Oliver Wendell Holmes

by Stephen Budiansky

  86.OWH to EC, November 1, 1929, MDHM, 14-23; OWH to CSRS, August 4, 1914, MDHM, 17-39.

  87.OWH to CM, October 7, 1909, MDHM, 19-23.

  88.OWH to LE, September 20, 1926, H-E, 261; OWH to Leslie Scott, October 13, 1907, MDHM, 17-31.

  CHAPTER 13: Holmes Dissenting

  1.WHT to Horace H. Lurton, May 22, 1909, quoted in Pringle, Taft, 1:529–30.

  2.Pringle, Taft, 2:854.

  3.JRG, 9.

  4.Acheson, Memoir, 70; Hughes, Autobiographical Notes, 171.

  5.JRG, 40–43; Friedman and Israel, Justices of Supreme Court, 3:1973–74.

  6.OWH to FP, February 24, 1923, H-P, 2:113; OWH to FF, December 9, 1924, H-F, 177.

  7.OWH to CM, February 18, 1911, MDHM, 19-25.

  8.OWH to ASG, December 18, 1914, MDHM, 15-9; OWH to NG, January 4, 1909, and Christmas 1908, MDHM, 3-31.

  9.OWH to FP, February 6, 1926, H-P, 2:175; OWH to FF, November 30, 1919, H-F, 77; Hughes, Autobiographical Notes, 173.

  10.OWH to FP, February 6, 1926, H-P, 2:175; OWH to NG, May 5, 1928, MDHM, 4-19.

  11.Belknap, “Justice Holmes,” 5; Friedman and Israel, Justices of Supreme Court, 3:1773; Acheson, Memoir, 66.

  12.JRG, 69; Acheson, Memoir, 66; OWH to HJL, November 23, 1926, H-L, 2:896, and January 4, 1925, H-L, 1:693.

  13.OWH to ASG, July 5, 1914, MDHM, 15-9; OWH to CM, January 3, 1912, MDHM, 19-26.

  14.OWH to FF, October 24, 1920, H-F, 95.

  15.Tip-in notes, First National Bank of Decatur v. Henry, No. 221, bound volume of opinions, 1907 term, OWHP.

  16.OWH to William H. Moody, September 30, 1914, quoted in JRG, 234.

  17.Ibid.; JRG, 232–37.

  18.No. 481, bound volume of opinions, 1913 Term, OWHP.

  19.McCormack, “Law Clerk’s Recollections,” 714.

  20.Zane, “Legal Heresy,” 431, 436 n. 17, 438–41 n. 23.

  21.Hughes, Autobiographical Notes, 173.

  22.OWH to NG, March 18, 1911, MDHM, 3-34.

  23.Gompers v. United States (1914).

  24.OWH to LE, May 20, 1921, H-E, 195; OWH to FP, July 15, 1906, H-P, 1:130; Acheson, Memoir, 61–62.

  25.Acheson, Memoir, 62; Standard Oil Company of New Jersey v. United States (1911); OWH to NG, March 18, 1911, MDH, 3-34.

  26.OWH to LE, May 20, 1921, H-E, 195–96; OWH to ASG, June 7, 1914, MDHM, 15-9.

  27.OWH to CSRS, April 16, 1914, MDHM, 17-39.

  28.OWG to NG, April 22, 1914, MDHM, 3-35.

  29.JRG, 946; Post, “Dissent in Taft Court,” 1284, 1349 n. 252.

  30.ZoBell, “Division of Opinion,” 190–94; Urofsky, Dissent, 40, 47–49; Henry Billings Brown quoted in ibid., 10.

  31.Sunstein, “Unanimity and Disagreement,” 773–74, 778–79.

  32.King, Fuller, 339–41; Post, “Dissent in Taft Court,” 1386; Cushman, “Inside Taft Court,” 74–76.

  33.July 6, 1924, B-F, 330; Holmes, dissenting opinion, Federal Trade Commission v. Beech-Nut Packing Company (1922).

