by Adam Cohen
Holmes did not let any joy he might have felt over his impending nuptials interfere with his legal career. As the wedding drew near, he continued his frenetic work pace. Shortly before the wedding ceremony, Holmes’s coeditor at the American Law Review stepped down, leaving him to edit it alone. Holmes’s journal entry for June 17, 1872, the day he was married, indicates how near work always was to his mind: “[June] 17 married. Sole editor of Law Rev.”
The Holmeses’ marriage would prove to be a close and enduring one. The union did not produce children, an absence that prompted a fair amount of conjecture but no firm answers. Fanny, who suffered from rheumatic fever, may have had difficulty conceiving. Holmes suggested on more than one occasion that he and Fanny were childless by choice. He told his first biographer that he had come to the conclusion that this was not the sort of world into which he wanted to bring children. He offered up another perspective in a letter to a friend: “I am so far abnormal that I am glad I have” no children.
In 1874 Holmes took his wife to Europe, and they retraced some of the travels he had done on his own. The trip reminded Fanny, who often preferred to stay at home when Holmes went out, why she did not like to socialize. The two-week ocean voyage from New York to Liverpool irritated her, with its choppy seas and enforced proximity to people she disliked. On arriving in London, she was confronted with hosts she considered inhospitable and food she found odd. She dismissed Lady Belper, who invited Holmes back for dinner, as a “twinkling hippopotamus.”
Holmes was now doing a considerable amount of writing about the law, and in his legal analysis he was beginning to express more of his views about the world. In 1873 he published an article titled “The Gas-Stokers’ Strike” in the American Law Review. In it, he analyzed the recent prosecution of gas stokers’ union leaders for an illegal strike that left London in darkness. Progressives insisted the law used against the union was “class legislation,” but Holmes defended it. The “law of human existence,” he argued, is “the struggle for life”—and that struggle is a selfish one. “In the last resort, a man rightly prefers his own interests to that of his neighbors.” There was nothing unusual about the antistrike law, as Holmes saw it: all legislation is “class legislation” because it inevitably reflects the interests of the class in power when it was enacted. Legislation, “like every other device of man or beast,” he argued, “must tend in the long run to aid the survival of the fittest.”
Holmes’s gas-stokers essay signaled that he was aligning himself with the ascendant social Darwinist movement. It was not just his use of the phrase “survival of the fittest,” which Herbert Spencer had coined about a decade earlier, but the whole worldview Holmes expressed. His claim that the “law of human existence” was a selfish “struggle for life” was similar to Spencer’s contention that nature was a battle in which the “creature not energetic enough to maintain itself must die.”
Applying this principle to the London strike, Holmes saw a set of economic classes and subclasses, including the gas stokers and the companies that employed them, locked in a brutal, life-or-death battle. That was the law of nature, as he saw it: life produced winners and losers. Holmes made clear that his sympathies lay with the winners, and he had little patience for the utilitarian idea that the goal of legislation should be to promote “the greatest good for the greatest number.” Holmes asked:
Why should the greatest number be preferred? Why not the greatest good of the most intelligent and most highly developed? The greatest good of a minority of our generation may be the greatest good of the greatest number in the long run.
With this argument that favoring the “most intelligent and most highly developed” could yield rewards in future generations, Holmes began to veer subtly but unmistakably from social Darwinism to eugenics.
There was likely no single source for the pitiless worldview that Holmes was beginning to express. The cynicism instilled on the bloody battlefields of the Civil War was no doubt part of it. His Boston Brahmin upbringing may have contributed, with his family’s and his class’s conviction that they were the highest caste, perhaps even the closest to God, as the Brahmins of India were believed to be.
Holmes’s dark vision may have had even deeper roots. After all, the friend who told his brother that he saw something profoundly wrong with Holmes’s character was not just any companion of youth, but William James, who would later be called “the father of American psychology.” James detected something “cold-blooded” in the young Holmes. Whatever its source, the personal philosophy Holmes was beginning to reveal was unsentimental and power centered. It held that whoever won dominance in the social order would naturally use their position in ruthless pursuit of their own interests—and they were right to do so.
• • •
In 1878 a federal district court judgeship opened up in Boston. It was a rare occurrence, and Holmes’s social networks mobilized on his behalf. His old friend John Gray and his Harvard classmate Charles Cotesworth Beaman, among other prominent men, did what they could. But George Frisbie Hoar, a powerful Republican senator from Massachusetts, had his own candidate, and Senator Hoar’s influence with President Rutherford B. Hayes proved decisive.
Holmes soon received an honor of a different sort when he was invited to give the prestigious Lowell Lectures. The Lowell Institute, which had been funded by the estate of the textile magnate John Lowell Jr., was one of Brahmin Boston’s leading cultural organizations, offering programming on significant topics to enlighten the public. Holmes chose as the subject of his lectures the development of the “common law,” the judge-made legal doctrines that existed in all areas of the law. Over twelve nights in the fall and winter of 1880, Holmes offered his interpretation of the common law, covering criminal law, torts, and other fields.
