Oliver Wendell Holmes, Jr.
|Oliver Wendell Holmes, Jr.|
|Associate Justice of the United States Supreme Court|
December 4, 1902 – January 12, 1932
|Nominated by||Theodore Roosevelt|
|Preceded by||Horace Gray|
|Succeeded by||Benjamin N. Cardozo|
|Chief Justice of the Massachusetts Supreme Judicial Court|
August 2, 1899 – December 4, 1902
|Appointed by||Winthrop M. Crane|
|Preceded by||Walbridge A. Field|
|Succeeded by||Marcus Perrin Knowlton|
|Associate Justice of the Massachusetts Supreme Judicial Court|
December 15, 1882 – August 2, 1899
|Appointed by||John Davis Long|
|Preceded by||Otis Lord|
|Succeeded by||William Loring|
March 8, 1841|
|Died||March 6, 1935
|Spouse(s)||Fanny Bowditch Dixwell|
|Years of service||1861-1865|
|Unit||20th Massachusetts Volunteer Infantry.|
|Battles/wars||American Civil War|
Oliver Wendell Holmes, Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an Associate Justice of the Supreme Court of the United States from 1902 to 1932, and as Acting Chief Justice of the United States January–February 1930. Noted for his long service, his concise and pithy opinions and his deference to the decisions of elected legislatures, he is one of the most widely cited United States Supreme Court justices in history, particularly for his "clear and present danger" opinion for a unanimous Court in the 1919 case of Schenck v. United States, and is one of the most influential American common law judges, honored during his lifetime in Great Britain as well as the United States. Holmes retired from the Court at the age of 90 years, 309 days, making him the oldest Justice in the Supreme Court's history. He also served as an Associate Justice and as Chief Justice on the Massachusetts Supreme Judicial Court, and was Weld Professor of Law at the Harvard Law School, of which he was an alumnus.
Profoundly influenced by his experience fighting in the American Civil War, Holmes helped move American legal thinking towards legal realism, as summed up in his maxim: "The life of the law has not been logic; it has been experience." Holmes espoused a form of moral skepticism and opposed the doctrine of natural law, marking a significant shift in American jurisprudence. As he wrote in one of his most famous decisions, his dissent in Abrams v. United States (1919), he regarded the United States Constitution as "an experiment, as all life is an experiment" and believed that as a consequence "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death." During his tenure on the Supreme Court, to which he was appointed by President Theodore Roosevelt, he supported efforts for economic regulation and advocated broad freedom of speech under the First Amendment. These positions as well as his distinctive personality and writing style made him a popular figure, especially with American progressives, despite his deep cynicism and disagreement with their politics. His jurisprudence influenced much subsequent American legal thinking, including judicial consensus supporting New Deal regulatory law, and influential schools of pragmatism, critical legal studies, and law and economics. He was one of only a handful of justices to be known as a scholar; The Journal of Legal Studies has identified Holmes as one of the three most cited American legal scholars of the 20th century.
- 1 Early life
- 2 Legal career
- 3 Supreme Court Justice
- 4 Jurisprudential contributions
- 5 Retirement, death, honors and legacy
- 6 Theatre, film, television, and fictional portrayals
- 7 See also
- 8 References
- 9 External links
Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr. and Abolitionist Amelia Lee Jackson. Dr. Holmes was a leading figure in Boston intellectual and literary circles, Mrs. Holmes was connected to the leading families; Henry James Sr., Ralph Waldo Emerson and other Transcendentalists were family friends. Known as "Wendell" in his youth, Holmes, Henry James Jr. and William James became lifelong friends. Holmes accordingly grew up in an atmosphere of intellectual achievement, and early formed the ambition to be a man of letters like Emerson. While still in Harvard College he wrote essays on philosophic themes, and asked Emerson to read his attack on Plato's idealist philosophy. Emerson famously replied, "If you strike at a king, you must kill him." He supported the Abolitionist movement that thrived in Boston society during the 1850s. At Harvard University, where he was a member of a dining club, the Porcellian Club to which his father had also belonged, and the Hasty Pudding club, of which he was secretary and "poet." He enlisted in the Massachusetts militia in the spring of 1861, when the president first called for volunteers following the firing on Fort Sumter, but returned briefly to Harvard College to participate in commencement exercises. In the summer of 1861 with his father's help he obtained a lieutenant's commission in the Twentieth Massachusetts Volunteer Infantry. Holmes's early life was described in detail by Mark DeWolfe Howe, Justice Oliver Wendell Holmes--The Shaping Years, 1841-1870 (1957).
During his senior year of college, at the outset of the American Civil War, Holmes enlisted in the fourth battalion, Massachusetts militia, and then received a commission as first lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry. He saw much action, from the Peninsula Campaign to the Wilderness, suffering wounds at the Battle of Ball's Bluff, Antietam, and Chancellorsville, and suffered from a near-fatal case of dysentery. Holmes particularly admired and was close to his fellow officer in the 20th Mass., Henry Livermore Abbott. Holmes rose to the rank of lieutenant colonel, but eschewed promotion in his regiment and served on the staff of the Sixth Army during the Wilderness campaign. Abbott took command of the regiment in his place, and was killed. Holmes is said to have shouted at Lincoln to take cover during the Battle of Fort Stevens, although this is commonly regarded as apocryphal. Although Holmes himself made this claim, he likely was not present on the day Lincoln visited Fort Stevens. Holmes received a brevet (honorary) promotion to colonel in recognition of his services during the war. He retired to his home in Boston after his three-year enlistment ended in 1864, weary and ill, his regiment disbanded.
