He also made a visit to the haunting sculpture Henry Adams had commissioned from Saint-Gaudens that stood over the otherwise unmarked grave in Rock Creek Park of his wife, Clover, who had committed suicide in 1891. The bronze depicted an androgynous hooded and cloaked figure. Magazine writers had named the sculpture “Grief” or “Despair,” but Holmes wrote to Mrs. Gray, “I should not call it despair any more than hope. It is simply the end and silence. The universe escapes epithets. It is enough if you find it beautiful and awful.”71
As the end of the term approached, he wrote to Mrs. Curtis, “At bottom I am profoundly happy, because the task I have undertaken is so great and so different. I would not give it up for anything.” He had written twenty-nine decisions, beating or tying everyone but the chief, despite having started three months into the term. “Having the last word and knowing that there isn’t any incompetent idiot who can reverse you or do anything but swallow what you say” was a pleasure; but more than that, for the first time in his life he felt “up against a greatness that comes from outside,” and “feeling a vast world vibrate to one’s determinations.”72
“The importance of the things we have to deal with makes me shudder from time to time but I don’t lie awake over them, and try to think of them merely as problems to be handled in just the same way whether they involve $25 or the welfare of a state or a people,” he told Mrs. Gray that May. “I think you would worry sometimes if you had the job.”73
But, he said, “I do just love my job.”74
CHAPTER 11
Due Process
That summer of 1903 Holmes was off to England again, by himself again. This time he stayed at the Hotel Curzon in the fashionable Mayfair district, but other than that his London holidays were now a routine. “I am once more an habitué of London,” he wrote Mrs. Gray. He had lunch and dinner every day with one of his friends—Lady Castletown, the Pollocks, the Scotts, Mrs. Clifford, Ethel Grenfell, Lady Burghclere; he went to the theater—Sarah Bernhardt in Plus que Reine—and to the opera; and he indulged in a veritable shopping spree at London’s tailors, bootmakers, haberdashers, and hatters, buying shirts, coats, formal trousers, vests, cravats, gloves, merino socks, a silk umbrella, and an opera hat.1
As usual, he spent August in Ireland, but this time the Castletowns were entertaining a raft of guests at Granston and Doneraile for the whole time. “I suppose I must earn my living by trying to make myself agreeable to casual guests,” he complained in a letter from Granston Manor in mid-August, and found himself reluctantly dragged along with the Castletowns’ horsey set to the Dublin Horse Show and the Cork Races. Near the end of his stay at Doneraile he wrote Mrs. Gray, “Houseful of people with a garden party in prospect—how I hate such disturbances of a quiet life!” The evenings were occupied with bridge, which left Holmes to read a book or talk to “a chance lady”; during the day the others did “sporting things” that equally left him to his own devices. “I prefer the role of Samson in the lap of Delilah so far as permitted,” he ruefully said, suggesting it was not permitted as far as he had hoped. “It is not without a tragical side to come to places and think how more than possible it is that it is for the last time,” he told Mrs. Gray, but he would in fact have two more visits there before time and circumstances put an end to his travels abroad.2
It was during this time at Doneraile that he met Canon Patrick Sheehan, who had admired his father’s books and asked Lord Castletown to introduce him to his distinguished American visitor. Sheehan was a local literary celebrity in his own right, the author of several Irish-themed novels and Catholic devotional works. From whatever odd mixing of human chemistry, the two men took an instant liking to one another.
