26.Tip-in notes, Otis v. Parker, No. 41, bound volume of opinions, 1902 term, OWHP.
27.Hughes, Autobiographical Notes, 173–74; Urofsky, Brandeis, 475; McCormack, “Law Clerk’s Recollections,” 714.
28.OWH to FP, April 4, 1909, H-P, 1:154.
29.OWH to CSRS, January 10, 1903, MDHM, 17-38; OWH to Melville W. Fuller, February 5 and 6, 1903, quoted in King, Fuller, 291.
30.Derby, “Recollections,” 348.
31.Joseph Choate, quoted in Friedman and Israel, eds., Justices of Supreme Court, 2:1494.
32.King, Fuller, 125.
33.Notes of Reminiscences, 2, WBLM; OWH to ASG, October 14, 1911, MDHM, 15-9; JRG, 66–67.
34.“Justice Harlan’s Harrangue,” The Nation, May 30, 1895, 417, quoted in King, Fuller, 215–16.
35.OWH to EC, March 3, 1903, MDHM, 14-21; JRG, 66.
36.JRG, 82 n. 321; OWH to NG, January 4 and 16, 1903, MDHM, 3-21.
37.Acheson, Memoir, 65; OWH to FF, March 28, 1922, H-F, 138.
38.Schwartz, History of Supreme Court, 180–82; People v. Gillson, 109 N.Y. 389 (1888), at 398.
39.Friedman and Israel, Justices of Supreme Court, 2:1577, 1603.
40.King, Fuller, 313.
41.OWH to EC, November 27, 1904, MDHM, 14-21.
42.OWH to William L. Putnam, July 12, 1910, in “Judge Putnam’s Recollections,” 529; King, Fuller, 134.
43.King, Fuller, 291.
44.Bleistein v. Donaldson Lithographing Company (1903).
45.OWH to EC, February 7, 1903, MDHM, 14-21.
46.Belknap, OH, 15; OWH to ASG, January 10, 1911, MDHM, 15-9; OWH to NG, January 13, 1927, MDHM, 4-16; “Dixie Belles Radiant,” WP, January 22, 1908.
47.OWH to NG, February 8, 1904, MDHM, 3-23; Hale, Table Talk, 16.
48.OWH to NG, May 10, 1892, MDHM, 3-14; McCabe in “Presentation of Price Library,” 11; OWH to William Gordon McCabe, June 19, 1905, McCabe, Papers, box 2; Donald Hiss in Louchheim, New Deal, 40.
49.Acheson, Memoir, 49.
50.OWH to EC, January 12, 1903, MDHM, 14-21.
51.OWH to NG, February 15, 1903, MDHM, 3-21; OWH to EC, February 7, 1903, MDHM, 14-21.
52.OWH to EC, January 25, 1903, MDHM, 14-21.
53.OWH to NG, February 8, 1904, MDHM, 3-23; OWH to CSRS, January 10, 1903, MDHM, 17-38.
54.“Justice Holmes Sighed,” WP, January 31, 1904.
55.Memorandum of talk with Mrs. James B. Ayer, October 25, 1955, MDHM, 23-2; OWH to NG, February 15, 1903, MDHM, 3-21; Mrs. Holmes’ Visiting Book, 1905–1909, OWHP, 55-10.
56.OWH to EC, January 12 and February 7, 1903, MDHM, 14-21.
57.Graham, Washington, 191; Herbert v. Shanley (1917); OWH to EC, July 31, 1919, MDHM, 14-22.
58.Graham, Washington, 191; Meyer, Roots, 171. The oft-mentioned story about Fanny and TR comes from Catherine Drinker Bowen’s highly fictionalized 1943 biography of Holmes, Yankee from Olympus, but there is corroboration of Fanny’s mordant observation about Washington wives in a letter Holmes wrote at the time: “My wife has seen tragedies—wives of men whom they had helped to arrive—and when they get here with their clothes they realize that now they are an encumbrance” (OWH to EC, February 7, 1903, MDHM, 14-21).
