Oliver Wendell Holmes

by Stephen Budiansky

  Holmes easily spent twice his salary each month just keeping the household running in the style he enjoyed. Each month he cashed a check for $300 to pay his servants; he paid Buckley $87.50 (later increased to $100.00) twice a month; there were regular bills of $800 a month or more for the food consumed by the Holmeses, their guests, and their servants. With all their other household bills—flowers, laundry, coal, ice, electricity, gas, phone, repairs, maintenance—their expenses ran well over $2,000 a month, at a time when the average annual household income in America was less than half that.14

  Until Prohibition began in 1920—and even after, because Holmes had put in a large stock of champagne, and the law did not forbid private consumption, only the manufacture, importation, and sale of liquor—he always enjoyed “the fizzly water,” as he called it. All of the provisions for their ample meals came from the fancy shops patronized by fashionable Washington—Magruder’s grocery, right across Connecticut Avenue; Rauscher’s caterers at Connecticut and L Street, which regularly supplied ice cream, cakes, rolls, and brioche to the house; the Marlborough Market, for meats, poultry, fish, game, hothouse fruits; and the Chevy Chase Dairy, which delivered a daily stream of cream, milk, butter, and eggs. And there were the indispensable orders to S. S. Pierce not only for Holmes’s regular boxes of cigars but other luxury items he and Fanny missed from the famous Boston purveyor, including marmalade, anchovy paste, and candies.

  As Holmes once remarked thoughtfully to Alger Hiss as they were enjoying one of the usual very good lunches at 1720 Eye Street, “If they put all the cattle and sheep that I’ve eaten in my life in boxcars, it would be an awfully long train.” After Holmes’s death, his last secretary, James Rowe, and the household staff that stayed on to look after the house had gone on ordering food as usual until John Palfrey, as executor of Holmes’s estate, came down from Boston and ordered Rowe to start getting their groceries from the local supermarket. The food bill dropped to a third of what it had been.15

  HOLMES WAS AN exception among the justices in employing a secretary. In 1886 Congress had provided each of the justices an allowance of $2,000 a year for a “stenographic assistant.” Holmes’s predecessor Justice Horace Gray decided to use the money instead to hire a young lawyer who could provide him assistance with legal research. He had his brother John Chipman Gray select a top graduating student from Harvard Law School each year, and, as he conceived the position, it was as much an apprenticeship as assistant. Gray liked to “do his thinking aloud,” recalled one of his clerks, and would debate his cases with his young charges; as preparation he would often ask them to write their own draft opinion. The drafts invariably ended up in the trashcan, but the experience was heady and invaluable. One of Gray’s former clerks remembered his amazement at how the justice “would patiently and courteously listen to the crudest deliverances of youth fresh from the Law School.”16

  None of the other justices followed Gray’s example, and except for Holmes and Brandeis (and White, who paid for a legal secretary out of his own pocket) none would employ a legal assistant until Congress in 1919 appropriated funds to provide the justices with both a “stenographic clerk” and a more highly paid “law clerk,” at $3,600 a year.17

  Holmes was not sure he would know what to do with a secretary. He certainly had no use for a stenographer, since he wrote his decisions himself in longhand, and he knew the law so thoroughly he had no need to have precedents looked up to figure out how to decide a case. There were many more letters needing attention than he had to deal with in the past “that a secretary might answer, if I had one,” he admitted to Mrs. Codman shortly after arriving in Washington. “But I have not the habit and tremble on the brink. I don’t quite see what a secretary could do for me in the legal way, as my mode of writing is to get into a kind of frenzy when I should not want anyone bothering round and then the thing is done.”18

  The first year he ended up hiring a local man who had applied to him for the position, Charles K. Poe; Holmes said he had taken him on “because he wanted to study law and had no other chance.” But when Poe left at the end of the 1905–6 term, he decided to revive Justice Gray’s practice of selecting a Harvard Law graduate, and he wrote Nina Gray to ask if her husband might look out for a secretary for him, as he had for his half brother:

  I presume that we should want the same kind of man—presentable, clever, not unwilling or unable to make out my checks for me at the beginning of the month, etc. and up in the latest fashions of the law school law. I think it is rather a good thing to have the place regarded as a sort of yearly prize in the law school—if I do not misappreciate.19

  They all quickly discovered what his first secretary from Harvard, Augustin Derby, observed when he took up his duties: Holmes really did not need a secretary. What the justice wanted was a young companion to accompany him on his walks, represent him and be “a contribution to society” around Washington, and handle confidential personal matters like keeping his checkbook, making out his tax returns, and periodically going to his safe deposit box at Riggs National Bank, a block from the White House, and cutting off the coupons of his maturing bonds.20

  The legal duties were at best a formality. “Don’t bother about preparations for coming here,” Holmes assured one of those selected for the job, telling him not even to worry about reading the reports of the recent opinions of the Court: “I don’t regard it as necessary as a qualification.” The first task he always assigned his new secretary, when he arrived as instructed at precisely 11 a.m. on the Friday before the Court began its term the first Monday of October, was to unpack and sort out the large “cube” of books and pamphlets that had accumulated over the summer.21

  During the year Holmes sometimes had his secretary read briefs, motion papers, and petitions and prepare summaries of them, but even that was more an exercise than real work: “Perhaps he thought that he had given legal assistance; but the Justice read all the briefs and papers himself,” Derby noted. “He never asked me to find the law. He knew the law.” The only substantive contribution the secretaries were asked to make to Holmes’s opinions was to find citations that backed up his points, preferably from his own previous decisions. “Please embellish this with citations from my favorite author,” Holmes would say as he handed over his completed opinion to his secretary.22

  He would sometimes read a finished opinion aloud to the secretary, “not soliciting our comment,” Chauncey Belknap said, “but rather, it seemed, to let his ear test the cadence of the sentence.” Belknap wrote in his diary a month and a half into his year with Holmes that even though the justice freely discussed his decisions “as if I were on an equal plane of learning and powers,” he could not ever imagine screwing up his courage to offer his own views. “Even if there were doubts in my mind, I should have to get myself into the state of mind of a court overruling a jury before venturing to differ.”23

  Harvey Bundy did once cautiously venture to make a suggestion. “I think, Sir, that the opinion is splendid, except for the last paragraph which seems to me not to be quite clear,” he said.

  “What the hell do you mean—not clear? Give it to me.” Holmes reread the offending phrase. “Well, if you don’t understand it I suppose there will be some other damn fool who won’t, so I’d better change it.”24

  Holmes once explained that he liked to have a new secretary each year so he could continue to draw on his fund of favorite stories without being accused of repeating himself. “The Judge liked to walk with his secretary and expound his philosophical ideas to a ready audience—if you will, a quite willingly captive audience,” Bundy recalled. Their usual walk in the afternoons when he returned from the Court at about five o’clock was a three-quarters-of-an-hour loop around the immediate neighborhood—up to Connecticut and Seventeenth Street, or around the White House—though sometimes they would make it to Rock Creek Park. On days the Court was not sitting, he would often take his secretary along for a drive in the morning to one of his favorite spots: Fort Stev
ens, the Soldiers’ Home, the unknown soldier monument at Arlington Cemetery, the zoo.25

  In fact, there was “more walking than law,” Barton Leach remembered. The topics of Holmes’s talk on these occasions was as free-ranging as his letters; there was nothing that did not interest him, Donald Hiss noted, “except athletics.”26 The Civil War, literature, the personalities of his fellow justices, people and life in general were all likely to be covered over the course of the year.