Holmes’s Lowell Lectures were published as The Common Law the following March. The timing was fortuitous. Holmes believed a man should achieve distinction before he turned forty, perhaps influenced by the fact that his father had become the dean of Harvard Medical School at thirty-eight. It was likely no coincidence his book came out five days before his fortieth birthday. The Common Law was a bold break from the legal analysis of its time. Holmes rejected the widespread fascination with “natural law,” the view that law reflected timeless, unchanging absolutes handed down from above. He insisted the law was not a “brooding omnipresence in the sky,” as he would later express it, arguing instead that humans and their institutions had created it over time.
The Common Law also argued against what Holmes saw as the legal system’s excessive reliance on logic and abstract legal rules. Law “cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics,” he wrote. In the book’s most famous line, he explained, “The life of the law has not been logic—it has been experience.”
With the success of The Common Law—which would be hailed by its admirers as the most important legal book by an American, and “a landmark in intellectual history”—Holmes turned further away from the practice of law. In a few years, he would tell an audience of Harvard undergraduates what he really thought of the legal profession, calling it a “greedy watch for clients and practice of shopkeepers’ arts” mixed with “mannerless conflicts over often sordid interests.”
In 1882 Holmes finally left private practice to become a professor at Harvard Law School. The school did not have funding for the position, but Holmes’s elite social class came to his aid once again. After being approached by Louis Brandeis, a public-spirited lawyer who was a friend of Holmes’s, Samuel Weld, a Boston Brahmin whose family had strong Harvard ties, contributed the whole amount.
Holmes was glad to be out of the practice of law, but he found the life of a full-time professor less than he had hoped. If the law firm had been too grubby a part of the real world, as he told the Harvard students, academia was too far removed. He would later try to dissuade a friend from joining the law schoo
l faculty. “Academic life is but half life,” he wrote. “It is withdrawal from the fight in order to utter smart things that cost you nothing except the thinking them from a cloister.”
In December 1882, not long after Holmes arrived at the law school, another chance to become a judge presented itself. In the final weeks of Governor John Davis Long’s term, a vacancy had opened up on Massachusetts’s highest court. At the urging of Holmes’s former law partner George Shattuck, the governor appointed Holmes, making him the Supreme Judicial Court’s youngest member. Holmes’s hasty departure from the law school in the middle of his first year left hard feelings. His former law partner James Bradley Thayer, who was now on the faculty, conceded that Holmes had the legal right to leave, but wondered “what shall be said of his sense of what is morally admissible—of his sense of honor.”
On the Supreme Judicial Court, Holmes heard a wide variety of civil and criminal cases, and it did not take long for his views on the law to emerge. They were, it turned out, not far from the ones he expressed in his gas-stokers article. He generally sided with the most powerful organizations or individuals, on the theory that they should be allowed to use their power as they saw fit.
This philosophy often led Holmes to take conservative positions, but not always. In Commonwealth v. Perry, the court reversed the conviction of Josiah Perry, a textile mill owner, under a law that made it illegal to withhold weavers’ wages for flaws in their work. The majority ruled that the conviction violated the constitutional right of freedom of contract, but Holmes dissented. In his view, the weavers had enough power to get the legislature to pass a law protecting them, and the courts should not interfere with its operation.
Holmes’s Perry dissent looked, on the surface, like a liberal stand—one analyst even called it his “first blow for the Massachusetts trade unions.” But Holmes had little sympathy for the workers, and he made clear in his dissent that, when it came to the substance of the weavers’ dispute, “I know nothing about the matter one way or the other.” His concern was for legislatures, and those who lobbied them successfully—and his instinct was to let them do what they wanted without judicial interference.
Holmes, who would later be lionized as a champion of freedom of expression, was no great protector of free speech in his years on the Supreme Judicial Court. In a major case about the speech rights of public employees, McAuliffe v. Mayor of New Bedford, Holmes was, characteristically, more interested in power than speech. A police officer sued when the city of New Bedford fired him for off-duty political activity. To Holmes, this was the sort of thing public employers had the right to do. In a much-quoted aphorism, Holmes said the officer “may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”
The logic behind the decision was “the greater power includes the lesser.” Holmes believed that since New Bedford had the right to fire the officer, it also had the right to do anything less—including preventing him from speaking. It was an approach Holmes would use often, though it has been criticized for giving the government almost limitless authority. If the city’s power to fire includes every “lesser” power with respect to workers, that leaves workers with almost no rights at all.
Holmes’s years on the Supreme Judicial Court were not a joyful time for him and Fanny. The workload on the court was heavy, and Holmes labored away on his cases, rarely taking time off to socialize. “I have known and done almost nothing but law,” Holmes wrote to his British friend Sir Frederick Pollock. Fanny, who had suffered a serious bout of rheumatic fever, also stayed close to home.
In 1897 Holmes published his second book, The Path of the Law. In it, he argued that the law should not be a reflection of moral values, a belief he had been refining since his writings on the gas stokers. Holmes believed that in the legal system there was too much “confounding morality with law.” Lawyers and judges were too inclined to use morally tinged words such as “rights,” “duties,” and “malice.” Holmes argued for a new legal terminology that would “convey legal ideas uncolored by anything outside the law.” He also argued that judges should not base their decisions on their sense of what would be best for society—or resort to what some would later call “judicial activism.” He was troubled that “people who no longer hope to control the legislatures” were looking instead “to the courts as expounders of the constitutions.”
