Oliver Wendell Holmes

by Stephen Budiansky

  A large group of reporters waited outside for the result. That night the police wanted to station an officer at the house, and Thomas Barbour, Holmes’s cousin by marriage, offered to spend the night on his porch as protection. Holmes declined both. But after the house of one of the jurors was blown up and threats mounted following Sacco and Vanzetti’s delayed execution on August 22, Holmes reluctantly agreed on Fanny’s insistence to have a guard posted at night. Corcoran let slip a mention of the guard in a letter to Frankfurter, who had not known of the threats to Holmes, and was stricken with the news.19

  Almost no attention was paid to a habeas corpus petition Holmes had granted to another lawyer who had made the drive to Beverly on July 14, just a month earlier. Nathan Bard and Bunyan Fleming, two black men in Madisonville, Kentucky, had been convicted of raping a sixteen-year-old white girl and sentenced to hang. With soldiers armed with a machine gun protecting the courthouse, an all-white jury had convicted Fleming after deliberating for ten minutes; it took them eight minutes the next day to convict Bard. Holmes approved the petition on the spot to allow the attorneys time to file an application for certiorari to the Supreme Court as soon as the Court’s term resumed in October. But on November 21, 1927, the full Court declined to hear the case, and four days later, in the last public hanging in America, Bard and Fleming, protesting their innocence to the last, were put to death before eight thousand spectators who crowded the Hopkins County jail and surrounding rooftops to watch the spectacle.20

  Holmes’s handwritten order staying the executions of Bard and Fleming, July 14, 1927

  The liberal and socialist press continued to whip up outrage over Sacco and Vanzetti, attacking Holmes—and Brandeis, who had also turned down a last-minute petition from their lawyers. But as Holmes noted when he had denied a third request from Hill, “thousand-fold worse cases” of injustice against blacks in the South went unremarked upon by those fired with the cause of protecting the rights of political radicals.21

  “This world,” he lamented to Einstein, “cares more for red than for black.”22

  ANOTHER CASE THAT received less attention at the time was the one that would cast the longest shadow over his reputation. To Holmes, the question raised in Buck v. Bell had not been a difficult one. In 1924 Virginia had enacted a law based on a model statute drafted by eugenics proponents. It authorized the sexual sterilization of inmates at state institutions who were afflicted with “idiocy, imbecility, feeble-mindedness” or “hereditary forms of insanity.” To answer a possible challenge to the law on due process grounds, an appeals process was provided to allow an inmate or an appointed guardian to contest a sterilization order in court. The superintendent of the Virginia State Colony for Epileptics and Feebleminded quickly arranged a test case intended to establish the law’s validity.

  Carrie Buck and her mother, at the Virginia State Colony for Epileptics and Feebleminded

  Carrie Buck was an eighteen-year-old who had been committed by her family to the State Colony. After unsuccessfully challenging her sterilization order in Virginia courts, her lawyer filed the appeal that reached the U.S. Supreme Court on April 22, 1927. Compared to drafting men for war or even ordering compulsory vaccinations, Holmes thought, sterilizing those incapable of taking care of themselves or their children was a small imposition on individual rights in the interests of society. In his decision for a nearly unanimous Court, delivered just ten days after hearing argument in the case, Holmes wrote:

  We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough.

  What Holmes and the Court did not know was that the lawyer representing Buck was a close friend of the doctor who ran the institution, was himself a longtime supporter of eugenics, and was a former member of the board that had ordered her sterilization. At trial he failed to bring out any evidence to challenge the pat medical testimony that both Buck and her mother were “feebleminded,” and that Buck’s seven-month-old daughter was likewise “not quite normal.” In fact, Buck had been a good student in school, her mother was literate, and Buck had been institutionalized after being sexually abused by the nephew of her foster family, who wanted to send her away to conceal the pregnancy—none of which appeared in the record that reached the Supreme Court.23

  Had Holmes been aware of the collusive nature of the appeal he might very well have taken a different view of the matter. Moreover, Taft had clearly egged Holmes on in assigning him the opinion, and even in suggesting the last brutal sentence for which it would always be remembered. The day after hearing oral argument, Taft sent Holmes the assignment, along with some strong advice:

  Saturday April 23, 1927

  Dear Justice Holmes,

  I have assigned to you the Virginia sterilization case. Some of the brethren are troubled about the case, especially Butler. May I suggest that you make a little full the care Virginia has taken in guarding against undue or hasty action, the proven absence of danger to the patient, and other circumstances tending to lessen the shock that many feel over such a remedy? The strength of the facts in three generations of course is the strongest argument for the necessity for such state action and its reasonableness.

  As ever yours

  Wm. H. Taft24

  Holmes closely followed Taft’s suggestions, setting out at length the appeals process provided for in the law—unaware that in Buck’s case it had been largely a sham. “This is very good and comprehensive,” Taft wrote on his return.25 Pierce Butler, the Court’s lone Catholic, remained troubled enough to register a lone dissent, though without writing an opinion.