  Holmes called his secretaries “Sonny” when he was pleased with them; he would say, “Don’t be an idiot, boy,” when he was not. Donald Hiss vividly recalled Holmes’s efforts to drill his philosophy of life into him. “Sonny,” he suddenly asked him one day, “if you were at war and had your rifle raised and brought into your sights an enemy figure and God tapped you on the shoulder and said, ‘If you let that man live, he’ll be a great doctor some day,’ what would you do?” Hiss replied it was a difficult question and he did not have a ready answer. “Don’t be an idiot, boy,” Holmes shot back. “He’s the enemy and you’d shoot him of course. You’re not God, you are merely a soldier fighting a war.”27

  Francis Biddle thought Holmes enjoyed “the sense of resistance that youth sometimes gives to age,” but there were limits. Donald Hiss once began challenging Holmes to explain what he meant when he said that J. Pierpont Morgan was “an intellectual giant.” After enduring several minutes of Hiss’s persistent questioning, Holmes turned to him and said, “Sonny, I am not an anvil on which you can beat out your impressions of life,” at which Hiss dissolved into laughter and abandoned his interrogation.28

  But what Holmes clearly liked most was simply the contact with the young, the feeling he was not losing touch with “the latest fashions” of the law, as he had put it, and the connections his secretary provided to the younger set in Washington. At the start of the year, Holmes told Belknap that one of his duties, at least as important as any legal work, was to make sure that “all of the liveliest gals in town turned up” for his weekly Monday afternoon reception. “As there was not one of them who didn’t regard an hour with the Holmeses as about the best fun there was to be had in Washington, this part of the job gave me no trouble,” Belknap noted. Some of the young ladies would sit on the floor, literally at the justice’s feet, listening to his talk.29

  Holmes’s one rule for his secretary was that the man chosen for the position had to be single. As he told Frankfurter, who took over the job of selecting Holmes’s secretaries after Gray’s death, “It is true that the work is not very much but if baby has the megrims, papa won’t have the freedom of mind and spirit that I like to find.”30

  But the four who violated the rule—Harvey Bundy, W. Barton Leach, Arthur E. Sutherland Jr., and Alger Hiss—were all promptly forgiven. Bundy was engaged, though not yet married, when he arrived in Washington and Holmes was “quite upset” to learn the fact. But at some point during the year Fanny said to Bundy, “Why don’t you two get married,” and they did. Derby later heard the story of one of the miscreant secretaries: the justice gave him a thorough dressing down for his outrageous behavior, then said, “Here is three hundred dollars, young man,” and handed him a check.31

  When Hiss got married halfway through his year, Frankfurter was worried enough that he sent Brandeis an urgent telegram asking him to go over to 1720 Eye Street at once and try to smooth out the situation. Hiss confessed to Frankfurter that he had only learned from a law school friend, about ten hours before the wedding, of the justice’s rule. But when Brandeis arrived on the scene he found Holmes “in the best of form, rollicking, playful in spirit & entirely without worry of any kind. I concluded he needed no assurance about Hiss.” Holmes had shown no annoyance, giving Hiss his blessing the evening of the ceremony and his “welcome into the brotherhood” the next morning, and invited the newlyweds to lunch a few days later. 32

  But still Holmes did not drop the general rule against his secretaries being married or engaged, and reiterated to Frankfurter that it would be best to make sure the man chosen for the job understood: he wanted “a free man” who could be a part of Washington society and bring back the latest quips, as well as the “liveliest gals.”33

  The job was so undemanding and the role expected of them such an abrupt change from the intense three years they had just spent at Harvard Law School that it was a bit bewildering. “The discouraging feature of the job is that they are both so nice to me that I wonder at times whether I am secretary, guest, or prodigal son,” John Lockwood wrote to Frankfurter a month into it. “I have a suspicion that I shall never have another boss whom it will be so difficult to convince that I should be allowed to help him—nor one whom I shall be so anxious to help.” Belknap remembered Mrs. Holmes informing him at the start of his year—“with mischief in her eye”—“that I would usually find her right downstairs, and if the Justice did not behave himself or did not treat me properly I must be sure to let her know immediately.”34

  A month later Belknap wrote in his diary, “I am the master of a magnificent leisure.” During his year, Leach found himself filling most of his hours while the Court was sitting playing golf or reading. Bundy spent so much time at the Chevy Chase Club improving his tennis game that he won the club championship his year.35

