Oliver Wendell Holmes

by Stephen Budiansky

  IN THE WINTER of the Court’s 1922–23 term, the Shipp and Frank cases formed the background to one of the most important habeas corpus decisions of the Court to that date, and again the decision was by Holmes. Moore v. Dempsey presented one of the worst instances yet of a Southern mob-dominated trial to reach the federal courts. On the night of September 30, 1919, several hundred African American tenant farmers were meeting in a church near Elaine, Arkansas, to discuss joining together against the extortions routinely practiced on them by their white landlords. An armed white mob, responding to wild rumors that the black farmers were “planning an insurrection” and intending to “kill all the white people,” surrounded the church and opened fire. One white man was killed, and over the next several days white gangs hunted down and killed African Americans in the area with impunity.

  The defendants in Moore v. Dempsey (1923)

  With the assistance of federal troops sent to restore order, 120 blacks—and no whites—were arrested. The twelve black men charged with murder for the death of the white man at the church were convicted and sentenced to death in trials lasting less than an hour, in which their court-appointed lawyers called no witnesses and offered no challenges, and the juries returned verdicts in five to ten minutes.67

  The facts as alleged, Holmes wrote in his decision for the Court’s 6–2 majority, “make the trial absolutely void . . . no juryman could have voted for an acquittal and continued to live in Phillips County, and if any prisoner by any chance had been acquitted by a jury, he could not have escaped the mob.”

  Holmes acknowledged that “it certainly is true that mere mistakes of law in the course of a trial are not to be corrected” through a federal habeas corpus proceeding. “But if the case is that the whole proceeding is a mask—that counsel, jury and judge were swept to the fatal end by an irresistible wave of public passion, and that the State Courts failed to correct the wrong,” he wrote, then no assertion that criminal cases are matters to be left to the states “can prevent this Court from securing to the petitioners their constitutional rights.”

  The majority in Frank had allowed that a district court has the authority to consider habeas corpus appeals, but Holmes’s opinion in Moore took a huge step forward in guaranteeing those rights of criminal defendants in actual practice: he ruled that if the facts as presented to a federal court would, if true, be sufficient to substantiate a claim that a defendant had been denied a fair trial in violation of his constitutional rights to due process, then a federal district judge had an obligation to hold a hearing to determine whether they are indeed true.

  The decision provoked a furious dissent from McReynolds, in which, besides misstating the facts of the case (and sarcastically observing that “the fact that petitioners are poor and ignorant and black naturally arouses sympathy”), he ominously warned that “If every man convicted of crime in a state court may thereafter resort to the federal court . . . another way has been added to a list already unfortunately long to prevent prompt punishment. The delays incident to enforcement of our criminal laws have become a national scandal.”68

  Moore marked the first time the Court had intervened in a state court’s criminal conviction on due process grounds, but it was not just a victory for abstract constitutional rights: for the first time it also saved the lives of the defendants in a mob-dominated trial. The state agreed to reduce the death sentences to twelve years imprisonment in exchange for dropping the federal habeas proceedings, and in January 1925 the governor furloughed the remaining six men who were still being held, the other six who had been sentenced to death having been earlier released by the state supreme court.69

  The ruling helped restore progressives’ faith in the Court when it was at a low ebb, and the New Republic and other liberal publications hailed the decision and Holmes, just months after they had excoriated him for his decision in Pennsylvania Coal v. Mahon.70

  “Life certainly is one damned thing after another,” Holmes wrote to Einstein that winter.71

  CHAPTER 16

  “My Last Examination”

  Writing to an associate following Holmes’s return to the Court after his prostate surgery, Taft was barely able to conceal his hope that the recovery would prove only temporary. “An operation at that age has in a great many instances that I have known proved to be merely a suspension of the trouble,” he observed. Taft kept wishing that both Holmes and McKenna would retire, but as the months went by he was forced to admit that Holmes, at least, seemed as vigorous as ever—“thirsting for more cases,” and always eager to help out by taking on work from the other justices. Taft good-naturedly told Holmes “he would probably live to bury us all,” which turned out to be prophetic as far as Taft was concerned.1

  The newspapers regularly reported Holmes’s imminent retirement, which he suspected “must mean that somebody hopes to achieve the result by repeated suggestion.” Holmes always responded by quoting to his friends what Chief Justice Fuller had said under similar circumstances: “I am not to be paragraphed out of office.”2

  The rumors that he would resign on his eighty-fourth birthday in 1925 did however “add to the bores who beset me,” as his increasing public recognition brought a tide of letters from cranks and others. Among them, he wrote with amused irritation to Einstein, are the “elaborately genealogical to show relationship. . . . When I can I chuck them into the basket. I genuinely regret not being able to say: ‘Sir or Madam, I don’t care a damn about your descent. I don’t believe we are cousins and I hope not.’ . . . Brandeis says that it is a pity that the Post Office is so cheap.” He similarly ignored the requests he was now regularly deluged with for what “they call an autographed photograph.” (The “animals who ask this,” he observed to Laski, “often add to their offense by ‘thanking you in advance.’ ”)3

