He also made a sly dig at the majority opinion, written by McReynolds, which Holmes pointed out had ignored a number of precedents—including one Holmes had written for the Court in 1903—that argued for deciding the case the other way. “I suppose that these cases and many others now join Blackstone v. Miller on the Index Expurgatorius—but we need an authoritative list,” Holmes wrote, alluding to the Inquisition’s list of banned works.
McReynolds, when he read out his decision in Court, added a few extremely nasty words not in his formal written opinion. “The result here ought to be clear,” he sneered, “to an unclouded mind.” The joke, as usual, was on McReynolds: eleven years later the Supreme Court overruled Baldwin, citing Holmes’s dissent in rejecting McReynolds’s opinion as wrongly decided.60
“I want to get all that I can out of the old hulk before coming to anchor,” Holmes wrote to Ethel Scott. The following year, for his ninetieth birthday, his friends arranged a national radio broadcast over the Columbia Broadcasting System to honor him, with tributes from Chief Justice Hughes, the president of the American Bar Association, and the dean of the Yale Law School. A microphone was set up in his library to carry a few closing words from Holmes himself. He had told Mrs. Curtis that the one thing that “made me not positively refuse to take any part in the radio talk” was that he had a cosmic observation readily at hand: it was a line from a volume of medieval Latin poetry he and Hiss had read the previous summer that had moved him with its defiance of death. He thought he could end his talk with the line, but still needed to come up with a few more words.61
But when he sat down to write, as usual the words came in a smooth flow, written in his unhesitating longhand with only a few emendations and cross-outs. There is a recording that survives of his talk, his fine, dignified patrician voice only slightly wavering at the start before falling into his orator’s practiced cadence:
In this symposium my part is only to sit in silence. To express one’s feelings as the end draws near is too intimate a task.
But I mention one thought that comes to me as a listener-in. The riders in a race do not stop short when they reach the goal. There is a little finishing canter before coming to a standstill. There is time to hear the kind voice of friends and to say to one’s self: The work is done.
But just as one says that, the answer comes: The race is over, but the work never is done while the power to work remains.
The canter that brings you to a standstill need not be only coming to rest. It cannot be while you still live. For to live is to function. That is all there is in living.
And so I end with a line from a Latin poet who uttered the message more than fifteen hundred years ago:
Death—death plucks my ear and says, “Live—I am coming.”62
He received a tide of congratulatory messages from friends and strangers, schoolchildren and fellow nonagenarians, plus a few patronizing letters from Christians quoting Bible verses and instructing him that “No Latin poet’s words will save you—only the blood of Jesus Christ can cleanse all from sin,” and suggesting that he would not have such a “hopeless tone” if he were saved.63
Other tributes came in; he sat to have his portrait painted and a bust sculpted, and received a hefty gold medal from the ABA which he wrote of wryly to Mrs. Curtis. “This morning the Bar Assoc. Medal arrived—very heavy—a profile of Marshall on one side—and a lady in the buff to her waist on the other pretending to distract you from her person by futile scales & sword. I must go and lock her up.”64
He wrote his last important opinion for the Court that spring of 1931, deciding a dispute between New Jersey and New York over the use of water from the Delaware River, and he used the opportunity to point out that there were principles of equity that rise above common law rules of property, and that there were interests of a nation that go beyond the words in any document. “A river is more than an amenity,” he declared, “it is a treasure.”65
He had once similarly reminded his fellow justices, and the nation, that the Constitution was not just a body of words or even of laws, but was an act in itself, and that it took a bloody Civil War among other tests to make America a nation: The Founders, Holmes wrote, “called into life a being the development of which could not have been foreseen completely by the most gifted of its begetters. It was enough for them to realize or to hope that they had created an organism; it has taken a century and has cost their successors much sweat and blood to prove that they created a nation. The case before us must be considered in the light of our whole experience, and not merely in that of what was said a hundred years ago.”66
