Oliver Wendell Holmes

by Stephen Budiansky

  HOLMES’S “BOYS” WERE NOT adopted sons or surrogates for the children he never had, as some of the more romantic portrayals of his life have implied, but they helped fill a void of companionship that he felt acutely as he approached his seventieth year, and the passing years took their inevitable toll on the lives and happiness of his older friends.

  “This year has been full of disaster and death,” he wrote Baroness Moncheur a week before Christmas 1910. That April he had heard from Mrs. Green that his friends the Scotts were having difficulties in their marriage. Leslie as a rising barrister and politician was absorbed in his career, while Ethel “has been overworked and overwrought ever since I have known her,” Holmes wrote back. “I wish that I could help the situation, but I have nothing except an anxious affection for both. . . . They both think nobly about life and yet one feels a kind of despair.”43

  On the Fourth of July, 1910, Chief Justice Fuller died at his summer home in Sorrento, Maine. Holmes spent four nights on trains traveling to Maine for the funeral, back to Boston, to Chicago for the burial, then again home. “The services at Sorrento moved me through and through,” he wrote to one of Fuller’s old friends the day after arriving back at Beverly Farms on July 11. “It was a beautiful day, and there was no false note. The coffin, spread with a coverlet of flowers, was put on a buckboard to go from the house to the church; the birds were singing; the clergyman, a fine fellow whom I dare say you know, read extremely well; a little choir of four young men sang touchingly. . . . It is rare indeed for me to find everything so conspire with the natural feeling of the moment.”44

  He confided to Baroness Moncheur that “the Chief died at just the right moment, for during this last term he had begun to show his age in his administrative work, I thought, and I was doubting whether I ought not to speak to his family, as they relied upon me.” But, he added, “He loved me and I shall miss him as long as I sit on the Bench.” Holmes did not read the newspapers as a rule—“superficial, silly things,” he called them—but could not help reading the articles about him or the Court from time to time, and he was cast down to see how much more attention the papers gave to the Johnson-Jeffries heavyweight championship fight that same day than “to a great man dead.”45

  In August, William James died, and Holmes attended the funeral in Cambridge, where he caught a glimpse of Henry James looking “distinguished but far from well.” It was another closing of a door to the past, even if, as he told Baroness Moncheur, “our relations had ceased, practically,” separated not just by distance and time but by mutual irritations that the very closeness of their onetime friendship and intellectual kinship exacerbated over the years.46 James, ever resentful of Holmes’s freedom from the moral earnestness he could never abandon himself, complained in his later years of Holmes’s “childish” exuberance in action for action’s sake; Holmes, equally annoyed at what he called the “amusing humbug” of James’s efforts to reconcile a mechanistic universe with free will, sniped that James was always trying to “sneak in the miraculous at the back door.” In their later years they had mostly seemed to talk past one other, still agreeing at heart but unable to admit it.47

  And then, just before his return to Washington at the end of September, the old first sergeant of his regiment, Gustav Magnitzky, a Prussian Pole “who enlisted on principle shortly after his arrival in this country,” and later was the bookkeeper and general manager of Holmes’s law firm in Boston, died. “There were few men for whom I had so sincere an affection,” he told Ethel Scott.48

  “The familiar faces are nearly all gone now,” he said; driving around Beverly Farms, he found the houses “now inhabited by strangers and ghosts.” But, he remarked of his feelings toward death, “As one grows older one gets like the eels accustomed to being skinned. Indeed the war accustomed me to it when I was young.”49

  FULLER’S DEATH set off the usual political scramble over his replacement. Public speculation strongly favored Justice Charles Evans Hughes for the job. Hughes, who had just been appointed to the Court as an associate justice by President Taft, and not yet even taken his seat, had been all but promised the chief justiceship as a reward for giving up a possible challenge to Taft for the 1912 Republican nomination. But now, abruptly faced with the decision, Taft backpedaled, and after months of “prayerful consideration” and much political consultation, in December 1910 announced his choice of Justice White instead.50