59.Biddle, Casual Past, 289–90.
60.Hale, Table Talk, 12.
61.Acheson, Memoir, 49, 55; Belknap, OH, 16; Archie Butt to Clara Butt, September 10, 1910, Butt, Letters, 2:508. Butt refers to Mrs. Holmes’s “treatment of Mrs. Stonewall Jackson at the White House,” but does not elaborate. Mrs. Jackson was one of the guests at a dinner at the White House that the Holmeses attended earlier that year (“Supreme Court Justices Dine at White House,” WP, January 26, 1910).
62.Belknap, OH, 17–18.
63.OWH to NG, December 25, 1903, MDHM, 3-23, and May 8, 1910, MDHM, 3-32; OWH to CSRS, May 10, 1908, MDHM, 17-38.
64.OWH to Anna K. Codman, February 15, 1903, MDHM, 14-11; OWH to EC, January 24, 1904, MDHM, 14-21.
65.OWH to EC, January 12, 1903, MDHM, 14-21.
66.OWH to Anna K. Codman, January 20, 1904, MDHM, 14-11; “Marriage of Miss Brewer to Mr. Wellington Wells,” WP, February 9, 1904; OWH to NG, February 8, 1904, MDHM, 3-23.
67.OWH to Codman, February 15, 1903, MDHM, 14-11; “New Belgian Minister to Wed Miss Clayton in Mexico,” WP, November 19, 1901; CM to OWH, August 11, 19[?], OWHP, 20-15; OWH to CM, September 15, 1909, MDHM, 19-22.
68.Liebman, “Lewis Einstein”; H-E, xx.
69.H-E, v, xx–xxi.
70.OWH to NG, May 3, 1903, MDHM, 3-22.
71.Ibid., April 12, 1903.
72.OWH to EC, April 21 and February 7, 1903, MDHM, 14-21; Appendix I: Opinions of the Court, King, Fuller, 339.
73.OWH to NG, May 3, 1903, MDHM, 3-22.
74.OWH to EC, February 8, 1904, MDHM, 14-21.
CHAPTER 11: Due Process
1.OWH to NG, July 11, 1903, MDHM, 3-22; engagement book [1903], OWHP, 58-2; miscellaneous receipts, 1903, OWHP, 13-1. Holmes’s engagement book for his 1903 trip to England is listed in the catalog to the OWHP as “c. 1898,” however the dates and days of the week he recorded match 1903, as do the details of the trip.
2.OWH to NG, August 14, 1903, MDHM, 3-22, and September 2, 1903, MDHM, 3-23.
3.OWH to Lucy Clifford, January 21, 1928, MDHM, 14-10; OWH to ES, November 28, 1908, MDHM, 17-28. Holmes made similar remarks about the unhumility of Christians in OWH to NG, May 8, 1910, MDHM, 3-32, and OWH to Morris R. Cohen, May 27, 1917, Cohen, “Correspondence,” 9.
4.OWH to LE, October 12, 1914, H-E, 101.
5.OWH to LE, August 8, 1925, H-E, 246.
6.OWH to Patrick Sheehan, December 27, 1903, and February 1904, H-S, 11, 12.
7.OWH to Sheehan, January 2, 1904, H-S, 12.
8.Sheehan to OWH, October 6, 1912, H-S, 46, 48.
9.OWH to LE, May 19, 1917, H-E, 141; OWH to EC, February 25, 1904, MDHM, 14-21; OWH to ASG, July 29, 1912, MDHM, 15-9.
10.OWH to NG, April 12, 1903, MDHM, 3-22.
11.Miscellaneous receipts, 1903–1904, OWHP, 31-2, 31-3; OWH to NG, October 18, November 1, and December 25, 1903, MDHM, 3-23.
12.Miscellaneous receipts, 1903–1904, OWHP, 31-4; OWH to NG, October 18, 1903, MDHM, 3-23.
13.OWH to NG, September 26, 1903, MDHM, 3-23.