Holmes’s agnosticism was of the tolerant kind, but he never had much intellectual patience with the dogmatism and superiority of religious faith. “I think man has taken himself too seriously, to which he has been helped very much by the clergy,” he once said, and often complained that “the humility of the Christian is based on the arrogant assumption that he has been let in on the ground floor by God.”3 He loathed empty shows of public piety—the politician who called for “prayers for peace” provoked him to remark, “Prayers are like nettlerash—anything from heat to champagne may bring them out.”4
But just as he never lost his admiration for Emerson, or Pen Hallowell, or the other idealists who had fired his youth, he was moved by traditions and beliefs that men were willing to give their lives to, even if he did not share them himself. He once told Einstein of spending a few days in a small settlement in the middle of Illinois, where he and the young Cabot Lodge had gone grouse hunting just after the Civil War. “I realized that Cotton Mather would not have seemed out of place there. The Minister impressed me more than any other clergyman ever did. I said to him, ‘I should not think life would be happy with your beliefs.’ He answered, ‘It is not.’ And his face had deep lines.”5
On his return home from Doneraile, Holmes sent the Irish priest a copy of his speeches, and Sheehan sent the American jurist a copy of his mystically poetical memoir Under the Cedars and Stars. Holmes found himself absorbed at once, reading the canon’s book to the exclusion of all the others he had planned to get to, deeply moved by “the song of the words” and the “love and exaltation” it expressed.6
Holmes wrote to Sheehan a few days after he had begun the book. “I am as far as possible from being on your side—but I still hope you will have room for a little pleasure when I say that your book moves me more intimately by old world feeling than anything that I have read for a great while and that if you did not regard me as an enemy I think it might be that we should recognize each other as friends.”7
Canon Patrick Sheehan
But Sheehan felt a kindred spirit in Holmes’s tolerant skepticism, moral courage, and philosophical resignation—which, he pointed out to his agnostic friend, mirrored the Catholic teachings of charity and vocation. Sheehan later told Holmes of the excitement he felt whenever a letter arrived with his familiar handwriting on the envelope. Several years after their first meeting, when Sheehan was in the hospital in Cork—a sudden collapse “brought me to the gates of death,” he said—he wrote to Holmes, “Your friendship is one of the sheet-anchors of life.”8
“Odd as it seems that a Saint and a Catholic should take up with a heathen like me,” Holmes told friends, he found Sheehan “a gentle poetic cultivated lonely soul.” He said to another Irish friend, the historian Alice Stopford Green, “I love him. He has a lovely soul. He is almost always savagely Catholic in his books and yet finds a place for me in his affection. I wonder if ever priests are not quite so cocksure as they say.”9
BEFORE LEAVING FOR England, he had agreed to buy the house at 1720 I Street—which was customarily written in those days as “Eye Street,” to avoid confusion with 1st Street—which would be his permanent Washington home. “I long for the time when I shall be in a house of my own,” he wrote to Mrs. Gray. “I expect to feel more at home there than I ever did in Beacon St. That was my father’s house—not mine!” As before, when they had bought their house on Chestnut Street in Boston, he left the project entirely to Fanny, “only requiring that I be asked no questions.”10
As soon as they returned to Washington just before the start of the Court’s term on the first Monday in October, Fanny hired an architect to oversee a complete remodeling of the house, and she also busily went to work shopping for furniture and draperies at the Woodward & Lothrop department store, ordering lighting fixtures and wallpaper, signing contracts for new plumbing equipment, and arranging for servants for their new home. Holmes reported a few months later that his wife was working “like a strenuous Bostonian—which is quite a different thing from the work of the normal Washingtonian. Here they promise whatever you like and take their ease.” Against “every kind of obstacle,” Fanny was able to overcome “the detailed incompetency and general slackness of most people in this town,” and they were looking forward to settling in at last by the end of D
ecember.11
The remodeling, which included completely redoing two rooms on the second floor into a study and library for Holmes to work in, came to $13,357.44, to which the architects added their 10 percent fee; the total was equal to about $400,000 today. Fanny spent thousands of dollars more on everything from curtain rings to lampshades to bird cages to movers’ bills: among the crate-loads of household goods shipped from Boston were Holmes’s four tons of books, waiting to be unpacked and placed on the shelves of the new bookcases built into the library, secretary’s study, and drawing room. Holmes said he would be happy once again to be surrounded by his familiar books, to able to find his handkerchiefs, and to take his underclothes from a drawer instead of the trunks they had been living out of for a year.12
