Oliver Wendell Holmes

by Stephen Budiansky

  For his eightieth birthday Fanny had arranged another surprise, gathering nearly all of his former secretaries and sneaking them into the dining room through the back entrance of the house via the kitchen. It was a Sunday night, two days before his birthday, and he suspected nothing even when Fanny explained it would be more convenient for the servants if they reversed their usual Sunday practice and lunched out and dined at home, and then persuaded him to dress formally before going downstairs in tribute to his last Sunday “in the 79’s.” When the folding doors to the dining room were opened, “There were 16 or 18 strapping chaps standing around the table,” he told Mrs. Curtis in describing the scene afterward. “Of course I was flabbergasted.” Fanny told him that he had “yelled with joy when they began to pour our champagne of which we had a case or two left.”13

  Two years before he had sent Einstein a bit of doggerel he had composed on his walk while contemplating his approaching birthday,

  I will sit in the seats of the mighty

  If I can, until I am eighty (pronounce ity)

  And what I’ll do then

  In the following ten

  I leave to the Lord God Almighty.14

  But now he gaily announced to all his friends that he had “a new ideal—to try to live to 90, and hereafter seek further fame only as a survivor, impressive to look at in civic processions.” He had been especially buoyed by the publication of his collected writings on the law that Laski had arranged—and that Frankfurter, Lippmann, Croly, and others of his circle of young admirers made sure received multiple praiseful notices. Morris Cohen, writing in the New Republic, called it “an extraordinary book of thoroughly matured human wisdom”; and a second piece in the magazine, by Lord Haldane, the former Lord Chancellor of England, Holmes said nearly overwhelmed him for saying, “Ideas, when great enough, have a penetrative power which extends beyond the boundaries of nations and across oceans.”15

  Learned Hand many years later expressed regret that he and the others had “indulged themselves so much in flattery” of Holmes, and thought it had not always brought out his best side. “As I look back on it, we all did exploit him by playing on his vanity.” And yet Hand took pains to emphasize that it was not so much egotism, as a kind of unsuspecting innocence and guilelessness on Holmes’s part, that made him so susceptible to praise. Hand described it as an “almost childlike simplicity” “that remains the most endearing of his moral qualities.” It never would have crossed Holmes’s mind to manipulate others in that way, so it never occurred to him he was being used by those whose words, he once said, made him feel “I have achieved what I longed to do.”16

  Meanwhile they all reassured him he should not think of resigning. What gave Holmes pause—besides the inevitable apprehensions of undetected senility (“one is told that old men can’t trust their judgment,” he admitted)—was the extraordinary isolation that came with the job. “It is a great place, Judge,” Chief Justice White had said on welcoming John Hessin Clarke, who took Hughes’s place on the Court in 1916. “But we live in a cave.”17

  Still, unless “the loneliness becomes too intolerable,” as he once put it, he intended to keep on as long as he could handle his share of the cases—which he continued to “fire off” as rapidly as ever.18

  WILLIAM HOWARD TAFT hated being president of the United States; but he worshiped the life of the law. “I love judges, and I love courts,” he once said. “They are my ideals, that typify on earth what we shall meet hereafter in heaven under a just God.” When he appointed White chief justice he had secured something close to a promise from White that he would merely be “holding the place” until Taft could be named to the position by a future Republican president. With Harding’s election, the time seemed to have arrived to call in that obligation. White spared him the embarrassment of pressing the matter by dying two months after Harding’s inauguration.19

  Joining the Court for its fall term of 1921, Taft threw himself into the job he had always coveted. Holmes had disliked Taft’s unconcealed ambition for the office and had remarked that he “never saw anything that struck me as more than first rate second rate” about him, but he quickly was won over by the new chief’s zeal for administrative efficiency and his unbounded reserves of good humor. Unlike White, Taft took firm control of the conferences, keeping discussions to the point and cutting off repetitious arguments. One of his first aims was to eliminate the enormous backlog of cases clogging the docket: 343 cases had been carried over from the 1920–21 term, and the average time for a case to be heard was eighteen months. Within a few years the backlog was gone and the time from the filing of an appeal to oral argument was reduced to six months.20

  Taft’s larger ambition was a more sweeping overhaul of the entire federal court system, giving the chief justice administrative authority over federal district judges and reforming the outmoded appeals process that was overwhelming the Supreme Court. The centerpiece of his proposal was to eliminate most of the automatic right of appeal by writ of error, and to give the Supreme Court the power to decide for itself what cases it would accept.

