by Adam Cohen
He left college before: Howe, Shaping Years, 68.
He had been elected class poet: Baker, Justice from Beacon Hill, 100; Howe, Shaping Years, 76.
Holmes joined: Baker, Justice from Beacon Hill, 107, 110.
first lieutenant: Howe, Shaping Years, 86; Novick, Honorable Justice, 39.
On a stop: Richard Miller, Harvard’s Civil War: A History of the Twentieth Massachusetts Voluntary Infantry (Lebanon, NH: University Press of New England, 2005), 46; Novick, Honorable Justice, 39.
The regiment was assigned: White, Justice Oliver Wendell Holmes, 51.
On October 20: Ibid., 52; Novick, Honorable Justice, 44–45.
The Union men: Novick, Honorable Justice, 44–45.
Holmes was shot: Howe, Shaping Years, 102.
Writing to his mother: Ibid., 99 (citing letter from Oliver Wendell Holmes Jr. to Mrs. Oliver Wendell Holmes Sr., Oct. 23, 1861), 108–11.
In March 1862: White, Justice Oliver Wendell Holmes, 52, 57.
In the fighting at Antietam: McPherson, Battle Cry of Freedom, 544; Michael Lee Lanning, Civil War 100: The Stories Behind the Most Influential Battles, People, and Events in the War Between the States (Naperville, IL: Sourcebooks, 2008), 10.
A bullet entered: Edmund Wilson, Patriotic Gore: Studies in the Literature of the American Civil War (New York: W. W. Norton, 1962), 749.
When Dr. Holmes: Howe, Shaping Years, 130–31; White, Justice Oliver Wendell Holmes, 58–59.
The elder Holmes: Oliver Wendell Holmes Sr., “My Hunt After ‘The Captain,’” Atlantic Monthly, Dec. 1862, 738–63.
Holmes returned home: Howe, Shaping Years, 135.
He traveled from Boston: Novick, Honorable Justice, 69–70.
He no longer believed: Wilson, Patriotic Gore, 749.
Holmes and Little Abbott: Novick, Honorable Justice, 70.
He took a bullet: Barbara Berenson, Boston and the Civil War: Hub of the Second Revolution (Charleston, SC: History Press, 2014), 91.
Holmes wrote his mother: Howe, Shaping Years, 154–55.
Ten of its thirteen officers: Baker, Justice from Beacon Hill, 143.
Several of Holmes’s close friends: Howe, Shaping Years, 157.
When he returned: Wilson, Patriotic Gore, 750.
Decades later, he would recall: Howe, Shaping Years, 164–65; Oliver Wendell Holmes Jr., The Soldier’s Faith, in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., ed. Richard Posner (Chicago: University of Chicago Press, 1992), 85.
Holmes’s youthful enthusiasm: Howe, Shaping Years, 170–71; White, Justice Oliver Wendell Holmes, 65.
He told his parents: Howe, Shaping Years, 170, 174–75.
In the most famous line: Holmes Jr., The Soldier’s Faith, 86, 91.
His college classmate: Wendell Phillips Garrison, “Sentimental Jingoism,” Nation, Dec. 19, 1895, 440–41.
“loathed the thick-fingered clowns”: Oliver Wendell Holmes Jr. to Amelia Holmes, Nov. 16, 1862, in Touched with Fire (Cambridge, MA: Harvard University Press, 1946), 70, quoted in Albert Alschuler, Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 233n73.
The critic Edmund Wilson: Wilson, Patriotic Gore, 755, 763.
In a short autobiography: Oliver Wendell Holmes Jr., autobiographical statement, July 2, 1861, cited in White, Justice Oliver Wendell Holmes, 7–8.
probate judge of Suffolk County: Baker, Justice from Beacon Hill, 164.
Harvard Law School: Howe, Shaping Years, 184, 188–89, 204–5; Novick, Honorable Justice, 96.
Most students were not: Novick, Honorable Justice, 96.
“Just as a certain number”: “Harvard University Law School,” American Law Review 5 (1870): 177; Howe, Shaping Years, 204–5.