Facing the plunge back into his work on the Court that fall, Holmes thought that his time in London had been good mental preparation. “There are many Londons, but mine is the enemy of the banal—makes you fire snap-shots, talk short, be casual, and take your chances of missing when you say your best thing. It helps one to write better decisions when he gets back—no padding in mine, if I can help it,” he wrote to Mrs. Gray. “I have not yet got very grave with the prospective cares of my work, but there are many little things to think of and do before I go, and once more give the newspapers a chance to declare me either a person of second rate reputation or a brilliant jurist, according to their liking of some decision in which I take part.”13
The newspapers were one thing, but it was inescapable that the Supreme Court’s judgments would be viewed through the lens of politics, much more so than Holmes had experienced as a judge on the Massachusetts Supreme Judicial Court. Felix Frankfurter would always tell the story of the time John Chipman Gray, one of the foremost authorities on the law of property, was asked to teach a course at Harvard on constitutional law. After one semester, horrified, he swore never to do it again. Constitutional law, Gray despairingly said, “was not law at all, but politics.”14
That was true in the sense that constitutional questions inevitably had political consequences. But as Holmes’s Harvard Law colleague James Thayer had pointed out in several much-noticed essays on constitutional law published a few years before Holmes went to Washington, the Supreme Court in the last two decades of the nineteenth century had chosen to insert itself into legislative questions in a way that sharply departed from past practice, and which had greatly raised the political stakes of its rulings.
For its first hundred years, the Supreme Court had exercised great caution in declaring legislative acts invalid, generally holding that a statute had to be in violation of the Constitution “beyond all reasonable doubt” before a court would overturn the “will of the people.” This was not just a matter of deference to the legislature, Thayer said, but a recognition that no constitution was ever meant to dictate a prescription for every situation that might arise. For judges to invalidate statutes based on a “pedantic and academic treatment” of the text, while disregarding the legislative purpose behind an act, was to ignore the reality that any constitution is going to be subject to differing interpretations. Courts do have a duty to stop legislatures from manifest abuses of power—passing a law giving its current members seats for life, for example—but short of that, Thayer argued, “Whatever choice is rational is constitutional.”15
But beginning around 1886, the Supreme Court began striking down scores of laws that it deemed to be “unreasonable.” In the two decades before Holmes joined the Court, it had invalidated some seventy state laws and a dozen acts of Congress, most on the grounds that the legislation violated the Fourteenth Amendment’s Due Process Clause, or went beyond a very narrow reading of Congress’s enumerated powers under the Constitution.
A conservative majority led by Justice Peckham held that state laws setting rates on railroads, requiring inspection of meat or stockyards, allowing an owner the chance to redeem his foreclosed property, regulating the purchase of insurance, or licensing salesmen all deprived persons of “liberty” or “property” without due process of law, in violation of the Fourteenth Amendment. As Peckham read the Due Process Clause, the Constitution permitted practically no government interference with private property or the economy except what was absolutely necessary to protect public health or safety.
Many state high courts had taken a similar tack, striking down laws regulating businesses or protecting the rights of workers. While on New York’s high court before he joined the United States Supreme Court in 1895, Peckham had denounced a law setting the rates grain elevators could charge as “vicious in its nature, communistic in its tendency” and a violation of “the most sacred right of property and the individual liberty of contract.” Whatever economic abuses might exist in society, he wrote in his opinion in People v. Budd, would automatically be corrected “by the general laws of trade, supply and demand,” not by “paternal government.”16
The movement to read laissez-faire economics into the Due Process Clause had not come about by chance. It was the direct result of a calculated legal strategy aimed at undermining the progressive Reconstruction state governments in the former Confederate states, and simultaneously vitiating protections for the newly freed slaves in the three constitutional amendments adopted in the aftermath of the Civil War. John Archibald Campbell, a Louisianan and former U.S. Supreme Court justice who had resigned his position to join the Confederate government, had filed a series of lawsuits beginning in 1868 seeking to limit the power of the state government to establish public schools, impose taxes, or enact other progressive legislation.
