Oliver Wendell Holmes

by Stephen Budiansky

  As always his work proved the best medicine. He immediately wrote the opinion in a case argued the first day of the term, relating to Mrs. Gray that “the guardians of the public taste made me strike out one phrase that I thought happy. I knew they would when I put it in.” But, he went on, “As I say to the boys when I smilingly consent to strike out something from an opinion that I knew would turn their stomach, our effort is to please.”44

  The case involved a Pennsylvania statute that reflected a long-standing local custom allowing a property owner to rebuild a wall shared with an adjacent building; in rejecting a Fourteenth Amendment claim against the law, Holmes had originally made a wisecrack about his much disliked phrase “police power,” observing that the action here “does not commit even the petty larceny of the police power.” He dutifully changed it in the final version to, “does not need to invoke the police power.”45

  Though he still felt weak in the legs, he was able to sit at a table “and do a days work.” He said to Mrs. Curtis, “I feel as if it were a close shave.”46

  BRANDEIS HAPPILY REPORTED a few months later, “We met Holmes J. walking alone on K St. yesterday PM. Blooming and buoyant, having practically written the last opinion in his hands.”47

  He and Holmes continued to wage their fight against the narrow view of the Court’s majority of what social, economic, and labor laws were allowable under the Fourteenth Amendment. During Taft’s nine years as chief justice, the Court struck down almost one hundred state laws, most on the grounds that they interfered with private business activity in violation of “liberty of contract” or right to property under the Due Process Clause. In dozens of these cases Holmes and Brandeis dissented, later often joined by Justice Harlan F. Stone, who replaced McKenna on the Court in 1925.

  Taft began to talk about the “enemies of the Constitution,” complaining that Brandeis was out to “break down the prestige of the Court” and that Holmes was “so completely under the control of Brother Brandeis that it gives to Brandeis two votes instead of one.” Moreover, Taft complained, Holmes seemed to care only about his dissents, turning in perfunctory and “not very helpful” opinions in cases in which he was assigned to write the majority opinion.48

  The position Holmes and Brandeis took in their dissents was hardly radical: if a legislature had a reasonable basis for enacting a law regulating business, it was not for the courts to say otherwise. The Court’s conservative majority, however, continued to hold that except when justified as an exercise of “police powers” in the interests of health, safety, or public morals, or in a very narrow circumstance when a business was “affected by the public interest”—such as the grain elevators in Chicago that stood “in the very gateway of commerce”—all such meddling with private enterprise was unconstitutional.49

  On that reasoning the Taft Court threw out a Pennsylvania law banning the use of recycled wool in mattresses, a Tennessee law regulating the price of gasoline and a Minnesota law the price of milk, a Wisconsin law subjecting gifts made within six years of death to the state’s inheritance tax, a California law requiring the licensing of car services that transported passengers between fixed points, a Pennsylvania law requiring the owners of drug stores to be pharmacists, and a New York law outlawing the scalping of theater tickets. Holmes dissented in all.50

  In the New York ticket case, Tyson & Brother v. Banton, Holmes dropped any effort to salvage the majority’s theories of “police powers” or a business “dedicated to a public use” in making his case for the validity of state laws regulating a business. Those terms, he wrote in his dissent, are merely used “to apologize for the general power of the legislature to make some part of the community uncomfortable by change.”

  I do not believe in such apologies. I think the proper course is to recognize that a state legislature can do whatever it sees fit to do unless it is restrained by some express prohibition in the Constitution of the United States or of the State, and that Courts should be careful not to extend such prohibitions beyond their obvious meaning by reading into them conceptions of public policy that the particular Court may happen to entertain. . . . The notion that a business is clothed with a public interest and has been devoted to the public use is little more than a fiction intended to beautify what is disagreeable to the sufferers.