  34.July 1 and 3, 1923, B-F, 314, 317.

  35.OWH to HJL, November 10, 1923, H-L, 1:560; Post, “Dissent in Taft Court,” 1350 n. 255.

  36.JRG, 240; McKenna, dissenting opinion, Marcus Brown Holding Company, Inc. v. Feldman (1921); McKenna, dissenting opinion, Block v. Hirsh (1921); McKenna, dissenting opinion, The Western Maid (1922).

  37.JRG, 239–41.

  38.JRG, 238; OWH to FF, June 22, 1920, H-F, 94; tip-in notes, Southern Pacific Company v. Jensen, No. 280, bound volume of opinions, 1916 Term, OWHP, quoted in JRG, 238–39.

  39.OWH to NG, May 5, 1928, MDHM, 4-19; OWH to CM, January 27, 1928, MDHM, 20-26.

  40.Hughes quoted in Urofsky, Dissent, 12.

  41.Freedman, “Habeas Corpus,” 1483–84.

  42.Ibid., 1484.

  43.OWH to CC, November 28, 1914, OWHC, 1-5; “Justice Holmes’s Opinion,” NYT, November 27, 1914.

  44.OWH to CM, July 6, 1915, MDHM, 20-2.

  45.Holmes, dissenting opinion, Frank v. Mangum (1915).

  46.OWH to LE, April 10, 1915, H-E, 112.

  47.OWH to NG, February 21, 1915, MDHM, 3-37; OWH to John Chipman Gray, February 21, 1915, MDHM, 3-10; OWH to CM, February 28, 1915, MDHM, 20-2.

  48.“Police News Notes of a Day,” WP, June 23, 1915; “Deaths Reported,” WP, June 25, 1915; OWH to CM, July 6, 1915, MDHM, 20-2.

  49.OWH to CM, July 6, 1915, MDHM, 20-2; OWH to ES, July 13, 1915, MDHM, 17-29.

  50.Leo Frank to OWH, July 10, 1915, OWHP, 17-26.

  51.Memorandum of talk with FF, August 10, 1964, MDHM, 22-26.

  52.OWH to CM, July 6, 1915, MDHM, 20-2; May 1, 1910, MDHM, 19-24; February 28, 1915, MDHM, 20-2.

  53.Snyder, House of Truth, 101–2.

  54.OWH to ES, March 10, 1916, MDHM, 17-29; OWH to CM, March 10, 1916, MDHM, 20-4.

  55.OWH to ES, March 7, 1915, MDHM, 17-29; Snyder, House of Truth, 3; OWH to ES, November 12, 1914, MDHM, 17-29.

  56.OWH to HJL, September 7, 1916, H-L, 1:17; Editorial Notes, New Republic, January 30, 1915, 4; Editorial Notes, New Republic, April 24, 1915, 290.

  57.“To Justice Holmes,” New Republic, March 11, 1916, 156.

  58.Urofsky, Brandeis, 73–74, 154.

  59.Ibid., 116–17, 134–35, 281–83, 451.

  60.Ibid., 438, 445.

  61.OWH to CSRS, May 13, 1916, MDHM, 17-39.

  62.Urofksy, Brandeis, 459.

  63.Ibid., 174, 267.

  64.Ibid., 219–20.

  65.Peppers, “Brandeis and His Clerks,” 73–74.

  66.Acheson, Memoir, 47; Marquis Childs interview, LJPP, 1-5; Peppers, “Brandeis and His Clerks,” 77.

  67.HJL to OWH, April 19, 1924, H-L, 1:612; LDB to HJL, February 29, 1920, MDHM, 25-18.

  68.Urofsky, Brandeis, 565–66; Mary Donnellan interview, LJPP, 1-10.

  69.OWH to CC, August 27, 1916, Doneraile Papers, Ms 34,166(1).