14.Frankfurter, “Constitutional Opinions,” 683.
15.Frank, “Learned Hand,” 685; Thayer, Constitutional Law, 12–14, 18.
16.Peckham, dissenting opinion, People v. Budd, 117 N.Y. 1 (1899), at 45, 69, 71; Schwartz, History of Supreme Court, 181.
17.Urofsky, Dissent, 86–87.
18.Slaughter-House Cases (1873).
19.Harlan, dissenting opinion, Civil Rights Cases (1883).
20.In re Jacobs, 98 N.Y. 98 (1885).
21.Schwartz, History of Supreme Court, 180.
22.Holden v. Hardy (1898).
23.OWH to HJL, October 23, 1926, H-L, 2:888.
24.Posner, How Judges Think, 120.
25.OWH to ASG, December 18, 1914, MDHM, 15-9.
26.Posner, Law and Literature, 346–47.
27.Holmes, dissenting opinion, Lochner v. New York (1905).
28.Missouri, Kansas & Texas Railway Company v. May (1904).
29.JBT quoted in Frank, “Learned Hand,” 685–86.
30.Louisville & Nashville Railroad Company v. Barber Asphalt Paving Company (1905).
31.Martin v. District of Columbia (1907); OWH to John C. H. Wu, November 4, 1923, Wu, “Letters,” 266.
32.Holmes, dissenting opinion, Union Refrigerator Transit Company v. Kentucky (1905).
33.Fiss, 1888–1910, 143; OWH to ASG, January 10, 1911, MDHM, 15-9. He repeated these views about the Sherman Act many times, for example in OWH to NG, June 28, 1915, MDHM, 3-37.
34.OWH to Franklin Ford, April 6, 1911, Burton, Progressive Masks, 84; OWH to LE, October 28, 1912, H-E, 74.
35.Fiss, 1888–1910, 138 n. 94. (“The newspaper story as to the Presdt. and me is pure fiction so far as any communication to me goes”: OWH to NG, March 21, 1904, MDHM,
3-24.)
36.OWH to NG, March 21, 1904, MDHM, 3-24; Henry Adams to Elizabeth Cameron, March 20, 1904, Ford, Letters of Henry Adams, 429.
37.OWH to John G. Palfrey, April 1, 1904, MDHM, 17-10; OWH to EC, March 18, 1904, MDHM, 14-21.
38.“White House Guests Hear Mrs. Batcheller Sing,” WP, April 4, 1904; OWH to CM, February 19, 1908, MDHM, 19-19.
39.OWH to FP, February 9, 1921, H-P, 2:63–64.
40.Theodore Roosevelt to Henry Cabot Lodge, September 4, 1906, MDHM, 22-23.
41.Walker, “Beef Trust,” 499; Swift and Company v. United States (1905).
42.OWH to ASG, February 10, 1905, MDHM, 15-8.
43.Ibid., June 15, 1908; Hudson County Water Company v. McCarter (1908).
44.Georgia v. Tennessee Copper Company (1907).
45.OWH to NG, May 30, 1908, and January 4, 1909, MDHM, 3-31.
46.OWH to ES, December 11, 1908, MDHM, 17-28.
47.OWH to CM, November 18, 1908, MDHM, 19-21; OWH to CSRS, February 1, 1908, MDHM, 17-38.
48.OWH to CM, November 18, 1908, MDHM, 19-21.
49.OWH to NG, July 23, 1904, MDHM, 3-25.
50.Fanny Holmes to OWH, n.d., OWHP, 18-19; entry for June 11, Diary, 1907, OWHP, 58-1.
51.OWH to CM, August 14, 1907, MDHM, 19-18; OWH to NG, September 15, 1907, MDHM, 3-30.
52.OWH to CM, July 8, 1907, MDHM, 19-18.
53.OWH to NG, September 15, 1907, MDHM, 3-30.
54.OWH to CSRS, October 4, 1907, MDHM, 17-38.