IN THE SUMMER of 1931 he suffered what he called a “pull down” that he could not shake off. He confided to Mrs. Curtis that fall, “Sometimes I think the old hulk is slowly going to pieces.” His maid Mary Donnellan had taken over running the household after Fanny’s death and she “watches me tigerishly,” Holmes said, chastising him when he smoked too many cigars or tired himself out, and “quotes the doctor and is ominous if I don’t ease up.”67
Although his wits remained acute, he simply was no longer able to keep up with the work of the Court. It was obvious to his colleagues that the time had come for him to resign, and Holmes seemed to recognize it too, at least in private: at Thanksgiving he confessed to Nina Gray, “Writing like life comes harder to me as time goes on.”68
After conferring with Brandeis, Hughes came to see Holmes at noontime on Sunday, January 10, 1932, and gently told him the time indeed had come. Perhaps relieved to have the decision taken out of his hands, Holmes took it without the slightest hint of resentment or opposition, simply asked his secretary Chapman Rose to look up the relevant statute, and wrote out his resignation on the spot—dated two days later, the twelfth, so he could deliver his final opinion the following day. The tears pouring down Hughes’s impressive bearded face struck Rose as a remarkable sight, but Holmes, “though his heart was breaking,” Mary Donnellan later said, “wouldn’t let anyone know it.” Brandeis by arrangement showed up at 12:45 to keep Holmes company for the rest of the day. “He was as calm and gallant as ever,” Brandeis told Frankfurter.69
Knowing how much it would help Holmes in his retirement to continue having the companionship of a young secretary from the Law School, Rose and Frankfurter between them plotted out a plan of campaign to overcome his objections that the position would now have little to offer a prospective lawyer. For Rose’s successor they proposed Donald Hiss, knowing how much Holmes had liked his brother Alger, and Holmes gave way “without struggle.”70
“I am enjoying idleness more than I dared to expect,” he wrote to Nina Gray the spring following his retirement. But in another letter he added, “With blank feeling that achievement is over.”71 Laski, who had been as faithful a correspondent as ever since returning to England in 1920, had come to visit on Holmes’s ninetieth birthday and did so again in 1933. Learned Hand was a regular visitor, taking the train down from New York every few weeks and staying for an hour entertaining Holmes with dirty jokes. Brandeis, Hughes, and even McReynolds came to see him frequently, too, though Holmes said he had little interest in the Court’s work anymore: he wanted to feel like a rock in a riverbed, he said, with the water flowing over it. One exception was the evident satisfaction he evinced when Mark Howe told him the Court had finally rejected the idea of “a business affected with a public interest,” upholding a New York law regulating milk prices and effectively embracing Holmes’s dissent six years earlier in the ticket-scalping case Tyson & Bro. v. Banton.72
Editorial cartoon commenting on Holmes’s retirement
On his ninety-second birthday, four days after FDR’s inauguration, Frankfurter arranged for the president to make a surprise visit to 1720 Eye Street. Frankfurter and Corcoran had come to lunch, and Holmes’s niece and nephew had produced a bottle of champagne, which they quickly reassured him—no doubt with less than the complete truth—had come from the French Embassy, not a bootlegger.73 Donald Hiss kept a nervous looko
ut through the rest of the afternoon for the president’s arrival while Holmes napped in his bedroom.
In Rock Creek Park in the spring
When the car pulled up, Hiss hurried to wake him, saying, “Mr. Justice, I think the President of the United States is outside.” Coming immediately to life, Holmes barked back, “Don’t be an idiot, boy. He wouldn’t call on me.” Hiss said, “I’m pretty sure it is.” He helped Holmes change from his old alpaca coat to a swallowtail jacket, just as the doorbell rang.74
The President and Mrs. Roosevelt and Frankfurter joined Holmes in his study, and they had an animated conversation, FDR asking about his great-grandfather’s swords over the fireplace, and the talk ranging over history and other topics; and as the president was leaving, he asked if there was anything he could do for him. Roosevelt had just ordered the banks closed as an emergency measure to halt the panicked withdrawals that the Depression had triggered, and Holmes replied, No, nothing, except perhaps he could make an exception and let Supreme Court justices withdraw some cash from their accounts—or “don’t make it all Supreme Court justices, just retired justices,” he suggested—so they could pay their servants. FDR laughed, and asked if he had any final advice.