Holmes was named chief justice of the Supreme Judicial Court in 1899. The promotion gave him administrative control over the court’s workings, and a more prestigious title, but the cases remained what they had always been: disputes that mattered a great deal to the parties but generally lacked larger significance. Holmes described the caseload as “trifling and transitory,” and the lawyers’ arguments did not always hold his interest. “As we don’t shut up bores, one has to listen to discourses dragging slowly along after one has seen the point and made up one’s mind,” Holmes complained in a letter to a friend. He noted that he was writing the letter from the bench “as I sit with my brethren”—adding, “I hope I shall be supposed to be taking notes.”
Holmes had long dreamed of serving on the Supreme Court, something he confided to a cousin before his marriage. As the highest-ranking state court judge in Massachusetts, he would be a plausible nominee, but there was an obstacle in his way. The court already had one justice from Boston, Horace Gray, and it was unlikely a president would name a second one.
In 1901 word began to circulate that Gray was ailing and would soon resign. That was good news for Holmes, but the bad news was that President William McKinley was reportedly looking to his secretary of the navy, John Davis Long, the former Massachusetts governor, for guidance on filling the seat, and Long was promoting Alfred Hemenway, his former law partner. Hemenway was in fact offered the seat, and he accepted. Holmes was now sixty, and with the Boston seat about to be filled by a new justice, his chances of ever being appointed to the Supreme Court appeared to be over.
On September 6, 1901, before McKinley could nominate Hemenway, he was shot by an assassin. When Leon Czolgosz, a Polish American anarchist, fired on the president at the Pan-American Exposition in Buffalo, he revived Holmes’s dreams of serving on the Supreme Court. It now fell to the new president, Theodore Roosevelt, to fill the seat. Roosevelt was part of Holmes’s world, or close to it, and Holmes had the perfect emissary to reach out to him.
Once again, Brahmin Boston played a pivotal role in Holmes’s rise, this time in the form of Massachusetts senator Henry Cabot Lodge. Holmes and Lodge were old friends, who had in many ways led parallel lives. Lodge had also attended T. Russell Sullivan’s boys’ school, Mr. Dixwell’s Private Latin School, Harvard College, and Harvard Law School. The two men had spent summers together on the North Shore, the coastal towns north of Boston that A Handbook of New England called “the favorite residential resort of Boston ‘Brahmins’” and a place where “one must dress for dinner.” Holmes and Lodge were also, as it happened, distant relatives: both men’s mothers were Cabots.
Lodge, in turn, was close to Roosevelt, and he lobbied the new president heavily on behalf of Holmes. Roosevelt was said to be an admirer of Holmes’s writings, in particular The Soldier’s Faith, which was in keeping with his own enthusiastic views about war. The close connections among all three men made Lodge’s work a good deal easier. Roosevelt was not himself a Brahmin, but his beloved first wife, Alice, had been born in Chestnut Hill, Massachusetts, the daughter of George Cabot Lee, a wealthy Brahmin banker. Holmes, Lodge, and Roosevelt had something else in common, besides their ties to Brahmin society, and the Cabot family specifically: all three were alumni of Harvard’s Porcellian Club.
Horace Gray, the ailing justice from Boston, held on until the summer, but he finally resigned in July. On August 11 Roosevelt announced that he was nominating Holmes to fill the vacancy. The choice of Holmes was not met with universal approval. Some observers objected to his idiosyncratic record. In an
editorial headlined “Remaking the Supreme Court,” the New York Evening Post said Holmes had “been more of a ‘literary feller’ than one often finds on the bench,” with “a strong tendency to be ‘brilliant’ rather than sound.” On August 12 the Boston Evening Transcript predicted “his striking originality will help . . . when it does not hinder.” Holmes found what he saw as the “incompetence and inadequacy” of many of the reactions to his nomination to be “annoying.” He did not need to worry about Senate confirmation: the vote to confirm him, on December 4, was unanimous.
To Holmes, ascending to the Supreme Court just felt right. In a letter to Lady Georgina Pollock, the wife of Sir Frederick, Holmes described “the president’s choice of me” as “a reward for much hard work.” There was more than a little self-flattery to that analysis. Though Holmes had worked hard, Boston Brahmin influence had propelled his career at every turn, from the schools he attended, to the law firm he joined, to his Harvard professorship, to his judicial appointments. Perhaps Holmes could not see it, but The Common Law and The Path of the Law played less of a role in securing his seat on the court than the extraordinary influence of his social class.
• • •
Holmes put his Boston life behind him and moved to Washington. On December 8 he reported for work at the Supreme Court’s dingy offices in the United States Capitol. He heard oral arguments in his first case and, since the justices did not have chambers in the court’s crowded offices, brought his work home with him to the hotel room in which he and Fanny were staying.
