Oliver Wendell Holmes

by Stephen Budiansky

  As the legal historian Bernard Schwartz wrote, “Allgeyer did more than enshrine liberty of contract in the constitutional pantheon. It made due process dominant as the doctrine virtually immunizing economic activity from regulation deemed contrary to the laissez-faire philosophy of the day.”21 And so it would be when Holmes faced the first major case of his third full year on the Court.

  IN 1895, the New York State legislature passed a law regulating sanitation and working conditions in bakeries. At the turn of the century about 90 percent of commercial bakeries in New York were located in the basements of tenement buildings. These were about the worst possible places to work, much less prepare food. Floors and walls were usually nothing more than packed dirt, leaking sewer pipes fouled the air, ventilation was nonexistent, lighting minimal. Profit margins were low in the baking industry, so owners often employed child labor to keep down costs. The work was long and hard, often going late into the night and beginning in the predawn to be ready for customers on their way to work.

  The New York statute, modeled on a British law, barred workers from sleeping in the bake room, set minimum sanitary standards, and limited work to ten hours a day and sixty hours per week. An upstate bakery owner, Joseph Lochner, who had been fined for exceeding the ten-hour limit for his employees, decided to fight the law. He lost his initial appeals in state and federal court, but was determined to go all the way to the U.S. Supreme Court.

  New York basement bakery at the turn of the twentieth century

  On February 23, 1905, the justices heard oral arguments in the case. Eight weeks later Justice Peckham delivered the Court’s 5–4 decision striking down the law. It was a pure expression of the kind of reasoning from abstract propositions that Holmes had always scorned, going back to The Common Law. The Court had previously upheld a Utah law limiting workers in underground mines to eight hours a day, accepting that as a legitimate exercise of the state’s “police powers” to protect public health and safety, though warning that “the police power cannot be put forward as an excuse for oppressive and unjust legislation.”22 In Lochner v. New York, Peckham held that no such justification applied to bakers: “Clean and wholesome bread does not depend upon whether the baker works but ten hours per day”; the law was rather “an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best.” Were the Court to uphold the New York law, Peckham ominously warned, “no trade, no occupation, no mode of earning one’s living could escape this all-pervading power.”

  Both Harlan and Holmes wrote dissents. Harlan’s is forgotten; Holmes’s is one of the most famous judicial opinions of all time, known to and studied by every law student to this day.

  Holmes’s views about judicial deference to the legislature closely followed Thayer’s reasoning. He once offered Laski his own version of Thayer’s “beyond reasonable doubt” test, opining that a court should never invalidate a statute “unless it makes us puke.”23 But Holmes went beyond Thayer’s ideas in two important respects. One was that his view was based not merely on acceding to the will of the people, but was rooted fundamentally in his skepticism, and even his ironic philosophical approach to life itself.

  As Richard Posner observed of Holmes, “He was a wit, and wit implies a sense of incongruity, including the incongruity between one’s pretensions and one’s achievements. If you do not take yourself very seriously you are unlikely to fool yourself into thinking that you have all the answers. A judge who, like Holmes, does not think he has all the answers is less likely to challenge the decisions of the other branches of government than a know-it-all judge.”24 In his willingness to uphold legislation even when he disagreed with it, Holmes was not just saying that he thought it his duty to accept the dominant opinion of society; he was also saying that his—or anyone’s—opinions might be wrong, and that the only way to find out was to allow the states and Congress room to experiment.

  The other factor behind Holmes’s belief in judicial restraint was his realism—his insistence that a judge had a duty to examine the actual operation of a law in the real world rather than retreat to legalistic formulas. As Holmes had argued about the common law, assertions of basic principle do not get one very far: almost all legal decisions come down to weighing competing and equally valid claims of rights and interests, and drawing a line between them. That was even more so when it came to the broad, vaguely worded precepts of the Constitution. A judge who retreated to “the Constitution made me do it” to reach his conclusion, without considering the purpose behind legislation or the balancing of social interests at stake, was more likely to impose his own unarticulated prejudices than one who took the trouble to understand and assess the “felt necessities of the time,” as he had said in The Common Law. Or, as he told Alice Stopford Green a few years later, “I took occasion at luncheon to define constitutional law to my brethren as the prejudices of nine old pedagogues read into an instrument that did not contain them, which I hope gave pain.”25

  Holmes’s dissent in Lochner was extraordinarily brief, barely six hundred words long; it was completely free from legal jargon; it was, in Posner’s words, a “rhetorical masterpiece” that violated every rule of a “good” judicial opinion to become “merely the greatest judicial opinion of the last hundred years.”26

  I regret sincerely that I am unable to agree with the judgment in this case and that I think it my duty to express my dissent.

