisfaction in an opinion he delivered the first Monday of the following month, finding that a chromolithographed circus poster was entitled to the protection of the copyright laws. “It would be a dangerous undertaking for persons trained only to the law to constitute themselves final judges of the worth of pictorial illustrations,” he wrote in his opinion, noting that “the taste of any public is not to be treated with contempt.”44
Chicago Record-Herald, February 3, 1903
He wrote Mrs. Curtis, “Last Monday I fired off a decision upholding the cause of low art and deciding that a poster for a circus representing decolletées and fat legged ballet girls could be copy-righted. Harlan, that stout old Kentuckian, not exactly an aesthete, dissented for high art. . . . The Chicago Record-Herald has a cartoon of me in my gown pointing with a stick at one of the numerous sketches of high kickers on the wall, with the legend, ‘The Supreme Court says they are all right.’ ”45
THE SOCIAL RULES of Washington in the early 1900s had aspects of a Renaissance court, transported to the Old South. The prominent members of Washington society who owed their standing to something other than position in government were mostly descendants of old Maryland and Virginia families, who had decidedly antebellum views of caste, as well as mostly unreconstructed views of the Confederacy. “The cave dwellers,” Belknap and his young group of friends called them. Mrs. Ralph Cross Johnson, a wealthy widow who would be Holmes’s neighbor and friend, living right across the street at 1735 I Street, never ceased thinking it amusing to call him “a damned Yankee.” A highlight of the Washington social season was the Ladies’ Southern Relief Society ball at the Willard Hotel, which raised funds for destitute Confederate veterans. The United States Marine Band provided the music and one thousand “Dixie Belles” and their consorts, the Washington Post reported, attended the annual event.46
“The types that strike me here with the most freshness are the snob and the Gracious Lady,” Holmes told Mrs. Gray. “The snob needs no comment. The Gracious Lady is generally large . . . imperfectly educated—more or less rich—and plays at demi-princess who inhabits or ought to inhabit a demi-palace with some good and many poor things in it.” He added to Richard Hale, “You couldn’t get into a drawing room without tripping over a dozen of them.”47
The ex-Confederate from Virginia he had met on the Etruria back in 1896, W. Gordon McCabe—who had indeed become “a friend for life,” as he had predicted to Lady Castletown—offered a good specimen of the antebellum, if not antediluvian, attitudes he encountered in moving to Washington, so marked a contrast from democratic New England. “They all have a sort of stiff-lipped solemnity of adhesion to an ideal—their rather rudimentary notion of a gentleman,” Holmes said of the Southerners he had met. He enjoyed talking to McCabe about books and listening to his stories, and occasionally gently challenged his romantic talk of the “graciousness” and “civilization” of “the Old South,” but other times his patience was sorely tried. McCabe would start going on about this and that person from Richmond or Charleston, invariably referring to them as “gently born.” Holmes would finally explode. “Did every even numbered house in Charleston and Richmond have a Van Dyke and every odd one a Rembrandt? Gently born! What a bawdy expression! Down in the South don’t they have any whores and muzzle loaders?”—a muzzle loader being Civil War slang for a backward or crude person, the opposite of a rapid-firing breech loader.48
Official Washington maintained a strict protocol of who would invite whom to dinner when and on what day of the week the ranking ladies were to be “at home” to receive the homage of the other wives and any other callers. Monday was for the Supreme Court; Tuesday, members of Congress; Wednesday, the Cabinet; and so on through Saturday, for the diplomatic corps. Cards would be left—two of the husband’s, one of the wife’s, with their corners turned down—and ceremonial tea consumed.49
Holmes and his wife found themselves dining out nearly every night, but also were invited by the Roosevelts for informal family suppers and accompanied them to the theater several times. “They seem to like us there,” he said.50 The formal occasions, however, could be burdened to the point of deadliness by the rules of precedence that dictated who would sit where and in what order the guests would be received or take their leave—“a ridiculous bore insisted on in a rather snobbish way by some of them here,” Holmes said. “If anybody is not put in his or her precise place he or she sulks.”51
He got the full experience of Washington—and Southern—social mores at the annual official reception for the justices, which took place just a month after they arrived. He sent Mrs. Curtis a bemused account:
I don’t believe much more in my own canons of taste than I do in those of others—only they are mine and govern me. There was a reception at the White House, for the judges this week—and it is said that Southerners bolted because there was a negro present. I noticed that one of my colleagues gave offence to our Empress, Mrs. Chief Justice, by making his bow before she and her man did. He left for some reason at once and he is a Southerner. He is a pal of mine—but to me he played the naif. It seems as if everybody smiled and lied. I don’t do that sort of thing—but am as my wife says, a child of nature. . . .