  The political calculus was complex. Though Hughes had been a progressive-minded governor of New York, he had run afoul of TR over a matter of patronage, which neutralized any favors Taft might hope to score with the Roosevelt wing of the Republican Party by elevating him to chief justice. Roosevelt let Taft know he preferred White, as did more conservative Republicans; as a Democrat, White would also automatically command the support of the opposing party in the Senate. When Taft’s choice of a Democrat was announced, the Republican Speaker of the House, Joe Cannon, grumbled that “if Taft were pope he’d want to appoint some Protestants to the College of Cardinals,” but it was a shrewd political move: the Senate approved the nomination in a unanimous voice vote the same day it was sent up.51

  “I suppose Hughes was bitterly disappointed at not getting the place as everyone expected that he would—including, I guess, the President up to the evening before the choice was announced,” Holmes wrote to Mrs. Green. “White is a bigger man and I am glad it fell to him. Hughes has taken it admirably. Poor old Harlan who was the senior and who was skipped is heart broken, I am afraid.” Taft was, too, in his own way. “There is nothing I would have loved more than being chief justice of the United States,” he told his attorney general the day White was confirmed. “I cannot help seeing the irony in the fact that I, who desired the office so much, should now be signing the commission of another man.”52

  Holmes disavowed any ambition in the position, or disappointment that he was not selected; he told Mrs. Gray, who had apparently written a word of consolation when he was passed over,

  My ambitions as you know are internal. An appointment as Chief Justice would do nothing towards satisfying them and I never thought of it for an instant as a possibility for myself. . . . Naturally one’s feeling of attainment goes up and down—as my father used to say self estimates are a stock of fancy goods—sold at auction they don’t bring much. I was feeling down when I felt the touch of your soothing hand.53

  But it all left him “gloomy,” he admitted to Lewis Einstein, and musing about the nature of accomplishment and recognition. “One has a despairing sense that popularity or popular appreciation is to be had only by the sacrifice of ideals.”54 He had been briefly buoyed when Oxford awarded him an honorary degree the summer of the previous year; he made a “flying visit” to England that June, but did not feel he could be away long from Fanny, who had had a long “pulldown” after an operation in May 1908 that kept her hospitalized for several weeks.55

  During the Oxford ceremony, “while the learned Doctor of Laws who presented me was making a Latin speech as to my merits,” he recounted, an undergraduate “sung out from the gallery, ‘Can you translate it, Sir?’ which made me grin.” He was given the opportunity to buy his scarlet doctor of law’s robes, which he briefly considered for the pleasure of horrifying his brethren by appearing in them in the justices’ robing room, but decided that “my evil impulse wasn’t worth 8 guineas.”56

  “Out of the blue” in October 1910 he also was awarded an honorary degree from the University of Berlin, an “encouragement” that “really pleased me,” he told Einstein. But those recognitions had been balanced by the bittersweet pang he felt when White remarked to him that “he didn’t know any man in the country who had so little reputation in proportion to what he had done—I was half pleased, if half sad.”57

  “It all makes me speculate as to what I shall do—keep on or retire—when my 10 years are out if I am still alive and all right on Dec. 8, 1912,” which was when he would be eligible to retire on his full salary, he told Barones
s Moncheur when he wrote her at Christmastime 1910 at the end of that year of “disaster and death.” A. V. Dicey, a British jurist he had known since 1870, remarked when he saw him at his degree ceremony at Oxford that “he would rather have people say why the devil does he than why the devil doesn’t he.” But for now, Holmes was still finding he could do his work with ease—even if that sometimes seemed an omen in itself: “A pen writes best when it is nearly worn out,” he ironically observed.58