  70.Memorandum of conversation with Austin Clark, May 1948, MDHM, 22-27. Fanny’s anti-Semitism was noted by several of their friends. Charlie Curtis’s sister-in-law wrote to Holmes after Fanny’s death, “Whenever I find myself talking to a Jew whatever kind of passport he may carry I laugh as I remember what dear Mrs. Holmes used to say to you. You said, ‘She calls them Keiks and how can I bother with them, but I never notice their noses, it’s their conversation I like!!!’ It’s so true for surely they talk better than any lot of people in the world”: Eleanor Roelker Palffy to OWH, March 7, 1931, OWHP, 21-16.

  71.OWH to NG, March 5, 1921, MDHM, 4-3.

  72.JRG, 353.

  73.Federal district judge Robert L. Carter, who was a law student at Howard University in 1938 when the school’s dean argued a racial discrimination case before the Court, attended the oral argument and witnessed McReynolds’s behavior: Robert L. Carter, “The Long Road to Equality,” The Nation, May 3, 2004. The wife of Erwin Griswold, when he was a young attorney working in the solicitor general’s office, was present in Court to see McReynolds’s similar treatment of Mabel Walker Willebrandt, who was assistant U.S. attorney general from 1921 to 1929: Harriet Ford Griswold, “Justices of the Supreme Court of the United States I Have Known,” Supreme Court Historical Society Quarterly, 8:4 (1987): 7–8.

  74.Jantzen, “McReynolds and Group Photograph”; JRG, 354.

  75.Tip-in notes, Evans v. Gore, No. 654, bound volume of opinions, 1919 term, OWHP, quoted in JRG, 354.

  76.JRG, 353; July 3, 1923, B-F, 317.

  77.Bunting v. Oregon (1917); Phillips, Frankfurter Reminisces, 101–2.

  78.OWH to HJL, January 12, 1921, H-L, 1:304.

  79.OWH to FP, June 14, 1918, H-P, 1:267.

  80.OWH to Lady Askwith, September 18, 1914, MDHM, 13-1.

  81.OWH to CM, August 23, 1914, MDHM, 19-29.

  82.Otto von Gierke to OWH, October 1914, OWHP, 17-28; OWH to CSRS, November 12, 1914, MDHM, 17-39.

  83.OWH to Margaret Bevan, August 19, 1913, OWHA, 1-1; OWH to CSRS, November 12, 1914, MDHM, 17-39.

  84.OWH to FF, March 27, 1917, H-F, 70; Sutherland, “Recollections
,” 22.

  85.OWH to CM, April 9, 1918, MDHM, 20-7; OWH to LE, March 10, 1918, H-E, 163, and September 2, 1914, H-E, 100.

  86.OWH to CM, April 9, 1918, MDHM, 20-7.

  87.OWH to LE, June 13 and July 11, 1918, H-E, 167, 168.

  CHAPTER 14: Free Speech

  1.Gunther, Learned Hand, 137; Snyder, House of Truth, 114.

  2.Gunther, Learned Hand, 7–8, 27.

  3.Ibid., 2, 8.

  4.Ibid., 8, 79, 156, 159, 504.

  5.Masses Publishing Company v. Patten, 244 F. 535 (S.D.N.Y. 1917).

  6.LH to Zechariah Chafee Jr., December 3, 1920, in Gunther, “Hand and First Amendment,” 768; Masses Publishing Company v. Patten, 246 F. 24 (2d Cir. 1917).

  7.Gunther, “Hand and First Amendment,” 731–32; LH to OWH, June 22, 1918, in ibid., 756.

  8.OWH to Franklin Ford, November 21, 1915, Burton, Progressive Masks, 109; OWH to HJL, June 1, 1927, H-L, 2:948.

  9.LH to OWH, June 22, 1918, in Gunther, “Hand and First Amendment,” 755–56.

  10.OWH to LH, June 24, 1918, in ibid., 756–57.

  11.LH to Charles P. Curtis Jr., January 14, 1954, Hand, Papers, 86-21.