CHAPTER 12: 1720 Eye Street
1.OWH to NG, December 25 and November 1, 1903, MDHM, 3-23.
2.Ibid., November 1, 1903.
3.OWH to CC, June 12, 1917, Doneraile Papers, Ms 34,166(1).
4.OWH to EC, February 24, 1903, 14-21; OWH to ES, April 24, 1909, MDHM, 17-28; OWH to NG, November 1, 1903, MDHM, 3-23.
5.Hiss, Recollections, 48–49; OWH to LE, May 25, 1918, H-E, 166.
6.Derby, “Recollections,” 346–47; Sutherland, “Recollections,” 20.
7.OWH to NG, December 25, 1903, MDHM, 3-23, and July 23, 1904, MDHM, 3-25.
8.A. J. Sargent will, OWHA, 6-5; OWH to O.W.H. Upham, May 25, 1901, and account of sale of property, 12 Plympton St., Cambridge, September 13, 1901, OWHA, 6-6.
9.OWH to CSRS, March 6, 1908, MDHM, 17-38; “Honor to Justices,” WP, January 24, 1908; “Social and Personal,” WP, March 2, 1905; notes of talk with Dorothy Vaughan, May 18, 1948, MDHM, 22-27; Thompson, “Thomas Wayland Vaughan.”
10.Inventory of 1720 Eye Street, Estate of OWH, EJHC, 1-13.
11.Ibid.; Sutherland, “Recollections,” 21. Fanny listed the household pets in a letter to ES, November 9, 1909, MDHM, 17-28.
12.List of dinner guests during Washington years, OWHP, 55-9.
13.Monagan, Grand Panjandrum, 32; Donald Hiss in Louchheim, New Deal, 34; Hiss, Laughing Last, 59.
14.Canceled checks, Riggs Bank, 1902–1935, OWHP, 35-8 to 45-1; miscellaneous receipts, 1900–1935, OWHP, 30-1 to 35-7.
15.Alger Hiss interview, 19, JSMP, 1-8; James Rowe in Louchheim, New Deal, 44.
16.Peppers, “Horace Gray,” 19–21.
17.JRG, 82–83.
18.OWH to Anna K. Codman, February 15, 1903, MDHM, 14-11.
19.OWH to NG, March 2, 1903, MDHM, 3-22, and November 5, 1905, MDHM, 3-28.
20.Derby, “Recollections,” 349; OWH to FF, January 6, 1925, H-F, 178.
21.OWH to Arthur Sutherland, May 28 and April 2, 1927, quoted in Sutherland, “Recollections,” 19; OWH to CM, October 7, 1909, MDHM, 19-23.
22.Derby, “Recollections,” 349; Recollections of a Holmes Secretary, typescript, 4, WBLM.
23.Belknap, “Justice Holmes,” 10; Belknap diary entries for November 19 and October 13, 1915, quoted in Messinger, “Holmes and His Law Clerks,” 49.
24.Meeting of Holmes Secretaries: Notes of Reminiscences, 1, WBLM.
25.Monagan, Grand Panjandrum, 115; Bundy, OH, 62; Notes for a Talk on O.W.H., 2, WBLM; Sutherland, “Recollections,” 21; OWH to CM, February 25, 1912, MDHM, 19-26.
26.Notes for a Talk on O.W.H., 2, WBLM; Donald Hiss in Louchheim, New Deal, 34.
27.Hiss, Laughing Last, 54; Monagan, Grand Panjandrum, 116.
28.Biddle, Mr. Justice Holmes, 148; Donald Hiss in Louchheim, New Deal, 41.
29.Belknap, “Justice Holmes,” 3; Belknap, OH, 15–16.
30.OWH to FF, December 19, 1915, H-F, 40.
31.Bundy, OH, 62–63; Derby, “Recollections,” 352.
32.Alger Hiss to FF, December 13, 1929, Frankfurter, Papers, reel 91; LDB to FF, December 11, 1929, HBHS, no. 397.
