Oliver Wendell Holmes

by Stephen Budiansky

  Approaching the end of the Court term, Holmes was again looking forward to a summer of reading philosophy. But, he told Laski, “Talking with Brandeis yesterday (a big chap) he drove a harpoon into my midriff by saying that it would be for the good of my soul to devote my next leisure to the study of some domain of fact—suggesting the textile industry.” Holmes diligently ordered a stack of reports and tried to tackle them. “I hope it is good for my soul,” he wrote Mrs. Gray as he plodded through a study of women and child wage earners in the United States in 1912. “It certainly is food for the body as it encourages slumber.” (The following summer, Holmes happily reported, Brandeis gave up on him: “In consideration of my age and moral infirmities he absolved me from facts for the vacation.”)61

  As Holmes was slumbering over his government reports at Beverly Farms that summer of 1919, Laski’s troubles suddenly grew much worse. On September 9, the Boston police went on strike, and several nights of chaos ensued until the state guard restored order, after firing into a mob in South Boston. Police Commissioner Charles Curtis—the husband of Holmes’s friend Ellen Curtis—refused to give in to the strikers’ demand to form a union, and ordered all thirteen hundred officers dismissed. Laski threw himself into the maelstrom. Addressing a huge rally of the wives and mothers of the fired officers, Laski denounced Curtis’s handling of the strike: “We are told the police are deserters. The deserter is Commissioner Curtis, who was guilty at every point of misunderstanding his duties.” This time the letters to Lowell demanding his dismissal from Harvard became a torrent.62

  Holmes was only vaguely aware of just how serious the situation had become for Laski; he wrote him on October 26, “I infer that you have had trouble, I hope not serious, because of your criticism of Curtis.” But he drew a direct connection from Laski’s and Frankfurter’s run-ins with intolerance to the questions of freedom of speech that were very much on his mind—owing to a case that was about to complete his transformation as the Court’s foremost champion of the First Amendment. “I fear we have less freedom of speech here than they have in England,” he wrote to Laski in that same letter. “Little as I believe in it as a theory I hope I would die for it.”63

  JUST FIVE DAYS before, the Court had heard argument in Abrams v. U.S. Seven anarchists, all Russian Jews, had been arrested for distributing leaflets in English and Yiddish denouncing America’s intervention in Russia in aid of the forces battling the Bolshevist government. In one of their pamphlets they called on American arms factory workers to refuse to assist in the crushing of “the Russian worker.” On that basis, five of the defendants were convicted of violating the Espionage Act and given sentences of up to twenty years in prison.

  This time, Holmes and Brandeis announced in conference that they planned to dissent. A few days before the Court’s decision was delivered on November 10, 1919, Holmes’s colleagues McKenna, Pitney, and Van Devanter appeared at the doorstep of 1720 Eye Street. With Mrs. Holmes joining them in the study, they urged him politely but in no uncertain terms not to go through with his planned dissent: given Holmes’s great reputation and military record, they told him, it would do great harm that he perhaps was unaware of. They suggested that—under Brandeis’s influence—he was taking a “quixotic” view of the case. Fanny indicated she agreed with them. Everything was cordial, but Holmes made clear his mind was made up.64

  Four of the defendants in the Abrams case

  Holmes would always insist that his dissent in Abrams was completely consistent with his earlier opinions in Schenck and Debs; it was merely a matter of where to draw the line.65 But no one hearing the ringing words he read out in Court that day would have agreed. Holmes set forth a completely new rationale for the protection of speech that went beyond his “clear and present danger” test, and which embraced fully Hand’s pragmatic rationale: that only when competing ideas are heard can they be tested.

  He began by making a point of showing up the absurdity of the danger the government alleged by quoting in full the text of the offending leaflets. And then in words that no one but Holmes could have written, he went on,

  In this case, sentences of twenty years’ imprisonment have been imposed for the publishing of two leaflets that I believe the defendants had as much right to publish as the Government has to publish the Constitution of the United States now vainly invoked by them. Even if I am technically wrong, and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper, I will add, even if what I think the necessary intent were shown, the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer not for what the indictment alleges, but for the creed that they avow—a creed that I believe to be the creed of ignorance and immaturity when honestly held, as I see no reason to doubt that it was held here, but which, although made the subject of examination at the trial, no one has a right even to consider in dealing with the charges before the Court.

  Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power, and want a certain result with all your heart, you naturally express your wishes in law, and sweep away all opposition. . . . But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year, if not every day, we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system, I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country. I wholly disagree with the argument of the Government that the First Amendment left the common law as to seditious libel in force. History seems to me against the notion. I had conceived that the United States, through many years, had shown its repentance for the Sedition Act of 1798, by repaying fines that it imposed. Only the emergency that makes it immediately dangerous to leave the correction of evil counsels to time warrants making any exception to the sweeping command, “Congress shall make no law . . . abridging the freedom of speech.” Of course, I am speaking only of expressions of opinion and exhortations, which were all that were uttered here, but I regret that I cannot put into more impressive words my belief that, in their conviction upon this indictment, the defendants were deprived of their rights under the Constitution of the United States.