  For a bachelor in that vanished world of Washington society in the first decades of the twentieth century, there was no lack of dinners, outings, dances, and debutante parties, which added to the sense Holmes’s secretaries had of the slight unreality of their year with the justice. Washington was “terribly short of men,” and society hostesses were ever in need of extra male guests to fill out their tables, Bundy recalled; there was always “a blizzard of invitations” to grand houses and embassies for dinners, with “six butlers and three kinds of wine.” Francis Biddle idled away his spare time with all-day riding parties on Sundays in Rock Creek Park, lunches at the Metropolitan Club with cosmopolitan acquaintances he had made among the young staff members of the British and Russian embassies, and lavish picnics put on by a wealthy retired Army colonel and his wife who liked young people, featuring “a fabulous lunch from picnic baskets unpacked by solemn men servants, and all the champagne we could drink.”36

  All sorts of celebrities streamed in and out of the colonel’s house, and Biddle was able to score one coup that greatly pleased the justice when one Sunday afternoon he met Maggie Teyte there. She was a twenty-three-year-old soprano who was making a sensation in the opera world, and she asked Biddle if he would take her to Court the next day, when the justices announced their opinions. In the solemn hush of the courtroom she suddenly leaned over and whispered in Biddle’s ear that she felt an uncontrollable urge to sing—perhaps the Jewel Song from Faust—and would that be all right? She came to tea that afternoon and related the story, causing Holmes to shout with laughter when she explained that the only thing that stopped her was the look of complete horror on his secretary’s face.37

  Although the job may not have been much of a legal apprenticeship, one after another of his secretaries called their year with Holmes the greatest of their lives. Long before he became a household name, Holmes was a figure of renown to the law students at Harvard—“I believe the casebooks we studied at the Harvard Law School contained more opinions by Holmes than by any other judge, living or dead,” said Belknap—which gave the feeling of “being admitted to a charmed circle” for the young graduates selected for the job.38

  But what really made the year magical in their memories was what Biddle called Holmes’s “spontaneous unforced sympathy” for the young—and what Alger Hiss described as the aura of Holmes’s “moral and physical courage, fierce independence of spirit” and example of duty and personal honor.39 “The intellectual excitement of being with him was just extraordinary,” Hiss recalled a full half century later. “It was probably the greatest intellectual, emotional experience any of us had.” John Lockwood wrote at the end of his year of having had his “budding tastes” educated by the “contagiou
s” affection Holmes had for nature and art—“a tulip tree, a statue, or a group of etchings . . . I feel certain that my eyes see more, that I think in broader channels than I did.” And Horace Chapman Rose sent Holmes a parting tribute in a burst of ingenuous enthusiasm, “You gave me insight into a way of life more perfect than any that I shall know again.”40

  Nearly all of Holmes’s young protégés went on to exceptional careers. Of his thirty secretaries, eleven became founders or partners of prestigious law firms, including his two Jewish secretaries, Lloyd H. Landau and Robert M. Benjamin, in an era when institutionalized anti-Semitism in the legal profession generally closed the door to that possibility; four became law professors at Harvard, W. Barton Leach, Mark DeWolfe Howe, Arthur E. Sutherland Jr., and Augustin Derby, and one, Stanley Morrison, at Stanford; nine held prominent positions in politics and government, including Francis B. Biddle (attorney general), Harvey H. Bundy (assistant secretary of state), James Henry Rowe Jr. (assistant attorney general), H. Chapman Rose (undersecretary of the treasury), Laurence Curtis II (congressman from Massachusetts), Erland F. Fish (president of the Massachusetts Senate), Day Kimball (Supreme Court of Bermuda), and Thomas G. Corcoran (intimate adviser to FDR and drafter of key legislation of the New Deal, including the Federal Housing Act of 1933, the Securities Exchange Act of 1934, and the Fair Labor Standards Act of 1938); and four rose to the top ranks of business and industry, including Irving S. Olds (president of U.S. Steel) and George L. Harrison (president and chairman of the board of RCA).41

  Leach, who had a less happy year than most and who was willing to make some fairly caustic comments in later years about Holmes’s judicial performance, nonetheless concluded the remarks he was asked to deliver when Holmes’s portrait was unveiled at Harvard Law School by observing, “But let there be no doubt about this: Whatever cliché may have been uttered about great men and their valets, Holmes, J. is a hero to his secretaries.”42