Holmes said, “No, Mr. President. The time I was in retreat, the Army was in retreat in disaster, the thing to do was to stop the retreat, blow your trumpet, have them give the order to charge. And that’s exactly what you are doing. That is an admirable thing to do and the only thing you could have done.”
HOLMES ONCE REMARKED to Barton Leach, “Why should people be afraid to die?”
I’m not. I’ll know the old fellow when he comes around and he’ll know me because I’ve seen him before. I’ve seen the army doctors pass me by with a shake of the head as they looked over the wounded. . . . The first time was in that hideous log hut on the island in the river at Balls Bluff where our wounded were carried during the battle. . . . The second time was at Antietam when they brought me in with a hole through my neck. And the third time was a couple of years ago when I was operated upon in Boston. The old fellow will look like an old friend when he finally does come around to take me.75
In the winter of 1935 Holmes contracted bronchial pneumonia, and died on March 6. He was buried two days later at Arlington Cemetery, on what would have been his ninety-fourth birthday. A long line of cars followed the horse-drawn caisson carrying his coffin, and the president came to pay his respects at the graveside as a chill wind blew and sleet and rain pelted down from a dark and overcast sky. But Mary Donnellan said, “Soldiers don’t mind the rain.”76
Holmes’s funeral procession at Arlington Cemetery
A few summers before, when Felix Frankfurter and his wife, Marion, had visited him at Beverly Farms, Holmes had begun to read his favorite Civil War poem, “The Old Sergeant,” but choked up partway through, his eyes full of tears.77
They were tears of nostalgia, tears for the futile but beautiful heroism of war, tears for the sadness but wisdom that the experience of battle had filled his entire life with.
When his Washington lawyer, John S. Flannery, opened Holmes’s private safe deposit box, he found in it a small paper parcel.78 Wrapped inside were two musket balls, and on the paper was a note in Holmes’s hand:
These were taken from my body in the Civil War
EPILOGUE
“Men Who Never Heard of Him Will Be Moving to the Measure of His Thought”
In his will Holmes left his nephew, Edward Jackson Holmes Jr., $100,000; his cousin Dorothy Upham Vaughan $25,000; his devoted housekeeper Mary Donnellan and longtime maid Annie Gough $10,000 each; and most of his other servants, including his Court messenger Arthur Thomas, his driver Charles Buckley, and his old Boston clerk James Doherty, $1,000 each. After some other small bequests, and gifts of $25,000 apiece to the Harvard Law School and the Boston Museum of Fine Arts, he instructed that his entire residuary estate, including the house at 1720 Eye Street, be given to the United States Government. The bequest amounted to $263,000, about $5 million today, the largest unrestricted gift the United States had ever received at the time.1
President Roosevelt immediately sent a message to Congress urging that this “striking gift” and “noble bequest” be dedicated to “some purpose worthy of the great man who gave it,” and a committee was named to develop a proposal that would honor Holmes’s legacy to the law.2
All of Holmes’s secretaries knew that this was not what he had in mind at all, but they equally knew that his intention that the money should simply go into the general Treasury—just as if he had paid it in a tax—would be incomprehensible to those who did not know him. John Flannery, who drew up the will on Holmes’s instructions, explained to Mark Howe that there was a sturdy logic to Holmes’s directions. He had passed on to his nephew, his father’s sole grandchild, the equivalent of what he had inherited from his father; he had returned to Fanny’s family substantially what he had received under her will when she died; and as the residue represented the accumulated investments from what he had saved out of his government salary, it was fitting that it be returned to the public, just as he had returned all his other capital to its source.3
The secretaries were asked to submit their views on a fitting use of the fund, and in their discussions among themselves Laurence Curtis tried to summarize Holmes’s true intentions, while acknowledging it was probably a lost cause:
This bequest to the government was a brave and hard gesture, too hard for most people to understand or appreciate. As a young man he had given his blood to his country, and at his death he wanted to give his property to his country. . . . In other words, I think he would have preferred to have his money just go into the common pot, as in his younger days he was prepared to have his life go into the common cause.4
James Rowe spoke to several members of Congress and tried to make the case, but Curtis’s apprehensions proved exactly correct: “They are completely unable to understand that reasoning behind it,” Rowe reported back to the others.5
In 1940, the committee appointed by Congress proposed using the Holmes bequest to commission a history of the Supreme Court and to create a garden in Holmes’s memory on land the government planned to acquire just east of the Court’s new building. Nothing happened for fifteen years, while the funds sat in a non-interest-bearing account. By then the plan to acquire the property next to the Court had been abandoned, foreclosing the idea of the memorial garden. Finally taking the matter in hand, Congress in 1955 voted an appropriation of $158,000 to make up for the lost interest and authorized a committee of scholars under the Librarian of Congress to oversee production of a multivolume “Oliver Wendell Holmes Devise” history of the Supreme Court.6
Another fifteen years passed, without any of the volumes appearing. In 1977, the new Librarian of Congress, Daniel Boorstin, publicly declared the situation “deplorable” and a “scandal,” and ordered the authors of the still-uncompleted volumes to turn over whatever they had written, in whatever form. One of the authors, a law professor at the University of Chicago, had literally nothing to show for his twenty years on the project, and under threat of government legal action was forced to return the $12,000 advance he had received, plus accumulated interest. The new editor that Boorstin brought in to revive the project acknowledged it had probably been a mistake from the start to assign the work to leading constitutional scholars: It was, he told the New York Times, “like getting seven of the smartest lawyers together and asking them to write a novel.”7
Eighty years after Holmes’s bequest, the volume covering the Taft Court, arguably the most important of Holmes’s own years on the Court, still had not been issued.
Frankfurter’s attempts to arrange for an authorized biography of Holmes that would help permanently enshrine his legacy fared little better. Holmes had never been enthusiastic about having his life written. “Part of the greatness of a great life I think consists in leaving it unadvertised,” he once told Lewis Einstein’s stepdaughter, just as on more t
han one occasion he took pride in noting that his regiment in the Civil War had never tried to sing its own praises: “The Twentieth never wrote about itself to the newspapers.” When John Wu urged him to write his autobiography, Holmes replied, “A man’s spiritual history is best told in what he does in his chosen line.”8
More than that, he felt that personal details were genuinely unimportant, of nobody’s business and of interest only to those who took their own “puny personality” far too seriously.9 In 1932 he had told Einstein that against any possible future biography, “I have done my best to destroy illuminating documents.” He frequently beseeched Nina Gray, Clare Castletown, Clara Stevens, Frankfurter, Laski, and other of his correspondents to burn his letters—a request they all thankfully ignored, though Laski was the most evasive in sidestepping Holmes’s entreaties.10 In December 1921 Holmes had written Laski, “I want to feel sure that what I write to you with openness of heart and spirit is safe from publication after my death. What I want to have made public I make public but it would take all spontaneity from me if I thought that the world would have a chance to see my shortcomings from an inside view. Please reassure me as to this.”11
Laski replied vowing his “solemn word that no letter of yours that I have shall be published.” But he pleaded not to be held to destroying them, as “there’s too deep a delight for me in re-reading them, and I cherish their possession as a monument to the greatest friendship I can ever hope to have.” In 1949, Laski gave all of the original letters to Mark Howe, and they were published in 1953.12
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