You might say that this place does not make you feel proud of your country and yet I believe there is a vast amount of ability and public spirit here.52
He told other friends, “To see a common soul mistaking itself for uncommon because its body sits on the right of the hostess or walks first out of the room! I see several, or one poor little snob in particular, always trying to get ahead of his place & it makes me grin.” “As I said to John Hay, if a man can write better opinions than I he may go out ahead of me and if he can’t I don’t care whether he does or not.”53
His own stature in Washington, however, he found was still under his father’s shadow. At one afternoon tea, the wife of a western congressman began telling him that his was a household name to her, and assuring him how much she had always enjoyed Elsie Venner and all of his other “splendid books.” Holmes tried to explain that that was his father, not him; at which the woman even more insistently expostulated that he was being “entirely too modest” and should not hide his literary light under a bushel. Holmes wordlessly resumed drinking his punch. The Washington Post caught wind of the story and ran a brief account under the headline JUSTICE HOLMES SIGHED.54
TO THE AMAZEMENT of acquaintances who had known her reclusiveness in Boston, Fanny took to the part expected of the wife of a prominent official with aplomb and even apparent ease, going out to dinners and “rushing about madly returning calls on people she doesn’t know.” She kept a visiting book dutifully logging the hundreds of calls made and received throughout the season, and began pasting newspaper articles of Washington news and events in a scrapbook to keep up with the talk of the town.55
“Little as she cares for society she ta
kes it like a little man and you would think to see her that she liked it thoroughly,” Holmes reported to Mrs. Curtis in mid-January, adding a few weeks later,
She has been a great success although she won’t believe it. Mrs. Lodge said she wrote to Boston the other day that my wife was It. But she gets more pleasure from solitude than from society and I think that some day when we have paid back some of our social debts (the people keep an exact account here—another thing I don’t admire) we shall drop out—or quiet down a good deal. But at present we are on the top of the wave.56
Agnes Meyer, who was much taken by Fanny when she got to know her a few years later, thought few people in Washington realized how much her husband owed to this “brilliant woman who was content to play second fiddle to the maestro.” On at least one occasion Holmes privately gave her credit for a witty thrust he worked into one of his Supreme Court opinions. Holmes held that the performance of a piece of music in a restaurant without paying a royalty to the publisher was an infringement of copyright, as the restaurant profited even if it did not directly charge for the performance. “The object is a repast in surroundings that to people having limited powers of conversation, or disliking the rival noise, give a luxurious pleasure not to be had from eating a silent meal,” he wrote in the line he told Mrs. Curtis that Fanny had come up with.57
Meyer thought Fanny’s “plain appearance, restraint, and modesty” made it easy to overlook her subtle mind, and likewise her “conversation was so playful and artful that its incisiveness escaped any but the most careful listeners.” One whom it did not escape was President Roosevelt: her mordant wit made her an instant hit with him. At their first dinner at the White House, she remarked to the President that “Washington is full of famous men and the women they married when they were young,” which made TR roar.58 And she completely flummoxed the Russian ambassador, notorious for repeating salacious stories to ladies. When he tried one on her, she showed not the slightest surprise or disapproval, merely countering with an even more risqué one of her own. The ambassador reportedly never told a dirty joke to an American woman again.59
One of her other quick comebacks became a famous story in the Holmes household. When one “gracious” Southern gentlewoman she was introduced to began prattling on about how she had met a Mrs. Holmes in Boston years earlier, “But, my dear, quite an old woman. I scarcely think she would be living now,” Fanny—who quite remembered their earlier meeting—deadpanned, “That must have been the Judge’s first wife.”60
Deputed to assist at Mrs. Holmes’s weekly Monday “at homes,” Belknap was amused by the stream of sardonic sotto voce comments she would make to him about her guests. “Most of these occasions were as tepid as the tea,” Acheson remembered, observing that “Washington social talk, like that of all single interest societies, is repetitious and dull.” Mrs. Holmes would try to get rid of the boring wives of congressmen as quickly as possible. “She would sometimes whisper to me, ‘Give that pouter pigeon over there this little glass of Cherry Bounce and see if it will bounce her out,’ ” Belknap recalled. She also, unlike her husband, did not worry about letting the Southern Gracious Ladies know what she thought of their Confederate nostalgia: at one White House dinner for the justices, she apparently snubbed or insulted the widow of the Confederate hero General “Stonewall” Jackson, which caused the president’s military aide, Archie Butt, a young Georgian full of Southern pride, to refuse to shake her hand afterward whenever they met.61
In some ways, Belknap and many others thought, Fanny was a shrewder judge of Washington society and character than her husband. Fanny once related to Belknap the time their friend Arthur D. Hill, a lawyer from Boston, was invited to dine at the White House, and stayed with them. When Hill returned from his dinner, Fanny, who was thoroughly familiar with TR’s political charm offensives, asked him if he had had a wonderful time, and then said, “Let me tell you what happened. The President put you on his right hand. He talked to you more than anybody else during the evening. He talked about what you might do for him in politics in Boston, in Massachusetts, and then from time to time he would verge off into a discussion of the ancient Irish sagas or something equally erudite.”