  Holmes on his 85th birthday

  His eighty-fifth birthday brought another surge of attention; along with the now-customary tributes from the profession there was his picture on the cover of Time magazine and a wave of newspaper stories and newsreel features. Time’s cover called him “more venerable than his father”—which he no doubt found doubly annoying, both for the comparison to his father and for employing the dreaded word “venerable”—but the accompanying article quoted a prediction that Holmes and Marshall would be seen as “the greatest two men that ever sat in the Supreme Court.” Lippmann, Frankfurter, and Hand all wrote unsigned pieces in newspapers and journals singing his unstinted praise. “The true disciples of Holmes are the first-rate men now in law school or just recently graduated. Between him and them there is a sympathy of spirit and a community of method which the pedants and legalists do not understand and look upon with some apprehension,” Lippmann wrote in the New York World, of which he was the editorial page editor. “He is a thinker who has made thinking, even about law, beautiful.”4

  He took popular fame for what it was. “This public business is like getting rich,” he observed to Mrs. Gray. “After you reach a certain point you can’t well help getting richer. And after a certain number of influential superlatives the papers go down like a row of bricks.” It was only the praise of “competent people,” he insisted, that mattered to him.5

  “As venerable as his father”: Time, March 15, 1926

  He steadfastly declined to give interviews, but had spoken off the record to Elizabeth Sergeant, a writer who was doing a series of profiles of contemporary Americans for the New Republic. She had shown up at his door a few months earlier bearing a letter of introduction from Frankfurter; she was forty-five, born in Massachusetts, educated at Bryn Mawr, and was an experienced journalist and war correspondent. Holmes was charmed and talked almost nonstop for an hour and a half. Only at the end did she mention she was hoping to write a piece about him; Holmes replied that of course she must not take her call on him as an interview, and that he “couldn’t cooperate” with her planned article. But Frankfurter accurately appraised the situation: “You certainly have bagged the Justice,” he wro
te her.6

  When her article appeared at the end of 1926 Holmes wrote to Frankfurter, “Miss Sergeant’s piece was a wonder of care in collecting facts and so kind that it made me blush.” He also wrote to her directly, to correct a few anecdotes, but mostly to implore her to remove one reference to Fanny before republishing the piece in a planned book. It was completely innocuous—Sergeant had quoted the passage from William James’s published letters in which James had spoken of Fanny as “A1,” back when he was Holmes’s rival for her attentions in Cambridge after the Civil War—but Holmes explained that “my wife is so averse to being mentioned in public” that he hoped she would understand: “My wife is not showing up sensitive for this occasion. Ever since we have been in Washington she has taken great pains to keep all mention of her out of the papers.”7

  Sergeant apparently also broached the idea of writing his biography, because Holmes wrote her, “As to the dream of a biography I hope that no one will write one while I live. I could not ask for kinder hands than yours, but I should be sorry to see it done by anybody.”8

  Fanny, unmollified, dismissed Sergeant as a “slimy cat.” But she made sport with Tommy Corcoran, Holmes’s secretary that year, over one line in the piece which had referred to the justice’s secretary as “a new jewel of the Harvard Law School every year.” Now when Corcoran arrived each morning, Mrs. Holmes would stop him on the stairs and demand, “Whose little jewel are you?” “I am Justice Holmes’s little jewel,” Corcoran would reply. “Pass, friend!”9

  At eighty-five Holmes had begun to outlive even his young friends. Clara Stevens had died suddenly of pernicious anemia two summers before, at age fifty-five. And in March 1927 Lady Castletown died at Doneraile, after a long decline following a fall on the stairs and a concussion she had suffered the year before. Her cousin Ethel St. Leger sent Holmes a long and very personal account of her illness and final peaceful death. “Perhaps you will not mention I have written to you to Castletown,” she cautioned. A lengthy and slightly cracked letter followed from Lord Castletown himself a week later, blaming a curse on the house for his wife’s death and sadly concluding, “Now all is gone and I have no object in life.”10

  But Holmes told his friends he enjoyed life as much as ever; his last few decades, in fact, had been the happiest he had ever known. “We are private soldiers and do not know the plan of campaign or even whether there is one, but I think the evidence plain that we should fight and not worry,” he wrote Baroness Moncheur that spring. He and Fanny never went out anymore, which suited him fine: “I say no to everything except to an invitation to a White House Reception to which I say yes and don’t go.” He sent Mrs. Gray his old formula for happiness, which he said “consists in the neglect of opportunities. I have neglected many—from D. Webster in Faneuil Hall, when I was a boy, to Wagner at Bayreuth—and no doubt other later ones—and am without regret. (You remember the old lady, French, presumably, who said she had remorse but no regrets.)”11

  That year he got around to reading Experience and Nature by John Dewey, an American philosopher a generation younger than the members of the Metaphysical Club, but who had been deeply influenced by the ideas of Holmes’s old circle. Dewey had developed William James’s and Charles Sanders Peirce’s ideas about pragmatism into a more encompassing political and philosophical theory. “I approached it with distrust although it referred to me as one of our greatest American philosophers, which gave me unusual pleasure, but I give you my word was not my reason for reading the book, or thinking well of it,” Holmes told Mrs. Curtis. “It is very badly written . . . and yet I thought it the profoundest and most comprehensive view of the world we know that I ever had read.”12