  12.Kramnick and Sheerman, Laski, 87.

  13.Ibid., 66–68.

  14.HJL to OWH, October 23, 1927, H-L, 2:990; OWH to FP, February 18, 1917, H-P, 1:243; HJL to OWH, September 10, 1927, H-L, 2:979; HJL to OWH, December 28, 1920, H-L, 1:302. The reviews of the Holmes-Laski letters by Abel, Curtis, and West all called attention to Laski’s embroidery of the truth.

  15.Shils, Portraits, 192–93.

  16.Curtis, Review of Holmes-Laski, 268; entry for January 22, 1931, Webb, Diaries.

  17.OWH to HJL, January 15, 1925, H-L, 1:702, and October 24, 1928, H-L, 2:1105; HJL to OWH, November 13, 1928, H-L, 2:1110.

  18.Kramnick and Sheerman, Laski, 220–21.

  19.Woolf, Downhill, 229–30.

  20.Shils, Portraits, 200.

  21.OWH to FP, February 18, 1917, H-P, 1:243. On Laski’s marriage and estrangement from his family, see Kramnick and Sheerman, Laski, 46–47, 185–87; HJL to OWH, July 18, 1920, H-L, 1:271.

  22.OWH to HJL, June 25, 1918, H-L, 1:158; June 28, 1918, MDHM, 4-38; and August 10, 1918, H-L, 1:162; HJL to OWH, August 27, 1918, H-L, 1:163.

  23.Chafee, “Laski and the Law Review,” 1399–1400.

  24.Kramnick and Sheerman, Laski, 91–94, 101–4.

  25.HJL to OWH, July 5, 1918, H-L, 1:159–60; OWH to HJL, July 7, 1918, H-L, 1:160–61.

  26.OWH to HJL, June 25 and August 10, 1918, H-L, 1:158, 162. On August 19 Holmes wrote Laski, “Don’t forget to send me the law book you mentioned containing accounts of the fundamental theories of various who philosophized about the law” (MDHM, 4-38). Holmes’s 1918 reading list identifies the book in question: “(F. Gény.) Science et technique en droit privé positif. Vol. 2. Article written on Natural Law (August)” (Holmes, Black Book, 125).

  27.OWH to FP, October 31, 1918, H-P, 1:271; HJL to OWH, August 27, 1918, H-L, 1:163.

  28.Holmes, “Natural Law,” 41, 42.

  29.Ibid., 40.

  30.OWH to LE, September 28, 1918, H-E, 171–72; OWH to HJL, September 18, 1918, H-L, 1:164–65.

  31.OWH to FP, October 31, 1918, H-P, 1:270.

  32.Healy, Great Dissent, 88–91; Debs v. United States (1919).

  33.Commonwealth v. Davis, 162 Mass. 510 (1894); McAuliffe v. Mayor and Board of Aldermen of New Bedford, 155 Mass. 216 (1892).

  34.Burt v. Advertiser Newspaper Company, 154 Mass. 238 (1891); Cowley v. Pulsifer, 137 Mass. 392 (1884).

  35.Commonwealth v. Blanding, 20 Mass. 304 (1825).

  36.Ibid., at 313–14, 317.

  37.Peck v. Tribune Company (1909).

  38.“I am catspawed by Brandeis to do another dissent on burning themes”: OWH to HJL, December 3, 1918, H-L, 1:176. The only important case Holmes wrote a dissent to that month was Baltzer.

  39.Tip-in notes, Baltzer v. United States, No. 320, bound volume of opinions, 1918 term, OWHP.

  40.Ibid., handwritten returns of the justices. Novick, “Unrevised Holmes,” 332, interprets the first two words of White’s note to read “Please stall,” which not only seems unlikely on its face but makes no semantic or syntactical sense with the words that follow.

  41.“Orders New Trial in Espionage Cases,” WP, December 17, 1918. Healy, Great Dissent, 73–75, makes a circumstantial but persuasive argument that Brandeis leaked word of Holmes’s planned dissent.