Hill looked at her in amazement and blurted out, “Mrs. Holmes, were you behind the door?”62
The gossip of the town could, however, be sharp-tongued, and as Holmes told Mrs. Gray, “One realizes here the possibility of having enemies, which one rather thought a romantic fiction in Boston. But here rivalries—envies—ambitions—grow fierce. I believe Hoar regards my appointment as a chronic grievance—and I think he doesn’t lie awake nights loving me, but I may be wrong.” Everything in Washington, he found, was politics and political advantage: “One learns in Washington—or ought to, I never shall, to suspect ulterior motives, and to ask ‘why did he say that.’ ” As he told Clara Stevens a few years later, “Most Washington friendships one must stand ready to unhook at short notice and other changes with politics or hair.”63
If he had not lost his eye for pretty young women, he found Washington not as conducive to flirtation as London, or even Boston. He facetiously complained to his female correspondents that his rank required him always to be seated at dinners next to “dowagers,” but conceded that perhaps that was just as well “in this center of gossip.” At one White House dinner where Holmes, as usual, was stuck between two older women, Roosevelt looked on with amusement, then remarked to Fanny, “Look at him—the sex instinct is strong enough in him to make him talk to Mrs.——— . I wish I could do that. Do you suppose it is real or is he putting it on!”64
But with Fanny now accompanying him on social occasions for the first time, “I have all the companionship I need,” Holmes said. When he did have the opportunity to work his charm on younger women he now mostly made it into an obvious bit of play acting, bringing his wife into the scene to rebut any implications that might set Washington tongues wagging.65
He sent Mrs. Codman a tongue-in-cheek account of one such foray: “I went to the reception and vainly urged my wife to introduce me to a being in pink of possibly bad form but certainly good shape—to repeat a little joke I made. I told my wife I wished to drop gracefully on one knee raise the lady’s hand to my lips and devote to her the shattered remnant of a romantic existence. But it was no go.” A few weeks later, at the wedding of the daughter of a fellow justice attended by all official Washington from the president on down, he “somehow” found himself talking to the same “very pretty girl” of good shape, and played the farce to its conclusion:
We gave each other notice of hostile intentions and that we were out for scalps & she told me that I might play in her backyard if I didn’t play with other girls—and jabbered French to me tutoying me at once. But I fear the tragedy ends there—as I don’t have time to play in backyards, and for other reasons too numerous to mention.66
“My whole time passes in writing opinions and adoring you,” he playfully told Mrs. Codman. One of the few exceptions to his avoiding new relations with pretty young women in Washington was the serious friendship he struck up with the Baroness Moncheur, the American wife of the Belgian ambassador. She was twenty-seven; her husband, a widower with three young daughters, was twenty years older. They had met a few years earlier when her father was the American ambassador to Mexico, where Baron Moncheur was also posted. Their Washington home was one block from the house Holmes and Fanny bought the year after their arrival. Hers was one of Holmes’s last new friendships in the mold of his deep romantic and intellectual attachments to younger women, and they exchanged numerous letters about their lives and thoughts. A few years later from Turkey she wrote him,
My dear friend—You needn’t worry about your advancing years nor the distance between us nor anything else that I can think of while your letters bring me the exquisite thrill that so far has always accompanied them. Seriously & thoughtfully I always feel that my separation from you is one of the great deprivations of my life & I haven’t talked as you & I
talk since I told you goodbye.
“Don’t let the joy of our intimacy fade out,” he told her. “I don’t expect to make new friends now.”67
IN FEBRUARY 1903, during that first winter in Washington, was also when he met Lewis Einstein for the first time. Einstein had just joined the State Department, and at age twenty-six was already the author of an erudite work on the Italian Renaissance in England. He would subsequently write a book that proved to be an accurate prophecy of the First World War, as well as a biography of Theodore Roosevelt and a vivid account of his time in Constantinople during the disastrous Dardanelles campaign and the Turkish genocide of the Armenians.
Einstein had previously met Lady Castletown in England, where he also met his soon-to-be wife, a twice-divorced Anglo-Greek beauty named Helen Ralli who was fourteen years older than him. Lady Castletown asked him to call on her friend Justice Holmes in Washington, and Einstein later recalled the rented house in Lafayette Square, hung with fox-hunting prints, which struck him as particularly incongruous. The two men stayed up well past midnight talking about art and philosophy.68
Posted shortly afterward to Paris on his first diplomatic assignment, Einstein sent a letter to Holmes—“I don’t recall how or why”—and Holmes immediately replied. That began a correspondence that continued for thirty years, with Holmes sending his young friend more than two hundred letters, filled with his thoughts and reflections that are some of his finest.69
When the spring came, Holmes and Fanny went for a drive in a horse-drawn cab to Cabin John’s Bridge in Maryland, and for the first time since he was carried down the C & O Canal after the Battle of Ball’s Bluff he saw the canal again, and the bluffs of the Potomac, which he found beautiful and enchanting.70
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