33.OWH to FF, January 6, 1925, H-F, 178; LDB to FF, December 17, 1929, HBHS, no. 398.
34.John E. Lockwood to FF, November 5, 1928, OWHP, 58-27; Belknap, “Justice Holmes,” 3.
35.Belknap diary entry for November 9, 1915, quoted in Messinger, “Holmes and His Law Clerks,” 50; Recollections of a Holmes Secretary, typescript, 4, WBLM; Bundy, OH, 67.
36.Bundy, OH, 66; Biddle, Casual Past, 271–72.
37.Biddle, Casual Past, 272.
38.Belknap et al., “Remembrances of Holmes,” 392.
39.Biddle, Casual Past, 281; Hiss, Recollections, 49–50.
40.Hiss, Laughing Last, 54; Alger Hiss in Louchheim, New Deal, 25; John E. Lockwood to FF, May 24, 1929, Frankfurter, Papers, reel 91; H. Chapman Rose to OWH, October 23, 1932, OWHP, 59-1.
41.Messinger, “Holmes and His Law Clerks,” 53–54, 63–64 nn. 54–57.
42.Leach, Recollections, 4.
43.OWH to CM, December 18, 1910, MDHM, 19-25; OWG to ASG, April 26, 1910, MDHM, 15-8.
44.OWH to William L. Putnam, July 12, 1910, in “Judge Putnam’s Recollections,” 528–29.
45.OWH to CM, July 14, 1910, MDHM, 19-24; Monagan, Grand Panjandrum, 107; OWH to ES, July 11, 1910, MDHM, 17-28.
46.OWH to ASG, September 4, 1910, MDHM, 15-8; OWH to CM, August 31, 1910, MDHM, 19-24.
47.TCWJ, 2:250–51; OWH to LE, June 17, 1908, H-E, 35, and June 1, 1905, H-E, 16.
48.OWH to ES, September 24, 1910, MDHM, 17-28.
49.Ibid.; OWH to ASG, September 4, 1910, MDHM, 15-8, and October 14, 1911, MDHM, 15-9.
50.OWH to ASG, September 4, 1910, MDHM, 15-8; Pringle, Taft, 1:533.
51.Pringle, Taft, 1:535.
52.OWH to ASG, January 10, 1911, MDHM, 15-9; Pringle, Taft, 1:535.
53.OWH to NG, December 15, 1910, MDHM, 3-33.
54.OWH to LE, December 19, 1910, H-E, 57–58.
55.The imaginative account of Holmes’s 1909 trip to England in Novick, Honorable Justice, 293, has Fanny accompanying him. In fact she stayed home. Holmes wrote to a friend on his return to the United States, “I . . . came back in three weeks, not to be away from Mrs. Holmes longer than I could help” (OWH to Kaneko Kentaro, August 2, 1909, Kanda and Gifford, “Kaneko Correspondence,” 297).
What Fanny’s 1908 operation was for is unclear from the few letters that refer to it: Fanny Holmes to OWH, May 11, 1908, OWHP, 18-19 (“I suggest that your next visit should be on Thursday instead of Wednesday as my stitches are to come out on Wednesday”) and OWH to ES, June 24 and August 22, 1908, MDHM, 17-28 (“Mrs. Holmes is all right again. I was scared but it turned out that there was no need to be”; “Mrs. Holmes is ever so much better, though the pulldown was more lasting than I expected”).
56.OWH to Kaneko Kentaro, August 2, 1909, Kanda and Gifford, “Kaneko Correspondence,” 296; OWH to NG, September 28, 1909, MDHM, 3-32.
57.OWH to LE, December 19, 1910, H-E, 58; OWH to ASG, May 16, 1909, MDHM, 15-8.
58.OWH to CM, December 18, 1910, MDHM, 19-25.
59.Ibid.; Patrick Sheehan to OWH, March 25, 1911, H-S, 39.
60.Bernard Castletown to CC, June 3, and July 2, 1912, Doneraile Papers, Ms 34,166(3).