  42.OWH to CM, April 4, 1919, MDHM, 20-8.

  43.OWH to LH, February 25, 1919, in Gunther, “Hand and First Amendment,” 758.

  44.Commonwealth v. Kennedy, 170 Mass. 18 (1897); Commonwealth v. Peaslee, 177 Mass. 267 (1901).

  45.Schenck v. United States (1919).

  46.HJL to OWH, March 18, 1919, H-L, 1:191; LH to OWH, [late March], 1919, in Gunther, “Hand and First Amendment,” 758–59.

  47.Freund, “Debs Case”; OWH to Herbert Croly, enclosure in OWH to HJL, May 13, 1919, H-L, 1:202–4.

  48.Gunther, “Hand and First Amendment,” 745–46; Chafee, “Freedom of Speech.”

  49.Auerbach, “Chafee,” 521–22.

  50.Chafee, “Speech in War Time,” 944.

  51.LH to Zechariah Chafee Jr., January 2, 1921, in Gunther, “Hand and First Amendment,” 770.

  52.OWH to CM, April 4, 1919, MDHM, 20-8.

  53.OWH to FP, April 27, 1919, H-P, 2:11; OWH to LE, April 5, 1919, H-E, 184.

  54.“36 Were Marked as Victims by Bomb Conspirators”; “Sees Bomb Sent in Revenge,” NYT, May 1, 1919.

  55.OWH to LE, May 22, 1919, and March 25, 1927, H-E, 186, 265; OWH to FP, June 17, 1919, H-P, 2:15.

  56.Kramnick and Sheerman, Laski, 149; Healy, Great Dissent, 241; Snyder, House of Truth, 301.

  57.OWH to HJL, April 4, 1919, H-L, 1:193. Some of Holmes’s words were omitted by Mark Howe in the published version of this letter: see the complete typescript in MDHM, 5-1.

  58.FF to OWH, May 15, 1920, H-F, 89; HJL to OWH, May 11, 1919, H-L, 1:201.

  59.Kramnick and Sheerman, Laski, 128; “The Boston Police Strike,” Harvard Alumni Bulletin, October 23, 1919, 106.

  60.HJL to OWH, May 15, 1919, H-L, 1:204; OWH to HJL, May 13 and 18, 1919 (quoting his letter to the Law School Association in support of Pound), H-L, 1:202, 204; OWH to A. Lawrence Lowell, June 2, 1919, quoted in H-L, 1:211 n. 2; Lowell to OWH, June 10, 1919, quoted in Snyder, House of Truth, 286.

  61.OWH to HJL, May 18, 1919, H-L, 1:204; OWH to NG, September 2, 1919, MDHM, 3-39; OWH to HJL, June 11, 1920, H-L, 1:268.

  62.Kramnick and Sheerman, Laski, 134–35; Healy, Great Dissent, 185–87.

  63.OWH to HJL, October 26, 1919, H-L, 1:217.

  64.Dean Acheson heard the story at the time from his Yale and Harvard Law classmate Stanley Morrison, who was Holmes’s secretary that year and sat in the adjoining study while the discussion was taking place. In his memoirs (Acheson, Memoir, 119), Acheson recalled two of the justices as Pitney and Van Devanter. In a letter to Alexander Bickel, which provided additional details of the meeting, he identified the third as McKenna (Acheson to Bickel, June 2, 1960, Acheson, Papers, 3-34).

  65.Menand, Metaphysical Club, 430.

  66.OWH to Chafee, June 12, 1922, quoted in Healy, Great Dissent, 243.

  67.Healy, Great Dissent, 218–25; Wigmore, “Abrams,” 545, 552.

  68.Smith, Chafee, 51–55; Urofsky, Brandeis, 556; Kramnick and Sheerman, Laski, 138–40; Harvard Lampoon, January 16, 1920.