  The Taft Court

  The legal mechanism for this was the writ of certiorari, which traditionally had been used by a higher court to order the records of a lower tribunal brought up to correct a manifest error. But with the passage in 1925 of Taft’s “Judges’ Bill,” after four years of hard lobbying of Congress by the new chief, applications to the Court for certiorari became the almost exclusive avenue of appeal. Routine appeals of cases already decided by a lower appellate court were eliminated in a stroke. As Taft saw it, the Court would now be able to limit its work to cases where the issues between the parties were of “sufficient importance,” owing to the constitutional or national questions they raised, to justify a hearing by the highest court in the land.21

  While substantially reducing the number of decisions the Court had to render, it added a new burden, however, of reviewing hundreds of applications for certiorari each year—only a small fraction of which were approved. (“A certiorari granted is a certiorarity,” Holmes wisecracked. But reading the applications now filled the summer as well as the entire term: “They infest the whole year and make it like a house full of moths,” he complained to Nina Gray.)22

  Taft’s other great passion was for “teamwork,” and like White he wanted to greatly reduce the number of dissents—“a form of egotism” he called them, that “only weaken the prestige of the Court.”23 He never achieved that aim: the percentage of cases decided with dissenting opinions in each of his years as chief justice years varied between 8 and 21 percent, considerably more than the 4 percent average of the White Court, if still far below the record of his successors.24 But the sheer ebullience that Taft brought to the job did much to ease friction among the brethren. “The truth is, that in my present life I don’t remember that I ever was President,” Taft said, and Holmes reported with pleasure that Taft’s infectious good humor and ability to keep “things moving pleasantly” with “a smile or a laugh” was a vast improvement. “We get on very pleasantly with the present Chief Justice, who is not a worryer, or if he is doesn’t show it,” Holmes wrote to Ethel Scott halfway through Taft’s first year.25

  Taft made a point of showing his appreciation for the work of others, tried to assign cases to each of the justices that played to their strengths and particular interests, and often went to great lengths to modify his own draft opinions to meet objections from his fellow justices. Nowhere was his tact more evident than in the gracious way he put aside his past differences with Brandeis. Upon joining the Court, Taft had sent Brandeis a long letter expressing his hope they would work together, and exerted his personal charm to show there were no hard feelings, always offering Brandeis and Holmes a ride home in his car from the Court’s conferences. Brandeis, like Holmes, welcomed Taft’s administrative abilities and found him “a cultivated man,” easy to talk to.26

  McReynolds and McKenna, however, remained as obdurate as ever, and their frac
tious behavior and often sheer incompetence left Taft privately in despair. Aside from his outrageous rudeness, McReynolds was the laziest member of the Court, “always trying to escape work,” Taft complained; on more than one occasion McReynolds airily announced in the middle of the fall term that he would not be attending Court for several days because “an imperious voice has called me out of town,” to go duck hunting on Maryland’s Eastern Shore.27

  McKenna was not only continuing his pointless rivalry with Holmes, but was “the worst and most embarrassing member” of the Court, turning in opinions that missed key points, in one instance actually presenting in conference a draft opinion that decided the case the opposite way from which the judges, McKenna included, had unanimously voted. “He is jealous of Holmes,” Taft confided to his brother in April 1922, and tried to complete his opinions as quickly as Holmes, but “does not get the record straight. . . . He and Holmes had a controversy the other day in conference, in which Holmes kept his temper, and McKenna lost his. I wrote a note to felicitate Holmes on the manner in which he bore himself. So you see we are not without our troubles.”28