61.OWH to CC, April 14, 1912, Doneraile Papers, Ms 34,166(1).
62.Ibid., April 21, 1912.
63.OWH to ASG, April 5, 1913, MDHM, 15-9; OWH to NG, June 5, 1913, MDHM, 3-34.
64.OWH to NG, October 12, 1913, MDHM, 3-35; OWH to LE, Oc
tober 2, 1913, H-E, 80.
65.OWH to ASG, November 9, 1913, MDHM, 15-9.
66.OWH to ES, June 9, 1912, MDHM, 17-29.
67.Phillips, Frankfurter Reminisces, 4–5, 16, 19.
68.Ibid., 35–38; Snyder, House of Truth, 8–9.
69.Phillips, Frankfurter Reminisces, 17; OWH to HJL, November 25, 1916, and July 30, 1920, H-L, 1:37, 272; Lash, Diaries of Frankfurter, 30.
70.FF to John Chipman Gray, November 27, 1911, quoted in Snyder, House of Truth, 22.
71.OWH to FF, August 14, 1916, H-F, 56; OWH to CM, April 9, 1918, MDHM, 20-7; OWH to HJL, May 8, 1918, H-L, 1:153.
72.O’Connell and Dart, “House of Truth,” 79–81; Snyder, House of Truth, 33.
73.Phillips, Frankfurter Reminisces, 105; Snyder, House of Truth, 61.
74.Phillips, Frankfurter Reminisces, 106; Snyder, House of Truth, 1–2.
75.O’Connell and Dart, “House of Truth,” 79.
76.OWH to FF, March 27, 1917, H-F, 70; OWH to John H. Wigmore, November 19, 1915, MDHM, 18-14; OWH to LE, November 24, 1912, H-E, 75.
77.OWH to ES, November 12, 1914, MDHM, 17-29; OWH to LE, May 26, 1926, H-E, 254; OWH to CM, April 9, 1908, MDHM, 19-19.
78.OWH to LE, February 23, 1919, H-E, 183; memorandum of talk with FF, January 2, 1964, MDHM, 22-26.
79.OWH to NG, July 23, 1904, MDHM, 3-25; OWH to CM, September 28, 1919, MDHM, 20-8; OWH to NG, October 12, 1913, MDHM, 3-35; Monagan, Grand Panjandrum, 35.
80.Expense account, James Doherty, June 10, 1930, OWHP, 35-2.
81.OWH to ES, July 16, 1908, MDHM, 17-28; OWH to John G. Palfrey, July 17, 1908, MDHM, 17-10; OWH to ES, August 29, 1925, MDHM, 17-30 (the autograph letter, in OWHA, 1-15, includes a hand-drawn map of the arrangement of the property).
82.OWH to NG, June 22, 1918, MDHM, 3-38; OWH to ES, July 13, 1924, MDHM, 17-30, and July 30, 1908, MDHM, 17-28.
83.OWH to ES, September 5, 1915, MDHM, 17-29; OWH to HJL, June 11, 1920, H-L, 1:268.
84.OWH to ES, September 24, 1911, MDHM, 17-28 (Dante); OWH to CM, July 15, 1911, MDHM, 19-25 (Oxford Book); OWH to CSRS, August 4, 1914, MDHM, 17-39 (Descartes); OWH to CM, September 21, 1912, MDHM, 19-27 (Epictetus); OWH to LE, April 28, 1923, H-E, 214 (Montaigne); OWH to ES, March 9, 1923, MDHM, 17-29 (Spinoza); OWH to LE, August 19, 1909, H-E, 50 (James); OWH to FP, August 2, 1923, H-P, 2:120 (Austen).
85.OWH to LE, September 26, 1907, H-E, 31 (Tolstoy); OWH to LE, February 5, 1923, H-E, 210 (Dickens); OWH to NG, October 18, 1903, MDHM, 3-23 (French novels); OWH to EC, September 3, 1919, MDHM, 14-22 (Buchan).
Oliver Wendell Holmes Page 53