He returned to law school: Novick, Honorable Justice, 100–102.
The time he had put in: Howe, Shaping Years, 204.
Holmes dined at the home: Ibid., 223, 225–27.
He traveled on to Scotland: Novick, Honorable Justice, 111–13.
On his return: Howe, Shaping Years, 245; Novick, Honorable Justice, 116.
George Shattuck: Novick, Honorable Justice, 114–15.
James Bradley Thayer: Howe, Shaping Years, 247.
The firm had blue-chip clients: Baker, Justice from Beacon Hill, 188–89.
“a powerful battery”: William James to Henry James, July 5, 1876, quoted in White, Justice Oliver Wendell Holmes, 89.
He was also named: Howe, Shaping Years, 273.
“It is noticeable”: Ibid., 274.
“All the noble”: Baker, Justice from Beacon Hill, 197.
In a letter: Oliver Wendell Holmes Jr. to Frederick Pollock, Sept. 24, 1910, in Holmes-Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock, 1874–1932, ed. Mark deWolfe Howe (Cambridge, MA: Harvard University Press, 1961), 1:171.
Like Holmes, Fanny Dixwell: Novick, Honorable Justice, 131–32; Baker, Justice from Beacon Hill, 219.
Holmes had known Fanny: Oliver Wendell Holmes Jr. to Mrs. Howard Kennedy, Mar. 11, 1872, quoted in White, Justice Oliver Wendell Holmes, 92.
One member of Fanny’s extended family: Howe, Shaping Years, 200n.g.
Holmes once said: Oliver Wendell Holmes Jr. to Ethel Scott, Jan. 6, 1912, quoted in White, Justice Oliver Wendell Holmes, 105.
Holmes’s journal entry: Michael Hoffheimer, Justice Holmes and the Natural Law Legal Philosophy (New York: Routledge, 2013), 78.
Fanny, who suffered from rheumatic fever: Novick, Honorable Justice, 133, 147, 433n49.
He offered up another: Oliver Wendell Holmes Jr. to Lewis Einstein, Aug. 31, 1928, quoted in White, Justice Oliver Wendell Holmes, 105–6.
She dismissed Lady Belper: Novick, Honorable Justice, 143–44.
an article titled “The Gas-Stokers’ Strike”: Oliver Wendell Holmes Jr., “The Gas-Stokers’ Strike,” American Law Review 7 (1873): 582, in Essential Holmes, 120.
Legislation, “like every other device”: Ibid., 122.
His claim that: Herbert Spencer, Social Statics; Or the Conditions Essential to Human Happiness Specified, and the First of Them Developed (New York: D. Appleton and Co., 1892), 303; Eric Foner, introduction to Social Darwinism in American Thought, by Richard Hofstadter (Boston: Beacon Press, 1992).
With this argument: Baker, Justice from Beacon Hill, 214.
His Boston Brahmin upbringing: Andrea Greenwood and Mark W. Harris, An Introduction to the Unitarian and Universalist Traditions (Cambridge; Cambridge University Press, 2011), 60.
After all, the friend: Jennifer Viegas, William James: American Philosopher, Psychologist, and Theologian (New York: Rosen Publishing Group, 2006), 6.
Holmes’s social networks mobilized on his behalf: White, Justice Oliver Wendell Holmes, 110–11; Novick, Honorable Justice, 154; Baker, Justice from Beacon Hill, 241–42.
The Lowell Institute: Mark W. Harris, Elite: Uncovering Classism in Unitarian Universalist History (Boston: Unitarian Universalist Association of Congregations, 2011), 37–38; Harriette Knight Smith, The History of the Lowell Institute (Boston: Lamson, Wolffe and Company, 1898), 11.
Over twelve nights: Novick, Honorable Justice, 158; White, Justice Oliver Wendell Holmes, 148.
It was likely: Novick, Honorable Justice, 157–59.