  A notable exception to Holmes’s stand against the Court’s striking down state laws in the name of property rights came in the fall of 1922, in a case that Taft persuaded him to write while he was still recovering from his operation. Brandeis was the sole dissenter; he told Frankfurter afterward that he thought Taft had caught Holmes at a vulnerable moment, and “played him to go whole hog.” Pennsylvania Coal Co. v. Mahon, which has never been overturned, held that a state law banning mining of coal within the limits of a city unconstitutionally deprived coal companies of the mineral rights they had retained when selling the land for development. The law was intended to protect buildings from collapse as a result of subsidence from mining, but Holmes held that this time the government had gone too far in infringing on expressly reserved property rights.51

  But otherwise the battle lines remained deeply drawn as ever. What Justice Clarke called the “Fourteenth Amendment nonsense” so frustrated him that he abruptly resigned that fall. Clarke, a Wilson appointee and the one other voice on the Court to resist the reactionary direction of the majority, was a lifelong bachelor and a confirmed hypochondriac, and there were other things preying on his mind; he was given to bouts of melancholia, and McReynolds’s constant insults and torments added to his miseries. But it was the overall sense of futility that most of all led him to give up. Two years later, happily back home in Ohio, he wrote to his former colleague Van Devanter, “The most trying part of it all was the conferences, so futile for the most part and so little like what I had imagined, and what the country imagines they must be.”52

  Holmes dealt with the ongoing impasse over the Fourteenth Amendment with his usual humorous stoicism: Frankfurter related how Holmes once told him that whenever his fellow justices started going on about “liberty of contract,” he would pass the time by “thinking of all the beautiful women he had known.”53

  Brandeis on numerous occasions used his dissents to present an exhaustive factual background that he hoped would point out the rationale for the laws that the Court majority was so cavalierly overturning as “unreasonable, arbitrary or capricious.” When the Court struck down a Nebraska law setting standard weights for loaves of bread sold at retail, Brandeis “wrote a good dissent,” Holmes slightly facetiously told Pollock, “showing profound study of the art of bread making.” Even Laski once suggested to Holmes, “If you could hint to Brandeis that judicial opinions aren’t to be written in the form of a brief it would be a great relief to the world.”54

  Although Holmes said that “the way in which that cuss is loaded with facts on all manner of subjects leaves me gawping,” Holmes himself, as always, relied on rhetorical strikes at the jugular rather than massed assaults of facts.55 When the Court refused in Adkins v. Children’s Hospital in the spring of 1923 to uphold a law Congress had passed setting a minimum wage for women workers in the District of Columbia, even Taft balked; while not joining Holmes’s dissent, he wrote a separate opinion stating that he had assumed the Court had quietly overturned Lochner in its intervening decisions upholding Oregon’s laws regulating working hours. That the Court was now resuscitating the majority opinion in Lochner was seen by most progressives as a huge step backward.

  Holmes, though, claimed to be unfazed. “The minimum wage case didn’t bother me at all personally as I like to shoot off my mouth without having to secure some one else’s agreement,” he wrote to Mrs. Gray.56 But he took direct aim at the idea of liberty of contract in his dissent in Adkins, which would join Lochner as one of his most famous and prophetic stands against one of the Court’s most notoriously misguided decisions. “Contract is not specially mentioned in the text that we have to construe,” wrote Holmes. “It is merely
an example of doing what you want to do, embodied in the word liberty. But pretty much all law consists in forbidding men to do some things that they want to do, and contract is no more exempt from law than other acts.”

  For the next fourteen years, until Adkins was overturned, four of the justices who had joined the majority opinion—McReynolds, Van Devanter, and two of Harding’s new appointees, Pierce Butler and George Sutherland—would form a solid conservative bloc, striking down not only all similar state laws, but much of the early program of the New Deal. Frankfurter dubbed them the “Four Horsemen,” as in the biblical riders of the apocalypse.

  AMONG TEDDY ROOSEVELT’S sources of “bitter disappointment” with Holmes, besides the Northern Securities case, were his decisions “on the negro question.”57 Holmes had in fact shown decidedly little sympathy for the plight of African Americans in the Jim Crow South in a number of cases that reached the Court early in his tenure.