  The final disaster of the year was the news from Ireland. Clare Castletown had had a painful operation on her eye that summer, and Holmes received a letter from her in December “which beside speaking with discouragement about ever getting back the sight of one eye, almost casually said that they were reduced to great poverty.” Holmes cautiously asked Canon Sheehan if he knew the details, and the full story slowly emerged. Lord Castletown had sold out all of his purchased land, plunged wildly in foreign investments, and lost everything. Receivers were sent to take charge of the estates at Granston and Doneraile, and Canon Sheehan wrote of hearing the crack of guns all day as the deer herd was shot out and the carcasses sent to the market in London to try to raise what small amount they would bring.59

  The following year, Lord Castletown broke down completely under the strain and was committed to an insane asylum, from where he sent piteous letters to Clare begging to be allowed to return home (“I am perfectly well & as sane as any man in Ireland . . . I give you my word of honor you will have no trouble with me . . . I can do you no harm as I am quite well”). He did come home after several months.60

  Holmes, in the first of his letters to Clare that exists after a decade’s gap, wrote her in the midst of the crisis in the spring of 1912 that he was “extremely glad” she had apparently decided against leaving her husband:

  I can’t but believe it wiser, on selfish grounds, and I also have the notion, for which I have no documentation or definite evidence, that at other moments he has been pretty loyal to you. And altogether magnanimity is your most judicious as well as most beautiful role. It is easy for me to talk, away off here, I know, but I tell you what I believe.61

  His tone was much altered from the passionate outbursts in the wake of their 1898 meeting; he now wrote her just as another old friend. A week later he sent her the news that “many who were known and loved here” had gone down with the Titanic, including Archie Butt, the president’s aide.62

  In the summer of 1913 he made his final trip to England and Ireland. He was again worried about leaving Fanny, and was “very unwilling” to travel without her. A few days before he was to go, he fell hard on his knee at the bottom of the stairs, which left him black and blue (“I beat Turner for colors from there to the sole of my foot”). But as usual in the end he went.63

  The Castletowns had been allowed to retain a life estate in their houses, and he saw them again at Doneraile, and visited Canon Sheehan every day, who “said he was dying but I hoped otherwise,” he wrote to Mrs. Gray. But shortly after his return to Washington he read of the canon’s death on October 5. As a parting gift Sheehan had asked him to pick out a book from his library, and Holmes took a folio of the seventeenth-century Jesuit Francisco Suarez’s work on the philosophy of law, De Legibus.64

  “A beautiful spirit,” he said to Mrs. Green of his departed friend. “I am afraid I should not have talked quite so freely to him!”65

  THE DEATHS OF his old friends gave Holmes even more pleasure in the young. “I . . . perhaps should be lonely but for the young men that seem to like to come in and see me from time to time. I always have one on hand in the form of my secretary, who has to sit and hear my views (if you can hear a view) on law and economics, not to speak of excursions into the cosmos at large,” he told Ethel Scott. Aside from his secretary there was suddenly a new group of young, lively, brilliant, and enthusiastic friends in Washington whose company he found invigorating and encouraging.66

  The most brilliant and enthusiastic was the twenty-eight-year-old Felix Frankfurter, who had burst into Holmes’s life bearing a letter of introduction from John Chipman Gray. Frankfurter was the son of Austrian Jewish immigrants; he had arrived in New York at age eleven not knowing a word of English, but had flourished in New York’s public schools, in part thanks to the tough Irish teacher at P.S. 25 who threatened the other German-speaking students in her class with her fists if she caught them talking German to the new pupil. After graduating from City College, he applied to Harvard Law School with more than a little trepidation, fearing he could not afford it and would not be welcome there. But he found the law school the most “democratic” institution he would ever experience, later saying that he had a “quasi-religious” feeling for the way intrinsic value and ethical considerations permeated everything about the place. He quickly soared to the top of his class, and was selected as an editor of the law review.67

  When he graduated in 1906 he was brushed off in interview after interview with New York law firms, until one finally offered him a job—the first Jew they had ever hired—though one of the partners suggested he change his last name to something less “odd.” Then a phone call changed his life. Manhattan’s U.S. attorney Henry Stimson, a blue-blood patrician who had given up a $20,000 a year position with a Wall Street law firm (equal to $600,000 today) to help advance the progressive agenda of the Roosevelt administration, had asked the deans of the top law schools for recommendations of their best recent graduates. Frankfurter was at the top of the list, and Stimson hired him as a junior assistant. Over the next several years Frankfurter played a lead role in the government’s prosecution of the sugar trust, winning several key convictions in court.68

  When Stimson was named Taft’s secretary of war in June 1911, he brought Frankfurter to Washington with him as law officer for the department’s Bureau of Insular Affairs, overseeing U.S. territories acquired in the Spanish-American War.