  69.OWH to FF, February 11, 1920, H-F, 82; Kramnick and Sheerman, Laski, 140–41; LDB to HJL, February 29, 1920, MDHM, 25-18; HJL to OWH, March 28, 1920, H-L, 1:255.

  70.OWH to HJL, March 31, 1920, H-L, 1:256.

  CHAPTER 15: Taft’s Court

  1.OWH to ES, September 24, 1910, MDHM, 17-28; OWH to HJL, May 12, 1927, H-L, 2:942.

  2.OWH to HJL, January 6, 1923, H-L, 1:469.

  3.Ibid. (“bullies me”); OWH to HJL, October 9, 1921, H-L, 1:374 (“great comfort”); OWH to ASG, January 10, 1911, MDHM, 15
-9 (“imbecile statutes”); OWH to HJL, March 4, 1920, H-L, 1:249 (“go to Hell”).

  4.McReynolds, dissenting opinion, Arizona Employers’ Liability Cases (1919).

  5.Acheson, Memoir, 67–68.

  6.Holmes, concurring opinion, Arizona Employers’ Liability Cases (1919).

  7.Old Colony Trust Company statements, 1904–1929, OWHP, 48-1 to 54-6; canceled checks, personal, Riggs National Bank, 1902–1935, OWHP, 35-8 to 45-1; LDB to FF, May 25, 1927, HBHS, no. 280; OWH to LE, April 26, 1918, H-E, 164.

  8.OWH to Lady Askwith, September 17, 1919, MDHM, 13-1. Holmes refers to reading Malthus for the first time in OWH to CSRS, August 23, 1914, MDHM, 17-39. Malthus’s Essay on Population is on his 1914 reading list (Holmes, Black Book, 129).

  9.OWH to HJL, August 12, 1923, MDHM, 5-19.

  10.Derby, “Recollections,” 352; OWH to Morris R. Cohen, November 23, 1919, Cohen, “Correspondence,” 18 and n. 34; OWH to FF, March 21, 1928, H-F, 225.

  11.OWH to LE, May 14, 1916, H-E, 128.

  12.OWH to ES, March 9, 1925, MDHM, 17-30; OWH to NG, March 5, 1921, MDHM, 4-3.

  13.OWH to HJL, March 10, 1921, H-L, 1:318; OWH to EC, March 17, 1921, MDHM, 14-22.

  14.OWH to LE, February 23, 1919, H-E, 182–83.

  15.OWH to NG, November 30, 1921, MDHM, 4-5; “Justice Holmes,” New Republic, February 2, 1921, 294; “Mr. Justice Holmes,” New Republic, March 9, 1921, 36; OWH to HJL, March 10, 1921, H-L, 1:318.

  16.Notes of talk with LH, June 11, 1942, MDHM, 22-7; LH to Arthur Train, May 29, 1941, Hand, Papers, 81-7; LH to Charles P. Curtis Jr., February 14, 1954, ibid., 86-21; OWH to ES, March 15, 1921, MDHM, 17-29.

  17.OWH to ASG, March 26, 1919, MDHM, 15-9; JRG, 478.

  18.OWH to ES, February 7, 1912, MDHM, 17-28.

  19.Mason, Taft, 18–19, 76–77.

  20.OWH to FP, July 11, 1921, H-P, 2:72; OWH to HJL, May 27, 1921, H-L, 1:339; Post, “Dissent in Taft Court,” 1276–77.

  21.Pringle, Taft, 2:997–99.

  22.Bundy, OH, 64; OWH to NG, June 28, 1931, MDHM, 4-27.

  23.Mason, Taft, 198; WHT to Willis Van Devanter, December 26, 1921, quoted in Post, “Dissent in Taft Court,” 1311.

  24.Lee, Taft, 8:xxii. Part of the increased percentage was almost certainly due to the elimination from the docket after 1925 of the large number of uncontroversial cases the Court had easily disposed of unanimously: see Post, “Dissent in Taft Court,” 1336–38.