  This case is decided upon an economic theory which a large part of the country does not entertain. If it were a question whether I agreed with that theory, I should desire to study it further and long before making up my mind. But I do not conceive that to be my duty, because I strongly believe that my agreement or disagreement has nothing to do with the right of a majority to embody their opinions in law. It is settled by various decisions of this court that state constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries. The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not. The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics. The other day, we sustained the Massachusetts vaccination law. United States and state statutes and decisions cutting down the liberty to contract by way of combination are familiar to this court. Two years ago, we upheld the prohibition of sales of stock on margins or for future delivery in the constitution of California. The decision sustaining an eight hour law for miners is still recent. Some of these laws embody convictions or prejudices which judges are likely to share. Some may not. But a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire.

  It is made for people of fundamentally differing views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States.

  General propositions do not decide concrete cases. The decision will depend on a judgment or intuition more subtle than any articulate major premise. But I think that the proposition just stated, if it is accepted, will carry us far toward the end. Every opinion tends to become a law. I think that the word liberty in the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion, unless it can be said that a rational and fair man necessarily would admit that the statute proposed would infringe fundamental principles as they have been understood
by the traditions of our people and our law. It does not need research to show that no such sweeping condemnation can be passed upon the statute before us. A reasonable man might think it a proper measure on the score of health. Men whom I certainly could not pronounce unreasonable would uphold it as a first instalment of a general regulation of the hours of work. Whether in the latter aspect it would be open to the charge of inequality I think it unnecessary to discuss.27

  Herbert Spencer’s Social Statics was the bible of laissez-faire economics, and Holmes mentioned to several correspondents how satisfied he was to get in that dig at his fellow justices.

  WHEN HE WAS able to write the opinion for the Court in other cases that ran up against the same question of liberty of contract, but where the majority was willing to grant that the circumstances fell within one of the “police powers” exceptions to its normal hostility to social legislation, Holmes never missed the chance to try to slip in the more general arguments he had made in Lochner, and fire off another broadside against the Court’s use, or rather misuse as he saw it, of the Fourteenth Amendment to void state legislation.

  Upholding a Texas law that fined railroads for allowing noxious weeds to grow in their rights of way, Holmes, writing for the Court, rejected the claim that this violated the Fourteenth Amendment’s guarantee of equal protection of the laws, and worked in at the end of the very brief opinion an admonition: “Great constitutional provisions must be administered with caution. Some play must be allowed for the joints of the machine, and it must be remembered that legislatures are ultimate guardians of the liberties and welfare of the people in quite as great a degree as the courts.”28

  The last point was also one of Thayer’s central premises in counseling judicial restraint: even when it was unavoidable for judges to hold laws unconstitutional, he had emphasized, it was nonetheless an evil—because “the people thus lose the political experience, and the moral education and stimulus that come from fighting the question out in the ordinary way, and correcting their own errors. . . . Under no system can the power of courts go far to save people from ruin.”29

  Just two weeks before Lochner, the Court rejected by 6–2 a challenge to a Kentucky law that assessed property owners for the paving of adjacent roadways. A railroad had objected to paying the assessment, arguing that it gained no benefit from the paving of roads next to its rights of way. Holmes again seized the chance; in his opinion for the Court he admonished that “it is important for this Court to avoid extraction from the very general language of the Fourteenth Amendment a system of delusive exactness” to invalidate government powers which were widely accepted at the time the amendment was adopted.30

  In a similar case involving assessments for opening of alleys in the District of Columbia, Holmes wrote, “Constitutional rights, like others, are matters of degree.” Most ordinances restricting the height of buildings would be held as valid under the police power, he noted, though if it were set at five feet it would require compensation under eminent domain. “I took pleasure,” he told his friend John Wu, “in pointing out that a man’s constitutional rights . . . might be a matter of feet and inches.”31

  But more often he found himself, as in Lochner, filing a dissenting opinion by himself, or occasionally joined by one other justice. In a case challenging Kentucky’s tax on out-of-state property owned by a company incorporated within the state, the Court agreed that it was a violation of the Due Process Clause. Holmes was left to write in bafflement, joined by only Chief Justice Fuller, “The result reached by the court probably is a desirable one, but I hardly understand how it can be deduced from the Fourteenth Amendment.”32

  THE CASES THAT really stirred up a political hornet’s nest, more than those involving the Fourteenth Amendment and state legislation, were a series of challenges to federal labor and antitrust laws by businesses hoping to halt the progressive movement in its tracks. The Supreme Court’s implacable hostility to unions and readiness to invalidate laws that touched private business gave them hope that they might be able to achieve in the courts of law what they been unable to in the court of public opinion. And here Holmes found himself facing a barrage of political attacks for his dissenting opinions unlike anything he had ever before experienced.

  During his first two years in office, Roosevelt had vowed to take on the big railroad, oil, and other “trusts” as a central part of his public image as a progressive reformer. At the start of the election year of 1904, a major antitrust case reached the Supreme Court. Previous cases brought under the 1890 Sherman Antitrust Act had taken aim at price-fixing arrangements between competitors in the same market. But Northern Securities v. U.S. was the first time the government sought to break up a monopoly in the interests of competition.