  Frankfurter was five foot six, with a babyish face, and by his own telling had come off to his Harvard roommate as “a mamma’s boy” when he arrived with a trunk of clothes that he admitted his mother had packed for him. But he had an unselfconscious love of ideas and people and talk and an optimistic spirit that, Holmes later said, “walked deep into my heart.” If the uncanny ability that Holmes also detected in Frankfurter “of wiggling in wherever he wants to” was self-promoting, it was also perfectly genuine. “Felix has two hundred best friends,” his future wife once remarked. She also said, “Do you know what it’s like to be married to a man who is never tired?”69

  Holmes invited him to lunch, and Frankfurter wrote enthusiastically to Gray immediately afterward, “I came away with the keen relief of having been on Olympus and finding that one’s God did not have clay feet. There is a brilliance and range in the justice’s conversation. . . . But over and above his keen penetration, his contempt for mere words and formula, and his freshness of outlook, give lasting zest and momentum to one’s groping and toiling.”70

  Frankfurter soon became a regular visitor. Holmes later remarked to Frankfurter how struck he was by the “exquisite moral susceptibility” that, he said, seemed to be “the gift of many Jews.” But more than that, Frankfurter cheered him up. “He . . . has the encouraging tone that seems to be a point of conscience with the Jews,” he told Baroness Moncheur. “At all events Felix always is comforting.”71

  “House of Truth,” c. 1913: standing left to right, Denison, Valentine, Frankfurter; seated, Christie

  Frankfurter lived with several other young men near Dupont Circle. The group quickly became the nucleus of a lively social circle, as well as a hotbed of progressive opposition inside the Taft administration. The small, three-story townhouse at 1727 Nineteenth Street where they lived (which still stands) had been rented by Robert G. Valentine, Taft’s commissioner of Indian affairs; when his wife had to return to Boston to obtain medical care for their infant daughter, the forty-year-old Valentine invited several younger friends who shared his liberal views to move into the house and help pay t
he rent and keep him company. Frankfurter was the first, moving in in May 1912, and two other young attorneys soon followed: Winfred T. Denison, an assistant attorney general who had worked with Frankfurter and Stimson in the sugar trust cases, and Loring Christie, who had graduated from Harvard Law three years after Frankfurter and come to Washington to work in Denison’s office.72

  The last to join the household was Lord Eustace Percy, a British diplomat and the seventh son of the Duke of Northumberland. Frankfurter described him as “much more of a dreamer and a mystic than the son of a great landowner,” but he shared the group’s interest in public affairs and social progress. On the floor of the living room the young men once spent four days working out an eight-page plan of reform, which they modestly titled, “A Tentative Social Program.”73

  The justice and Mrs. Holmes became regular visitors to the house, with its conversation-filled dinner parties and five-hour-long Sunday lunches. “How or why I can’t recapture,” Frankfurter said later, “but almost everybody who was interesting in Washington sooner or later passed through that house.” Herbert Hoover; the British ambassador James Bryce, Holmes’s old legal friend; Attorney General James McReynolds; Louis Brandeis, on his many trips to Washington to argue public-interest cases, all dined there, along with artists, newspapermen, writers, and a raft of pretty girls. One night Holmes looked on with fascination as the sculptor Gutzon Borglum sketched on the tablecloth his conception of a memorial to Robert E. Lee and other Confederate heroes that he had a vision of carving out of the solid stone face of a mountainside in Georgia—the plan he would later realize as the monument to presidents on Mount Rushmore.74