He insisted the law: Southern Pacific Co. v. Jensen, 224 U.S. 205, 222 (1917) (Holmes, J., dissenting); Fred Rodell, “Justice Holmes and His Hecklers,” Yale Law Journal 60 (1951): 620, 624; H. L. Pohlman, Oliver Wendell Holmes: Free Speech and the Living Constitution (New York: New York University Press, 1991), 22.
Law “cannot be dealt with”: Holmes Jr., Common Law, 1.
With the success: Yosal Rogat, “The Judge as Spectator,”
University of Chicago Law Review 31 (1964) 213, 214; Alschuler, Law Without Values, 84.
In a few years: Oliver Wendell Holmes Jr., “The Profession of the Law: Conclusion of a Lecture Delivered to Undergraduates of Harvard University on February 17, 1886,” in Speeches by Oliver Wendell Holmes (Boston: Little, Brown, 1900), 22.
After being approached: Novick, Honorable Justice, 166.
“Academic life is but half life”: Oliver Wendell Holmes Jr. to Felix Frankfurter, July 15, 1913, quoted in White, Justice Oliver Wendell Holmes, 206.
At the urging: Novick, Honorable Justice, 168–69.
James Bradley Thayer: White, Justice Oliver Wendell Holmes, 204.
In Commonwealth v. Perry: Commonwealth v. Perry, 155 Mass. 117 (1891).
In his view: Baker, Justice from Beacon Hill, 298–99.
Holmes’s Perry dissent: Oliver Wendell Holmes Jr., The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions, ed. Max Lerner (New Brunswick, NJ: Transaction, 1989), 92.
“I know nothing about the matter”: Holmes Jr., Mind and Faith of Justice Holmes, 95.
In a major case: McAuliffe v. Mayor of New Bedford, 155 Mass. 216 (1892).
If the city’s power to fire: Michael Herz, “Justice Byron White and the Argument That the Greater Includes the Lesser,” Brigham Young University Law Review (1994): 227, 239.
“I have known”: Oliver Wendell Holmes Jr. to Frederick Pollock, Apr. 2, 1894, in Holmes-Pollock Letters, 1:50.
Fanny, who had suffered: Novick, Honorable Justice, 201.
Holmes argued for: Oliver Wendell Holmes Jr., The Path of the Law and the Common Law (New York: Kaplan Publishing, 2009), 5, 11, 15.
Holmes was named chief justice: Ibid., 253.
Holmes described the caseload: Ibid., 292.
“As we don’t shut up bores”: Oliver Wendell Holmes Jr. to Frederick Pollock, March 17, 1898 in Holmes-Pollock Letters, 1:81–82.
Holmes had long dreamed: Baker, Justice from Beacon Hill, 196.
The court already had: White, Justice Oliver Wendell Holmes, 253; Baker, Justice from Beacon Hill, 339.
That was good news: Novick, Honorable Justice, 233; Baker, Justice from Beacon Hill, 339.
Hemenway was in fact: White, Justice Oliver Wendell Holmes, 299.
Lodge had also attended: Baker, Justice from Beacon Hill, 341–42.
“the favorite residential resort”: Porter Sargent, A Handbook of New England (Boston: Porter E. Sargent, 1917), 654.
Holmes and Lodge: Baker, Justice from Beacon Hill, 39; “A Fresh Look at Lodge,” Life, Sept. 14, 1953, 175, 177.
Roosevelt was said: White, Justice Oliver Wendell Holmes, 81–82, 299.
Roosevelt was not himself a Brahmin: Gerald Gawalt, My Dear President: Letters Between President and Their Wives (New York: Black Dog & Leventhal, 2006), 33.
Holmes, Lodge, and Roosevelt: Rosenberg, The Life and Times of Francis Cabot Lowell, 60.
On August 11: Novick, Honorable Justice, 235–36.
In an editorial: Oliver Wendell Holmes Jr. to Frederick Pollock, Aug. 13, 1902, in Holmes-Pollock Letters, 1:103–4.
Boston Evening Transcript: White, Justice Oliver Wendell Holmes, 306.