  The Northern Securities Company had been created by J. P. Morgan and the railroad tycoon James J. Hill to consolidate the Great Northern and Northern Pacific railroads. A state law had barred the merger, but Northern Securities was designed to get around that by serving as a “holding company” to take control of the two companies’ stock, a legal maneuver that effectively accomplished the same end, doing away with the competition on the parallel lines the two companies operated from the Midwest to the West Coast.

  On March 14, 1904, a deeply divided Court announced its decision. By 5–4, the Court upheld the federal government’s action to dissolve the company. Holmes delivered one of the two dissenting opinions. He was painfully aware of the political attention the case had drawn, noting at the start of his dissent, “Great cases, like hard cases, make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”

  Awaiting a verdict in the trust cases: New York Times, April 23, 1911

  It was far from Holmes’s clearest or most-well-written opinion, either. But it reflected, fundamentally, his view that while a conspiracy by two competitors to keep a third company from entering the same market might be an illegal restraint of trade, bigness in and of itself was no crime. Economies of scale and the greater efficiencies of concentrated control were an irresistible force driving mergers and combinations. As he remarked later to many of his friends, he thought the Sherman Act “an imbecile statute,” which “aims at making everyone fight but forbidding anyone to be victorious.”33 He thought people who say “damn Rockefeller” were ignoring the fact that Rockefeller and his fellow monopolists had merely recognized ineluctable economic forces better than others. They might as well say “damn God, or the order of the universe.” He told President Taft a few years later, “If they could make a case for putting Rockefeller in prison I should do my part, but if they left it to me I should put up a bronze statue of him.”34

  Holmes’s dissent in Northern Securities did not sit well with the White House. A story that first appeared in print thirty years later had it that on learning of Holmes’s failure to back up the administration, the president scornfully declared that he “could carve out of a banana a Justice with more backbone than that.” That may or may not have actually happened. There were also newspaper stories at the time that a furious Roosevelt had summoned Holmes for a personal dressing-down, which definitely did not happen.35

  But Holmes “heard rumors of wrath” at the White House—no doubt from Henry Adams, who wrote an acquaintance at the time, “Poor Wendell Holmes is the immediate victim. . . . Theodore went wild about it, and openly denounced Holmes in the most forcible terms of his sputtering vocabulary.”36 Holmes himself had been anguished beforehand over how the president would take his dissent. “The case was not without its painful side as it involved going against one’s natural crowd,” he told his lawyer, John Palfrey. “If however his seeming personal regard for us was based on the idea that he had a tool,” he wrote Mrs. Curtis a few days after the decision was announced, “the sooner it is ended the better—we shall see.”37

  Roosevelt made
a point of maintaining an outward show of cordial relations, however, inviting Justice and Mrs. Holmes just a few weeks later with the Lodges to an intimate dinner and musical recital at the White House. He and the president continued to have “charming” talks, and Holmes was somewhat amused at himself by the way he always fell under Roosevelt’s charismatic spell whenever they were together, as much as he now saw through it. “Of course I went off with the glamour that he always leaves,” he wrote Baroness Moncheur after one such session at the White House.38

  Years later Holmes told Pollock,

  It broke up our incipient friendship, however, as he looked on my dissent to the Northern Securities case as a political departure (or, I suspect, more truly, couldn’t forgive anyone who stood in his way). We talked freely later but it never was the same after that, and if he had not been restrained by his friends, I am told that he would have made a fool of himself and would have excluded me from the White House.39

  Roosevelt was too good a politician to break openly with anyone who might still be an ally, but long after his initial anger died away he continued to regard Holmes’s decisions in Northern Securities and other “political” cases as a betrayal, if not of him personally than of the Republican Party. As he told Henry Cabot Lodge in 1906,

  Nothing has been so strongly borne in on me concerning lawyers on the bench as that the nominal politics of a man has nothing to do with his actions on the bench. . . . Holmes should have been an ideal man on the bench. As a matter of fact he has been a bitter disappointment, not because of any one decision but because of his general attitude.40

  Roosevelt was somewhat mollified when Holmes wrote the opinion for the Court in a 1905 case upholding another of the administration’s major antitrust suits, this one targeting the “Beef Trust.” Six large meat packers controlled 45 percent of the nation’s entire beef market, and accounted for 98 percent of the beef purchased at eight principal cattle markets in the Midwest and West. Unlike Northern Securities, Swift & Co. v. U.S. involved a clear case of anticompetitive collusion: the buyers agreed not to bid against one another, blacklisted competitors who did not go along, and occasionally bid up prices for a few days so the market reports would draw large shipments from out- of-state sellers, only to bring the prices back down again.41