  Tommy Corcoran reported that Holmes had intrepidly climbed over a half dozen fences in Rock Creek Park on one of their excursions that spring in search of the first bloodroot flower. On an outing to Great Falls a few months later, Fanny had to admonish him like a little boy not to get near the edges of the cliffs overlooking the Potomac. And there were echoes of the same undiminished enthusiasm for conversational free-for-alls that had filled the Holmes dinner table at Montgomery Place in his boyhood, in his amused account of his first meeting with Mrs. Curtis on arriving at Beverly Farms: “I have had a struggle for life with my Curtis (each of us liking to talk—so that it becomes a question of getting the floor and keeping it till out of breath).”13

  “Life still is vivid to me,” he wrote his friend Mrs. Clifford in London.

  But I wonder as I look with delight on the symphonies of green about me here—or watch the thunder of the sea upon the Gloucester rocks, whether I am saying good bye. I dont worry. I am only a little sadder in my pleasure. I have had my whack—and I have no desire to be immortal. After saying which last one adds in one’s mind, but I should like four years more like the present—to turn 90 and die in harness doing one’s full share. 3 years and 9 months would get one past the line.14

  “I used to dream of a final calm under old trees, possibly, no—impossibly, in England or the East,” he once told Einstein. But, he had concluded, “one must grow one’s trees in one’s soul.” And meantime, he said as he approached the end of the Court’s term in the spring of 1927, “I enjoy my work as much as ever, and have had an interesting lot of cases to write.”15

  THE CASE THAT filled the headlines the summer of 1927 was not one that had reached the Supreme Court, but it had swept up Frankfurter and his liberal friends in yet another storm of public controversy. Two Italian anarchists, Nicola Sacco and Bartolomeo Vanzetti, had been arrested in the armed robbery in South Braintree, Massachusetts, of a factory payroll in which the company’s paymaster and a guard were shot and killed. The case was a liberal cause célèbre that continued for nearly a century afterward. Although subsequent evidence seems to show that Sacco and Vanzetti did take part in the robbery, their trial was marred by prosecutorial misconduct and biased comments by the judge, Webster Thayer, who was quoted making a raft of prejudiced remarks to acquaintances during the trial, such as, “Did you see what I did to those anarchistic bastards the other day? I guess that will hold them for a while.”16

  Frankfurter had been intensely active in defending immigrant radicals against deportation during the Palmer Raids and was importuned to look into the Sacco-Vanzetti case; when he did he was particularly outraged that prosecutors had concealed possibly exculpatory evidence. Throwing himself into the cause, he meticulously went over the record and wrote a twenty-three-page article that was published in the March 1927 issue of the Atlantic Monthly, and subsequently in a short book, exposing what he set forth as a manifest failure of the justice system.

  For his efforts, Frankfurter once again found himself under attack from Boston Brahmin society and the conservative legal establishment. Holmes told Laski he had heard from Brandeis that the book “has kicked up a commotion” and “Beacon Street is divided.”17 The usual old-Boston crowd was writing to President Lowell and Dean Pound threatening to withhold their support of Harvard as long as Frankfurter remained there. In response to Frankfurter’s Atlantic article, John Wigmore, Holmes’s erstwhile friend and more recent detractor, attacked Frankfurter in a front-page article in the newspaper of the Brahmin establishment, the Boston Evening Transcript, accusing him of committing a “libel on Massachusetts justice.” Wigmore began telling colleagues in Chicago that Frankfurter was “the most dangerous person in the U.S.”

  And Frankfurter’s old nemesis Justice McReynolds sent the Atlantic’s editor a complaint full of anti-Semitic sneers about Frankfurter’s “exotic” and “crooked” mind. “Perhaps I may venture to add,” McReynolds concluded his letter, “that to me it is a really annoying thing to find such a man teaching American boys at Harvard.”

  Sacco and Vanzetti’s final appeals having been denied, and an advisory committee named by the governor at the last minute recommending against clemency, their execution in the state’s electric chair was scheduled for midnight on August 10. In a last desperate bid, Holmes’s old f
riend Arthur D. Hill, who had taken over as lead counsel for the defense, drove out to the justice’s house that afternoon seeking a stay to allow them time to ask for a review of the case in federal court.

  All Holmes had read of the case was Frankfurter’s book; in March he had cautiously complimented him for his efforts, writing, “Naturally I don’t want to express any opinions at present beyond saying that I appreciate the self sacrifice and devotion to justice that led you to write the book.”18 But Frankfurter could not bear to accompany Hill and the three other lawyers on their journey to Beverly Farms.

  Holmes listened to them for two and a half hours, then wrote a one-paragraph order declining the request for a stay. The line between this case and Moore and the other cases where the Court had intervened was clear-cut. Prejudice on the part of a judge was insufficient to deprive the state court of jurisdiction; this was not a case of a lynch mob that had made the entire proceedings an empty form.