  Holmes was unusually proud of his opinion in Buck, and particularly pleased that for once he had resisted at least some of the suggestions of his brethren to tone down his language. “I purposely used short and rather brutal words for an antithesis, polysyllables that made them mad,” he told Laski. “But a man must be allowed his own style. At times I have gone too far in yielding my own views as to the reason for the decision.”26

  Holmes’s love for honing memorable and punchy phrases more than once left an exaggerated impression of tough-mindedness: as a writer he understood the power of “brutal words,” and he took satisfaction in rattling commonplace thinking with a startling juxtaposition or a lunge for the rhetorical jugular that cut through sentimentality and euphemistic evasion.

  But there was also no doubt that his opinion in Buck reflected his basic worldview. As he wrote in “Natural Law,” society, acting through the law, sacrificed men without scruple whenever the community’s interests demanded it. Nor did he see anything particularly sacred about human reproduction in the abstract. In a case that reached the Massachusetts high court, he had ruled that an unborn child is not a person, dismissing a suit brought against a town for a defect in a public highway that caused a woman to fall and suffer a miscarriage. With Malthus much in mind, he had once remarked to Ethel Scott, “Most of the great things have been done with thin populations, and as I am not a Catholic I take no joy in increased numbers of ordinary ugly people.”27

  Likewise, his decisions in tort cases implicitly, and sometimes explicitly, embraced the view that a certain amount of maiming and death was just the price to be paid for the smooth functioning of society. In his appellate opinions in Massachusetts, he had consistently worked to elevate strict standards of due care into rules of law that made it difficult for injured parties to recover in accidents that occurred in the course of what he considered the
normal rough-and-tumble of everyday life. As he noted in one of these Massachusetts decisions, “all accidents could be prevented by not building.” But, since “it is desirable that buildings and fences should be put up,” the law does not throw all the risk on the builder for the injuries that from time to time are bound to occur. He reversed the judgment in the case of a recent immigrant who was injured when she fell into an open coal chute on the street, holding that the practical necessities of coal deliveries in a city made it impossible to require property owners to take special precautions against accidents of that kind. And he overturned the jury’s award of damages to a girl whose fingers were cut off in the coffee grinder in a grocery store.28

  As he explained to Lady Castletown at the time, “When a child of 6 puts her hand into a coffee-grinder in a shop and gets her finger taken off and we say she cant recover because she was hurt in consequence of unlawful intermeddling, we are saying in effect that it is more desirable that property should be respected even from a harmless touch than that one too young to look out for herself should have her finger kept on—not necessarily an absurd proposition but one which wouldn’t be so popular if stated that way!”29

  On the U.S. Supreme Court, in United Zinc v. Britt (1922), he had similarly overturned a judgment against a property owner for the deaths of two young boys who had gone swimming in a pool of clear-looking but sulfuric acid–tainted water left in the abandoned cellar of a torn-down chemical plant. His zeal to write into the law his draconian views about risk led him to render one of his other most notoriously bad decisions on the Supreme Court just a few months after Buck v. Bell. In Baltimore & Ohio R.R. v. Goodman (1927), Holmes held that a railroad was not at fault in a fatal grade-crossing accident where the view of the tracks was obstructed to an approaching driver. Showing if nothing else that he had never learned to drive himself, Holmes ruled as a matter of law that it was a driver’s duty to stop, get out of his car, and look down the tracks to see if a train was coming.

  The standard which Holmes enunciated in Goodman was overturned just seven years later, in an opinion by his successor on the Court, Justice Benjamin Cardozo—who, sounding more like Holmes than Holmes on this occasion, emphasized that the law had to take into account practical realities: “Standards of prudent conduct are declared at times by courts, but they are taken over from the facts of life. To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us. Besides being uncommon, it is very likely to be futile, and sometimes even dangerous.”30

  Brandeis thought the Court had had no business taking these cases in the first place and that Holmes had pressed his colleagues to do so mainly because he was “incorrigible when there is an opportunity of curbing the power and province of a jury.” But there was no escaping the impression that Holmes had also relished the opportunity to point out the brutal trade-offs that he believed were inherent in law, and life.31 While in so many areas of the law Holmes would prove decades ahead of his time, his Darwinian attitudes toward injury cases seemed at times almost a throwback to the nineteenth century—holding firm to a conception of tort law that was rapidly being swept aside by the very kind of nuanced balancing tests and apportionment of responsibility between the parties that he otherwise so zealously advanced.

  Holmes was always slightly puzzled why his liberal friends never seemed as enthusiastic about his opinion in Buck as he was. But he continued to receive their enthusiastic praise in the New Republic and the Harvard Law Review for other of his opinions in the later years of the Taft Court in which he was unquestionably taking an ever-bolder stand for civil liberties and racial justice, whatever his disparaging comments about human rights in the abstract.