  In a case Holmes had decided for a 5–4 majority just before Taft joined the Court, McKenna had written one of his most intemperate dissents yet to a Holmes opinion. Holmes made light of the matter to Baroness Moncheur, telling her that his decision “provoked a cry of despair over the downfall of the Constitution from McKenna, but I guess the old document will survive as it has survived many similar predictions in the past.” But he told Frankfurter that he thought it was “bad form” for McKenna to go after the majority decision rather than simply express his own views of the law.29 The case, Block v. Hirsh, had been brought in challenge to the District of Columbia’s rent-control law, enacted by Congress as a wartime necessity. McKenna had written a virtual diatribe in dissent to Holmes’s opinion affirming the law, sarcastically suggesting it was “safer” and “saner” to “regard the Constitution as paramount” rather than “weaken it by refined dialectics.”

  No amount of administrative skill or tactful leadership was going to bridge the fundamental ideological divisions in the Court, however, and Taft came in with an unwavering antilabor stance that solidified the conservative majority and Holmes’s and Brandeis’s distance from it. “The only class which is distinctly arrayed against this court . . . is organized labor,” Taft wrote his brother during his first year on the Court. “That faction we have to hit every little while, because they are continually violating the law and depending on threats and violence to accomplish their purpose.”30

  In one of his first decisions in the fall of 1921, Truax v. Corrigan, he did just that. Arizona had passed a statute forbidding courts to issue injunctions against peaceful picketing by strikers. Taft’s “rather spongy” majority opinion, as Holmes called it, relied on the usual argument that the law violated the Fourteenth Amendment’s protection of property. One absurdity of the majority opinion was that the supreme courts of many of the states had reached the same position as Arizona’s statute as a matter of common law—meaning that by Taft’s reasoning it was constitutional for a state supreme court to disallow the issuance of injunctions against picketers, but unconstitutional if a state legislature did the same, a point that Brandeis made in his dissent.

  Holmes’s separate dissent was in a way more pointed, because it went to the heart of the idea that a right of property was involved at all. “By calling a business ‘property’ you make it seem like land,” he wrote. But a business “is a course of conduct and like other conduct is subject to substantial modification according to time and circumstances.”

  Taft would later grumble about Brandeis’s and Holmes’s “claques in the law school contingent,” and grow increasingly exasperated by their frequent dissents, which he said only gave ammunition to political attacks on the Court from progressives like Senator Robert La Follette who wanted to limit its power to overturn legislation—but which he also knew sucked the force out of his opinions. Holmes, Taft complained, is “a very poor constitutional lawyer . . . he lacks the experience of affairs in government that would keep him straight on constitutional questions.”31

  But he always conceded that whatever their differences, “association with Justice Holmes is a delight,” as he told Learned Hand in 1923. “In many ways he is the life of the court.”32 Not least were Holmes’s lively interjections in oral argument, which became the stuff of legend among attorneys who appeared before the Court. All kept lists of their favorite Holmes anecdotes. A famous one involved Harding’s solicitor general, James M. Beck, a grand orator in the old style who liked to end his arguments with lengthy quotations from Shakespeare, ostentatiously recited from memory. Once Beck was delivering a particularly long quotation, which seemed to be aimed pointedly at the chief justice’s view of the case. Holmes leaned over to Taft and whispered—quite audibly—“I hope to God Mrs. Beck likes Shakespeare.” And more than once, Holmes came to the rescue of a young attorney who was about to walk into a trap one of his colleagues had laid. “I wouldn’t answer that question if I were you,” Holmes would genially interject.33

  Taft acknowledged that whatever “unsound” views Holmes might have on the Constitution, “it is a great comfort to have such a well of pure common law undefiled immediately next [to] one, so that one can drink and be sure one is getting the pure article.”34