  Like nearly all members of his class and time, his only direct contact with African Americans in segregated Washington was as servants, in his case chiefly his Court messenger and household butler. Although Holmes never evinced any racist sentiments himself, and never uttered a word suggesting he agreed with the “scientific” thinking about race of the day that viewed blacks as biologically inferior, he clearly looked upon segregation and the South’s maintenance of white supremacy as expressions of “the dominant force of the community,” which he always insisted the law inescapably reflected, and which it was vain for courts to oppose.58 His lack of concern with racial justice in the abstract was no different in one sense from his equal indifference toward other claims of abstract rights. But his complex feelings about the war and the determined walling-off of the fervent abolitionism of his youth had left him with a noticeable blind spot on racial matters, which led him directly to write several of the worst decisions of his career. Only later, when his impassioned defense of due process in criminal trials began to open his eyes to the systematic and brutal nature of racial discrimination in the South, did he begin to question his own thinking about race and to acknowledge the widespread injustices experienced by African Americans in daily life.

  In his very first months on the Court—in what was arguably one of his most poorly reasoned opinions—Holmes delivered the decision in Giles v. Harris, declining to order Alabama to register five thousand black voters in Montgomery. Like every other Southern state at the turn of the twentieth century, Alabama had adopted a new constitution specifically designed to throw black voters off the rolls. Alabama relied mainly on a so-called grandfather clause that imposed permanent literacy and property tests, but allowed lifetime voter registration for a brief initial period for those who qualified under a set of carefully drawn exceptions that only whites were likely to meet—such as having fought on either side “in the war between the states” or being the descendant of a veteran of any of America’s wars.

  The leaders of Alabama’s constitutional convention openly declared that the “paramount purpose” was to “lay deep and strong and permanent in the fundamental law of the State the foundation of white supremacy forever in Alabama,” and the result was exactly as intended: after the new constitution went into effect, only 3,000 blacks out of an eligible population of 180,000 in the state were left on the voter rolls.59

  In an argument that bordered on sophistry, Holmes in his decision asserted that if Alabama’s voter registration was corrupt, as the petitioners alleged, then “how can we make the court a party to the unlawful scheme by accepting it and adding another voter to its fraudulent lists?” But probably more reflective of his thinking was his conclusion: “Relief from a great political wrong, if done, as alleged, by the people of a state and the state itself, must be given by them or by the legislative and political department of the government of the United States,” Holmes insisted—not the courts.

  In other cases challenging Jim Crow rule, Holmes had consistently sided with the Court’s majority in maintaining the separate but equal rule of Plessy v. Ferguson. He even declined to associate himself with the Court’s finding that an Oklahoma law allowing railroads not to offer dining or sleeping cars for black passengers on segregated trains violated the Equal Protection Clause. He likewise voted to affirm a Kentucky law that made intermixing of the races a crime, even at private institutions—which was aimed at eliminating the one integrated college in the state, Berea College, founded by idealistic abolitionists after the Civil War.60

  And in a dissent that was full of ironies—“legalistic in the worst sense of legalism,” as Max Lerner, a liberal but clear-eyed admirer of Holmes called it, and ignoring the “simple facts of human experience” that Holmes himself had always maintained judges need to consider in applying the law—he argued for the constitutionality of Alabama’s peonage laws, under which thousands of African Americans were arrested for trivial offenses, mostly farm laborers accused of breaking their labor contracts, and forced to pay off their fines as convict labor leased out to private employers.61

  He had even been planning at first to dissent from the Court’s ultimately unanimous 1916 opinion in Buchanan v. Warley holding as an unconstitutional denial of due process a city ordinance in Louisville, Kentucky, that forbade any “colored person to move into and occupy as a residence” a house in a predominantly white neighborhood.

  The case had its peculiarities. A law cannot be challenged in the abstract as unconstitutional: the Constitution explicitly limits the Supreme Court’s jurisdiction to “actual controversies,” meaning there has to be a party who can show he was injured and has a plausible legal claim against another. An African American buyer whose offer to purchase a house was simply not accepted by a white seller had no direct standing to challenge the law.

  The NAACP’s attorneys had been trying to devise a case that would create an “actual controversy” at law, and with the help of a cooperative white real-estate agent they finally did so: the agent entered into a contract of sale with a black purchaser, but it included a provision that if any local law prevented the buyer from occupying the property, he would not be required to complete the purchase. The black buyer, citing the Louisville law, accordingly refused to fulfill the contract, and the white seller sued him, arguing that because the Louisville law was constitutionally invalid, the buyer was required to meet his contractual obligation.