  Holmes almost never quoted the text of the Constitution in his opinions; he had never before spoken of individuals’ rights under the Constitution; he had never before so clearly rejected Blackstone’s and Parker’s view that the First Amendment merely put in writing the existing English common law on prior restraints. In introducing the notion of the free trade in ideas, he laid the foundation of the single most powerful and enduring rationale for the protection of free speech, one that would be cited repeatedly in future Supreme Court decisions.

  Something had aroused him to the core, and that something was not only the reasoned persuasion of Hand and Chafee, but the vivid example of what intolerance had done to Frankfurter, Laski, and his other friends in the red-baiting attacks they had endured.

  Holmes rarely admitted he ever changed his mind, but when Chafee asked him a few years later how he had developed the clear-and-present-danger test and come to accept that the First Amendment embraced more than the common law prohibition against prior restraints, he acknowledged that Abrams and the other Espionage Act cases had forced him to rethink the assumptions he had expressed in P
atterson. The law of attempt that he had devoted much thought to in Massachusetts had been one source of ideas. But also, “the later cases (and probably you—I do not remember exactly) had taught me that in the earlier Patterson case . . . I had taken Blackstone and Parker of Mass. as well founded, wrongly. I simply was ignorant.”66

  Laski, Lippmann, Pound, Croly, Frankfurter, Hand, and other friends all sent their praise of his “glorious opinion”; conservative lawyers were almost beside themselves, denouncing what Holmes had written as “a positive menace to society.” Holmes’s old friend John Wigmore of the Northwestern University Law School, who had invited Holmes back in 1902 to dedicate the school and had often praised Holmes’s decisions, wrote a sneering diatribe in the Illinois Law Review. Mocking the words of his dissent, Wigmore attacked Holmes for his “obtuse indifference to the vital issues at stake,” accusing him of protecting not freedom of speech, but “Freedom of Thuggery.”67

  At Harvard, both Laski and Chafee continued to come in for attacks from conservatives for their stands for free speech, too. Both were hauled before committees to examine their political views and scholarly bona fides. (Chafee was accused of “deliberate falsehoods” in his articles, but by a vote of six to five the committee declined to recommend his dismissal.) Laski laughed off his inquisition, but a month later, in January 1920, he was the victim of one of the ugliest incidents in Harvard’s history. The entire issue of the Harvard Lampoon, the undergraduate humor magazine, was devoted to a personal, humiliating, and in places crudely anti-Semitic character attack on him. Sixteen pages of poems, parodies, drawings, and caricatures mocked his physique, his Jewishness (“Oi Gewalt! I was delicate”), his politics (“from the firstski to the Laski he’s a Red!”), even his hat. Parodied as “Professor Moses Smartelickoff,” he was portrayed as an egotistical deadbeat, a coward and shirker, and a lecherous ogler of the Radcliffe girls. The magazine concluded with the wish that “the next Soviet Ark that sailed” might “transport this pseudo-instructor from the United States and from Cambridge.”68

  When Holmes heard about it he was disgusted, he told Frankfurter, “that so serious a scholar and thinker as he should be subject to the trampling of swine.” He was particularly incensed that the Boston Evening Transcript had joined the attack on Laski with a “dirty” editorial congratulating the students for showing that Laski’s radical utterances did not reflect the feelings of the august university. Laski tried to make light even of this, writing to Lowell to ask that the Lampoon’s editors not be disciplined. Brandeis sent an encouraging word: “I trust you and Frida are not too much concerned about the Lampoon episode. It is really a great compliment, and has done good service to the cause of freedom.” But it was the last straw. In March, Laski wrote Holmes that he had accepted a position at the London School of Economics. “You will know what I mean when I say that my love for you and Felix is the one thing that holds me back.”69

  Caricature and parodies of Laski from the Harvard Lampoon, January 16, 1920

  Holmes replied instantly, “Your decision sounds right to me.”

  But oh, my dear lad, I shall miss you sadly. There is no other man I should miss so much. Your intellectual companionship, your suggestiveness, your encouragement and affection have enriched life to me very greatly and it will be hard not to look forward to seeing you in bodily presence. However, I shall get your letters and that will be much.70

  CHAPTER 15

  Taft’s Court

  Returning home one January afternoon following the justices’ weekly Saturday conference, Holmes was giving Brandeis his familiar speech about how no rearrangement of property could address the real sources of social discontent, that cutting off “the luxuries of the few”—even from the “rotten second generation that has no idea of responsibility”—would make no appreciable difference in the material lot of “the crowd,” that the passion for economic equality was merely “idealizing envy.”1