  HOLMES COMPLAINED OF asthma and a cough the following spring of 1922 and though he prided himself that he had never missed a single meeting of the Court up until then, was absent from one Saturday conference by what Taft termed “the positive injunction of his doctor.” Holmes observed with humorous dismay to Mrs. Gray, “How I fear I am a venerable man. I called on a young woman the other day and when I left she came down stairs and helped me on with my overcoat.” He still took his daily walks with his secretary, who that year was Laurence Curtis II, “a dear rather simple minded true Bostonian,” as Holmes described him: “I have a one legged secretary who got smashed up by a fall in an aeroplane when training for the war, and we walk together at a judicial pace, which suits me better than it used to.”35

  For the summer Laski was pushing him to read “something about some industry in Chicago,” but he had responded, “Webbs, Industries and generally upward and onward as be damned,” and said he meant to “take advantage of my age” and get hold of an unexpurgated edition of Pepys’s Diaries. But on June 20, 1922, he was hit by “a thunder clap” that upended his peaceful summer plans.36 He wrote Justice Clarke from Corey Hill Hospital in Brookline, Massachusetts, a week later with the news:

  I was taken quite by surprise—about 2 days after a doctor and a catheter I found myself here—with a pipe promptly attached to my bladder and awaiting the psychologic moment for them to take my prostate from me. The preliminaries are striking—no sleep—spasmodic yearnings to piss &c &c. But I read books and receive flowers from the dames and am doing as well as could be expected.

  I think I shall be philosophical whatever the results. I can write but a line as I am on my back but I send you my love and gratitude.

  Yours OWH37

  The standard procedure at the time was to make an incision a few inches below the navel directly into the bladder and insert a drain tube to relieve the immediate obstruction to urination caused by the enlarged prostate—and then wait as much as several weeks, with the aim of reducing urea levels in the blood that often rose as a result of urinary retention, and which made an operation riskier by elevating blood pressure and putting a strain on the kidneys. The prostate would then be removed in a second operation through the same incision.38

  Holmes waited three weeks, having to lie on his back most of the time. He wrote to Ellen Curtis that he felt it “providential” he had seen her just before his hospitalization: “You are glad aren’t you that we did meet before this broke loose upon me? . . . I am at a low ebb in all but hope.” On July 12 he wrote her again, using a pencil because he could not sit up, “Dear Friend Today is the day—t
hey begin on me before long. . . . You have been a good friend. OWH.”39

  He was in the hospital another month before the doctors would let him return to Beverly Farms, but all had gone well. “I think I am a kind of prize patient,” he jauntily reported to Mrs. Curtis in August. “I do so hope to turn up in Washington as if nothing had happened—épater les bourgeois.”40

  Anna Codman and her son came to see him in the hospital, and she wrote him afterward,

  The tears were very near my eyes more than once, at witnessing your courageous cheerfulness. Young Russell was also gravely impressed and I am glad he has also a chance of feeling such an affectionate admiration for one of my dearest friends. You have the great gift of drawing young people round you and making them feel at their ease, and they absorb unconsciously deeper thoughts, new to them. . . .

  Always affectionately yours,

  A. K. Codman41

  Back at Beverly Farms, Holmes’s idea of recuperation was to read all of Shakespeare’s plays (in the hospital it had been “nothing higher than Kipling” and detective stories) and by the end of August he reported to Mrs. Gray, “I drive for an hour in the morning—walk inches—lie down—read Shakespeare and sleep—a little solitaire—complete irresponsibility—no mental improvement. That’s me.”42

  An elevator was being put in at 1720 Eye Street, and while the work was going on the library and front parlor were in a state of temporary chaos; on arriving back in Washington he was pushed from the train to a taxi in a wheelchair (“I blushed but submitted”) and he and Fanny went straight to the Powhatan Hotel, where they stayed for two weeks while the work at the house was completed. It increased his troubles, Holmes said, though they had wonderful rooms, “looking over the whole earth.”43