  Just a few months before his decision in Buck in 1927, he delivered the Court’s decision in Nixon v. Herndon, which held that a Texas law barring blacks from voting in the state’s Democratic primary elections was an unconstitutional violation of the Fourteenth Amendment. It was a forceful and direct opinion, declaring in no uncertain terms that the amendment, “while it applies to all, was passed, as we know, with a special intent to protect the blacks from discrimination against them.” He dismissed the defendants’ claim that the matter was “political” and therefore beyond the jurisdiction of the courts as “little more than a play upon words.” He concluded: “It is too clear for extended argument that color cannot be made the basis” of a state’s denial of a right to vote. Even McReynolds joined the Court’s unanimous opinion.

  But, as always, Holmes more often found himself in dissent, joined most often only by Brandeis. The following term Holmes particularly infuriated Taft with his dissent in Olmstead v. U.S. (1928), an appeal by a bootlegger in Washington State named Roy Olmstead, whose telephones federal agents had tapped. There was no doubt they had the right man. Olmstead was notorious as “the King of the Bootleggers,” and the hundreds of pages of transcribed phone conversations documented a vast business enterprise, in which operators took orders from morning till night, and hundreds of cases of liquor smuggled in on motorboats from Canada were delivered each day throughout the Seattle area by Olmstead’s fleet of trucks.32

  A Washington State law made wiretapping a crime. But Taft’s opinion for the Court which affirmed Olmstead’s conviction brushed that aside: the common law rule had always been that evidence—however obtained—was admissible in a court of law, as long as it was pertinent. Taft also rejected Olmstead’s claim that intercepting his conversations violated the Fourth Amendment’s protection against unreasonable searches and seizures. Taft said that because agents never actually entered the defendants’ homes or offices, and attached their taps to telephone wires at poles on the street or in a common basement area of an apartment building, “There was no searching. There was no seizure.”

  Holmes’s dissent was a classic expression of his view that the law is always a balance between competing and incompatible ends. He suggested there was no need even to consider the question of rights under the Fourth Amendment: a more fundamental principle was at work. Delivered at the very end of the term, in June 1928, Holmes’s opinion spoke to his most basic beliefs about the law and the role of the courts:

  There is no body of precedents by which we are bound, and which confines us to logical deduction from established rules. Therefore we must consider the two objects of desire, both of which we cannot have, and make up our minds which to choose. It is desirable that criminals should be detected, and, to that end, that all available evidence should be used. It also is desirable that the Government should not itself foster and pay for other crime, when they are the means by which the evidence is to be obtained. . . . We have to choose, and, for my part, I think it a less evil that some criminals should escape than that the Government should play an ignoble part.

  For those who agree with me, no distinction can be taken between the Government as prosecutor and the Government as judge. If the existing code does not permit district attorneys to have a hand in such dirty business, it does not permit the judge to allow such iniquities to succeed.

  Taft furiously wrote to his brother that Holmes had written “the nastiest opinion,” and added, “If they think we are going to be frightened in our effort to stand by the law and give the public a chance to punish criminals, they are mistaken, even though we are condemned for lack of high ideals.” In the past, Taft had called Holmes “a noisy dissenter,” but now he began to rage that if the rest of the Court had followed Holmes and Brandeis, “I don’t think we would have had much of a Constitution to deal with.”33

  But Arthur Sutherland, Holmes’s secretary that year, said he never forgot the magnificent disdain with which Holmes spoke the words “dirty business” as he read out his dissent in Court that day, his careful voice still resonant and filling the room in his eighty-seventh year.34

  ONE OTHER DEEP and persistent divide between Holmes and the old guard of the Court that came to the fore that term went back to one of his earliest and most basic ideas about the law
, which he had first set forth in The Common Law.

  The law, as Holmes never tired of pointing out, is at its foundation “a statement of the circumstances in which the public force will be brought to bear upon men through the courts.”35 As such, it has meaning only as “the articulate voice of some sovereign or quasi-sovereign that can be identified,” he insisted in his dissent in Southern Pacific v. Jensen, the 1917 case in which he pronounced his famous dictum, “The common law is not a brooding omnipresence in the sky.”

  In that case, he had taken exception to the Court’s ruling that New York State’s workmen’s compensation law could not apply to seamen. The majority held that the state law was preempted by the customary rules of admiralty law that dictated compensation for injuries to sailors. But, as Holmes underscored in a subsequent 1922 case in which he was able to command a narrow 5–3 majority on a question that pitted the rules of admiralty law against the government’s immunity from claims, the law is not an abstract body of principles that a court can draw upon at will, but only what a sovereign power agrees to enforce. “However ancient may be the traditions of maritime law, however diverse the sources from which it has been drawn, it derives its whole and only power in this country from its having been accepted and adopted by the United States,” Holmes wrote. “There is no mystic over law to which even the United States must bow.”36

  One implication of this basic conception of the law that particularly incensed his bête noire John M. Zane was Holmes’s explanation for why the government cannot be sued without its consent. In 1907, dismissing a suit against the Territory of Hawaii over a disputed land sale, Holmes wrote, “A sovereign is exempt from suit not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends.”37