  Brandeis replied from his deepest wells of moral indignation. Growing “really eloquent on the evils of the present organization of society,” as Holmes described it all to Laski afterward, Brandeis dismissed Holmes’s thinking as “superficial.” He told him his observations did not even touch the real evil, which had nothing to do with luxuries or necessities, but power. “He was fierce and fine,” Holmes said, describing men he knew who did not dare say what they thought because of the economic control other men held over them. Brandeis told Holmes that in his sheltered existence he knew nothing about the realities of life that people involved in the affairs of the world had seen firsthand.2

  “He bullies me a little on that from time to time,” Holmes said. But he took it all in good part, and never stopped telling friends what a “great comfort” Brandeis was to him on the Court. And for all his private comments about taking satisfaction in upholding “imbecile” statutes—“If my fellow citizens want to go to Hell I will help them. It’s my job,” he once remarked to Laski—his written opinions in labor cases, as in Massachusetts, consistently showed sympathy for and understanding of the inherently unequal power between employer and employee.3

  At the very end of the 1918–19 term the Court had upheld, by 5–4, Arizona’s worker’s compensation law. McReynolds in his dissent hysterically warned that to impose financial liability upon an employer for accidents that occurred without fault on his part was “revolutionary and leads straight towards destruction of our well-tried and successful system of government.”4

  Holmes had been assigned the majority opinion, but lost Day’s vote when he made the point that there were many instances in the common law where conduct was punished without moral fault, including the criminal law and the master-servant rule—one of those generalities of his that made his fellow justices nervous for their future implications. Pitney ended up rescuing the majority, while Holmes’s opinion became a separate concurrence.5

  But the more important lines in Holmes’s opinion were those pointing out that social insurance schemes like worker’s compensation really were nothing more than a way to have society pay for what it gets: “It is reasonable that the public should pay the whole cost of producing what it wants, and a part of that cost is the pain and mutilation incident to production. By throwing that loss upon the employer in the first instance, we throw it upon the public in the long run, and that is just.”6

  His attitude toward private philanthropy was marked by the same mix of coldly rational disdain in the abstract, and human sensitivity in the specific. He made only the most perfunctory annual charitable contributions, to the Community Chest, the state firemen’s association, and like organizations. Only after being “importuned” by his secretary Tommy Corcoran did Holmes come up with a $100 donation to the Harvard Law School fund. During the First World War he had put all the money he could spare into Liberty bonds; but that was “duty,” he said, not philanthropy.7

  He was especially scornful of the kinds of causes and cultural institutions whose support had so filled old Boston with its sense of virtue. He had read Malthus for the first time in 1914 and was thoroughly convinced by his argument that in a world of finite resources, all utopian schemes ran smack up against the inexorable consequences of unbridled population growth. “Being a devout Malthusian I believe that all social improvements . . . are exhausted by propagating up to the dead line,” he said.8 By the same token, social investment came only at the cost of investment in other useful economic activity. In an unpublished passage in a letter to Laski, he related,

  And oh how I did rile my ex-sister in law [Mrs. Walter Scott Fitz, the remarried widow of his brother Edward], by saying that great gifts to public purposes (like Carnegie libraries) were prima facie wrong—and tried to make her see that always there is detriment by wh. the benefit must be paid for—so that one must question very seriously before doing such things. She is rich but thinks no farther than that she is giving from her superfluity—and said “I shant tell you the nice things I’ve been doing for the Art Museum.” I answered “Don
t” and bid her adieu.9

  And yet he was always ready to give away hundreds of dollars to help friends or acquaintances. His secretary Augustin Derby related how the cabman who drove Holmes every day to the Court in his early years in Washington, before he had engaged Charlie Buckley as his regular driver, once came to see the justice and explained that his horse had died, and asked if he could borrow $150 to buy a new horse. With great indignation, Holmes sternly replied, “I am not in the business of money lending.” Then, with an abrupt change of expression, “I will give you $150.” He helped subsidize the sabbatical of the young philosopher Morris Cohen, whose ideas had impressed him, and told Frankfurter that if a plan materialized for his Chinese friend John Wu to come to Harvard Law School as a visiting lecturer he would provide $500, “but that is strictly between ourselves and not to be hinted to him or anyone else.”10

  With the failure of the Bull Moose campaign, many of Holmes’s progressive friends including Frankfurter and Brandeis had moved to the Democratic Party, but Holmes never lost his lifetime Republican allegiances. He had never been very impressed by the Democrat Wilson, and after returning from one garden party at the Wilson White House, he wrote Einstein, “I think the average democratic politician is even a more odious type than the inferior of republican stripe.”11

  Four days before his eightieth birthday in March 1921, he sat through the inauguration of the new Republican president, Warren Harding, and reported himself equally unimpressed. The inauguration was the “only public show” the Court was expected to attend, and as Holmes always gruffly observed, “Inaugurations are great on killing off old men, as we have to sit out doors in raw weather.” This one came off “in less time and ennui than usual,” but the new president, Holmes reported to his irritation, “used ‘sensed’ as a verb or participle three times,” as well as some other words “that made me shudder.” “I fear that he is a pumpkin not a cantaloupe,” he told Mrs. Gray.12