“incompetence and inadequacy”: Holmes Jr. to Pollock, Aug. 13, 1902.
He did not need to worry: Novick, Honorable Justice, 242.
“the president’s choice of me”: Oliver Wendell Holmes Jr. to Lady Georgina Pollock, Sept. 6, 1902, in Holmes-Pollock Letters, 1:105.
Holmes put his Boston life: Holmes Jr. to Pollock, Aug. 13, 1902.
On December 8: White, Justice Oliver Wendell Holmes, 311; Kenneth Jost, The Supreme Court A-Z (New York: Routledge, 2013), 212.
He heard oral arguments: Novick, Honorable Justice, 243–45.
They were regularly invited: Ibid., 259–60.
In the 1903 case: Giles v. Harris, 189 U.S. 475 (1903).
He charged that: Charles S. Bullock III and Mark J. Rozell, eds., The Oxford Handbook of Southern Politics (Oxford: Oxford University Press, 2012), 451–52.
Blacks were subjected: Giles, 189 U.S. at 483; Gloria J. Browne-Marshall, Race, Law, and American Society: 1607 to Present (New York: Routledge, 2013), 184.
The convention delegates: Giles v. Teasley, 193 U.S. 146, 148 (1904).
The convention president: Hunter v. Underwood, 471 U.S. 222, 229 (1985), quoting statement of John B. Knox, president of the Alabama Constitutional Convention of 1901.
Giles argued that the voting rules:. Giles, 189 U.S. at 482.
“a fraud upon the Constitution”: Id. at 486–87.
“the great mass”: Id. at 488.
“decisive turning point”: Richard Pildes, “Democracy, Anti-Democracy, and the Canon,” Constitutional Commentary 17 (2000): 259, 296.
There was nothing: Giles, 189 U.S. at 504 (Harlan, J., dissenting).
Holmes’s view that “political rights”: The Supreme Court abandoned Holmes’s doctrine that “political rights” were not enforceable in the courts in 1962, in Baker v. Carr, 369 U.S. 186 (1962); see Pildes, “Democracy, Anti-Democracy, and the Canon,” 298.
It was the gas stokers’ strike: Holmes Jr., “The Gas-Stokers’ Strike,” 122.
Joseph Lochner, a baker: Lochner v. New York, 198 U.S. 45 (1905); Bernard Schwartz, A History of the Supreme Court (Oxford: Oxford University Press, 1993), 193.
Rufus Peckham: Lochner, 198 U.S. at 53.
“The 14th Amendment”: Id. at 68
Charles Beard: David Bernstein, Rehabilitating Lochner: Defending Individual Rights Against Progressive Reform (Chicago: University of Chicago Press, 2011), 45.
His sympathy lay with legislatures: Felix Frankfurter, Mr. Justice Holmes and the Supreme Court (Cambridge, MA: Harvard University Press, 1938), 24, cited in Rogat, “Judge as Spectator,” 245.
“The only limit I can see”: Oliver Wendell Holmes Jr. to Harold J. Laski, in Mark de Wolfe Howe, Holmes-Laski Letters (New York: Atheneum, 1963) 1:84.
John Marshall Harlan: Lochner, 198 U.S. 70 (Harlan, J., dissenting).
In 1911, in Bailey v. Alabama: Bailey v. Alabama, 219 U.S. 219 (1911).
“iron manacles . . . riveted upon their legs”: Jamison v. Wimbish, 130 F. 351, 355–56 (S.D. Ga. 1904).
The Supreme Court agreed: Bailey, 219 U.S. at 245.
“Breach of a legal contract”: Id. at 246 (Holmes, J., dissenting).
In Berea College v. Kentucky: Berea College v. Kentucky, 211 U.S. 45, 58 (1908).
“it is difficult to perceive”: Id. at 68, 69.
In United States v. Ju Toy: United States v. Ju Toy, 198 U.S. 253 (1905).