  It was a clever solution, but it troubled Holmes greatly precisely because it was the product of collusion between the parties, the kind of abuse of the legal process that never failed to raise his hackles. Learned Hand often told the story of how one time, visiting Holmes in Washington, he had jokingly called back to him as they parted after sharing a ride to the Capitol, “Well, Sir, goodbye, do justice!”

  Holmes spun sharply around. “Come here young feller, come here.”

  “Oh, I know, I know,” Hand replied, aware of what was coming. As he reached him, Holmes said, “That is not my job. My job is to play the game according to the rules.”62

  In his unpublished dissent in Buchanan, Holmes made the point that the case did not look like playing by the rules. “The contract sounds so very like a wager upon the constitutionality of the ordinance that I cannot but feel a doubt whether the suit should be entertained without some evidence that this is not a manufactured case,” he wrote.63

  Holmes left no clue of why he abandoned his dissent; it was likely one of the many instances in which he ultimately chose to “shut up” rather than to appear as the lone holdout to another unanimous decision. In any event, the Court’s decision was the first time it had applied the Due Process Clause in limiting racial segregation, and the first time it had spoken unanimously in a civil rights case involving racial discrimination.

  But it was Holmes’s very sensitivity to questions of genuine due process, whatever his relative indifference to the lives of African Americans in the segregated South, that began to chip away at his judicial attitudes toward racial discrimination in the cases that came before the Taft
Court. The Frank case had touched him at an emotional level that was unusual for him, and he had been equally indignant at the outrage to justice in another early case to come before the Supreme Court in which a lynch mob had made a mockery of legal proceedings. That case had led to the only criminal trial in the history of the Supreme Court, when the sheriff in Chattanooga, Tennessee, was brought up for contempt for allowing a lynch mob to take from his jail a black man sentenced to death for raping a white woman.

  It was a typical horrific case of Southern summary justice for a black man accused, on however flimsy evidence, of an “outrage” against Southern womanhood. Under repeated threats that the defendant, Ed Johnson, would be lynched if his trial or execution were delayed, his court-appointed lawyers declined to seek a new trial or appeal. But Chattanooga’s leading black attorney stepped in and filed a habeas corpus petition in federal court, and Justice Harlan, and then the full U.S. Supreme Court, granted a stay to allow his appeal to be heard. After receiving a telegram from the Court informing him of the stay—it specifically noted that Johnson was now in the custody of the federal courts—the sheriff, Joseph Shipp, dismissed the jail’s guards, and a mob that night raided the jail and seized Johnson. They strung him up from a bridge, then riddled his body with bullets when he did not die quickly enough. A note was pinned to his chest: “To Justice Harlan. Come get your nigger now.”64

  Shipp gave a newspaper interview the next morning. “The Supreme Court of the United States was responsible for this lynching,” he defiantly declared. “The people . . . were willing to let the law take its course until it became known that the case would probably not be disposed of for four or five years by the Supreme Court of the United States. The people would not submit to this and I do not wonder at it.”65

  Holmes wrote the Court’s opinion unequivocally asserting the Supreme Court’s jurisdiction to enforce its decrees and ordering a contempt trial of Shipp and others who were a party to the lynching. The trial was held in Chattanooga by a special master appointed by the Court, and the record sent to the Court for a final verdict. After two hours of oral arguments from both sides and several days of deliberation, the Supreme Court found the men all guilty of contempt. Holmes was especially adamant that the integrity of the Court was at stake and that such a brazen defiance of its orders could not be allowed to pass unpunished. Holmes urged a stiff sentence: “I don’t see how we can treat it as less than a grave offense,” he wrote the chief justice. “I am inclined to say one year’s imprisonment.” Fuller gave the men ninety days. When Shipp arrived back in Chattanooga after serving his brief sentence, he was greeted at the station by a cheering crowd of ten thousand, and a band that struck up “Dixie” and “Home, Sweet Home” as he stepped onto the platform.66