He was also incensed by the sight of “Africans in place all about us,” serving as jurors, post office clerks, and legislators. When the racially integrated Republican state legislature passed a law to improve sanitation in New Orleans by creating a central slaughterhouse and requiring the city’s butchers to operate from this single public market, Campbell saw an opportunity, and filed suit on behalf of the butchers alleging a violation of the Fourteenth Amendment’s right of liberty.17
It was a creative legal maneuver, since it aimed to turn an amendment adopted with the purpose of guaranteeing the equal civil rights of the emancipated slaves into a tool of conservative retrenchment. Although in 1873 the Supreme Court upheld the Louisiana statute in a 5–4 decision, it was a victory in disguise for Campbell.18
For one thing, the majority opinion almost completely gutted one of the Fourteenth Amendment’s other key protections of the rights of the freedmen. The authors of the amendment had clearly understood it to make the individual rights guaranteed by the Constitution binding on the states and directly enforceable by federal legislation. The key provision for this was the Privileges or Immunities Clause, which declared that “no state shall make or enforce any law that shall abridge the privileges or immunities of citizens of the United States.” The amendment further declared that all American citizens were citizens both of the state they reside in and of the United States, and gave Congress the power to enforce its terms with appropriate legislation.
Those provisions, like the rest of the Fourteenth Amendment, had been aimed squarely at the “Black Codes” that the first, all-white, Southern state legislatures reconstituted immediately after the Civil War had adopted. Their avowed intention was to keep the freedmen in as close a condition to slavery as possible, forbidding them to own or rent farmland, enter any trade except agricultural labor without a special license, assemble in groups, keep firearms, or live with whites, and requiring them to enter into annual labor contracts or face summary arrest.
But in the Slaughter-House Cases the Court majority held that the only “privileges or immunities” of a citizen of the United States were such uniquely federal responsibilities as the right to obtain a passport: free speech, freedom of assembly, the right to counsel, and the other provisions of the Bill of Rights were not included. Ten years later, in the Civil Rights Cases, the Court further drained much of the Fourteenth Amendment of its original purpose when it struck
down a federal civil rights law prohibiting racial discrimination in public accommodations. The Court held 8–1 that even though the Fourteenth Amendment explicitly empowered Congress to enforce its provisions, the amendment’s guarantee of equal rights applied only to action by states, not private parties; thus Congress had no power to restrict the “individual invasion of individual rights” by innkeepers, railroads, or theaters.
As in Plessy, Harlan was the lone dissenter, writing bitterly that by narrowing the Fourteenth Amendment’s scope to state action, the Court had reduced its soaring promises of equality for all to “splendid baubles, thrown out to delude those who deserved fair and generous treatment at the hands of the nation.”19
The minority opinion in Slaughter-House was Campbell’s other secret victory. Within a decade, the dissenters’ reasoning had been adopted by many state courts, and a few years later by the United States Supreme Court as well. Their key “discovery” was that the Due Process Clause did not merely guarantee what would come to be somewhat tautologically referred to as “procedural due process”: namely, the right to a fair trial before the state exacted a penalty entailing loss of life, liberty, or property. It also, the Court said, embodied protections of “substantive due process” for other, unspecified rights—chiefly the economic “right” to pursue any lawful occupation or business without interference by the government.
Notably, an 1885 decision by the New York high court invalidated a law prohibiting cigar factories in tenement buildings, finding that limitations on a person’s choice or place of work were “infringements upon the fundamental rights of liberty, which are under constitutional protection.”20 The U.S. Supreme Court elevated the Slaughter-House dissent to the law of the land in 1897 in Allgeyer v. Louisiana, with Peckham writing the decision that a Louisiana law prohibiting the purchase of insurance from an out-of-state company violated the “right to contract.”
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