“Fanny has got”: Oliver Wendell Holmes Jr. to Ethel Scott, June 5, 1911, Oliver Wendell Holmes Papers, Harvard Law School (hereafter cited as OWH Papers), quoted in Novick, Honorable Justice, 303.
He complained frankly: Oliver Wendell Holmes to Clara Stevens, March 6, 1909, OWH Papers, quoted in Snyder, “House That Built Holmes,” 661, 667.
“I should like”: Oliver Wendell Holmes Jr. to Patrick Sheehan, Dec. 15, 1912, in Oliver Wendell Holmes Jr., The Fundamental Holmes: A Free Speech Chronicle and Reader, ed. Ronald K. L. Collins (Cambridge: Cambridge University Press, 2010), 263.
There was, as it happened: Snyder, “House That Built Holmes,” 669–70.
Many of them lived in: Ronald Steel, Walter Lippmann and the American Century (Boston: Little, Brown, 1980), 120–21; Snyder, “House That Built Holmes,” 670.
The group’s influence: Snyder, “House That Built Holmes,” 663.
At the center of the group: Ibid., 674; Steel, Walter Lippmann, 121.
On March 8, 1916: Novick, Honorable Justice, 317.
When Holmes dissented: Hammer v. Dagenhart, 247 U.S. 251 (1918); Adkins v. Children’s Hospital, 261 U.S. 525 (1923); Snyder,
“House That Built Holmes,” 679-80.
Holmes berated the pacifists: Oliver Wendell Holmes Jr. to John Wigmore, Nov. 1915, OWH Papers, quoted in Novick, Honorable Justice, 469n11; Alschuler, Law Without Values, 27.
hereditary elite: Holmes Sr., Elsie Venner, 3–4.
“If genius and talent are inherited”: Oliver Wendell Holmes Sr., “Crime and Automatism,” Atlantic Monthly, Apr. 1875, 466, 475; Lombardo, Three Generations, 9.
“must tend in the long run”: Holmes Jr., “The Gas-Stokers’ Strike,” 122.
“If the typical criminal”: Holmes Jr., Path of the Law and the Common Law, 19.
“a future in which science”: Holmes Jr., The Soldier’s Faith, 88.
“I think it probable”: Holmes Jr., Mind and Faith of Justice Holmes, 387, 391.
In 1914 he bought a copy: Thomas Robert Malthus, An Essay on Population (New York: E. P. Dutton, 1914); Baker, Justice from Beacon Hill, 601.
“Malthus pleased me immensely”: Oliver Wendell Holmes Jr. to Frederick Pollock, Aug. 30, 1914, in Holmes-Pollock Letters, 1:219.
“devout Malthusian”: Oliver Wendell Holmes Jr. to Harold J. Laski, June 14, 1922, in Holmes-Laski Letters, 658.
“I look at men”: Oliver Wendell Holmes Jr. to Harold J. Laski, July 23, 1925, in Essential Holmes, 140.
“wholesale social regeneration”: Oliver Wendell Holmes Jr., “Ideals and Doubts,” Illinois Law Review 10 (1915): 1, cited in Leuchtenburg, Supreme Court Reborn, 18.
“complaint against war”: Frederick Pollock to Oliver Wendell Holmes Jr., April 11, 1920, in Holmes-Pollock Letters, 2:39.
Holmes agreed: Oliver Wendell Holmes Jr. to Frederick Pollock, April 25, 1920, in Holmes-Pollock Letters, 2:40–41.
“intelligent socialism”: Oliver Wendell Holmes Jr. to Felix Frankfurter, Sept. 3, 1921, in Holmes and Frankfurter: Their Correspondence, 1912–1934, ed. Robert Mennell and Christine Compston (Hanover, NH: University Press of New England, 1996), 125.
Holmes wrote favorably: White, Justice Oliver Wendell Holmes, 572n135.
Many prominent people: Alschuler, Law Without Values, 29; Kevles, In the Name of Eugenics, 106.
But as one legal scholar: Alschuler, Law Without Values, 29.
Holmes’s support for eugenics: Ibid., 29–30.