Lawyer and State Judge
In the summer of 1864, Holmes returned to the family home in Boston, wrote poetry and debated philosophy with his friend William James, pursuing his debate with philosophic idealism, and considered reenlisting. But by the fall, when it became clear that the war would soon end, Holmes enrolled in the Harvard Law School, "kicked into the law" by his father, as he later recalled. He attended lectures there for a single year, reading extensively in theoretical works, and then clerked for a year in his cousin Robert Morse's office. He was admitted to the bar in 1866, and after a long visit to London, to complete his education, went into law practice in Boston. He joined a small firm, and in 1872 married a childhood friend, Fanny Bowditch Dixwell. Their marriage lasted until her death on April 30, 1929. They never had children together. They did adopt and raise an orphaned cousin, Dorothy Upham. Fanny Holmes disliked Beacon Hill society, and devoted herself to embroidery. She was described as devoted, witty, wise, tactful, and perceptive.
Whenever he could, Holmes visited London during the social season of spring and summer, and during the years of his work as a lawyer and judge in Boston he formed romantic friendships with English women of the nobility, with whom he corresponded while at home in the United States. The most important of these was his friendship with the Anglo-Irish Claire Castletown, the Lady Castletown, whose family estate Doneraile he visited several times, and with whom he may have had a brief affair. He formed his closest intellectual friendships with British men, and became one of the founders of what was soon called the "sociological" school of jurisprudence in Great Britain, followed a generation later by the "legal realist" school in America.
Holmes practiced admiralty law and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the new Harvard Law Review, reporting decisions of state supreme courts, and preparing a new edition of Kent's Commentaries, which served practitioners as a compendium of case law, at a time when official reports were scarce and difficult to obtain. He summarized his hard-won understanding in a series of lectures, collected and published as The Common Law in 1881. In the book, Holmes set forth his view that the only source of law, properly speaking, is a judicial decision enforced by the state. Judges decide cases on the facts, and then write opinions afterward presenting a rationale for their decision. The true basis of the decision is often an "inarticulate major premise" outside the law. A judge is obliged to choose between contending legal theories, and the true basis of his decision is necessarily drawn from outside the law. The common law evolves, because civilized society evolves, and judges share the common preconceptions of the governing class. These views endeared Holmes to the later advocates of legal realism, and made him one of the early founders of law and economics jurisprudence. The Common Law is the only major scholarly work written by a practicing attorney. Holmes famously contrasted his own scholarship with the abstract doctrines of Christopher Columbus Langdell, dean of Harvard Law School, who viewed the common law as a self-enclosed set of doctrines. Holmes viewed Langdell's work as akin to the German philosophic idealism he had for so long resisted, opposing it with his own scientific materialism.
Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes, but Massachusetts Senator George Frisbie Hoar convinced Hayes to nominate another candidate. In the fall of 1882, Holmes became a professor at Harvard Law School, accpeting an endowed professorship which had been created for him, largely through the efforts of Louis D. Brandeis. On Friday December 8, 1882, Supreme Judicial Court of Massachusetts associate justice Otis Lord decided to resign, however, giving outgoing Republican governor John Davis Long a chance to appoint his successor, if it could be done before the Massachusetts Governor's Council adjourned at 3 pm. Holmes' partner George Shattuck proposed him for the vacancy, Holmes quickly agreed, and there being no objection by the Council, took the oath of office on December 15, 1882. His resignation after only a few weeks, and without notice, was resented by the law school faculty, giving rise to persisting estrangement. On August 2, 1899, Holmes became Chief Justice of the Massachusetts Supreme Judicial Court following the death of Walbridge A. Field.
During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize trade unions and to strike, as long as no violence was involved, and coercion was not exerted through impermissible means such as secondary boycotts, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers. He continued to give speeches and to write articles that added to or extended his work on the common law, most notably "Privilege, Malice and Intent", in which he presented his view of the pragmatic basis of the common-law privileges extended to speech and the press, which could be defeated by a showing of malice, or of specific intent to harm. This argument would later be incorporated into his famous opinions concerning the First Amendment. He also published an address, "The Path of the Law," in which he enlarged upon his view of the law from the perspective of a practitioner concerned for the interests of his client, who might be a bad man unconcerned with moral absolutes.
Supreme Court Justice
On August 11, 1902, President Theodore Roosevelt nominated Holmes to a seat on the United States Supreme Court vacated by Justice Horace Gray, who had retired in July 1902 as a result of illness. The nomination was made on the recommendation of Senator Henry Cabot Lodge, the junior senator from Massachusetts, but was opposed by the senior senator and chairman of the Senate Judiciary Committee, George Frisbie Hoar. Hoar was a strenuous opponent of imperialism, and the legality of the annexation of Puerto Rico and the Phillipines was expected to come before the Court. Lodge, like Roosevelt, was a strong supporter of imperialism, which Holmes was expected to support as well. As a result of Hoar's opposition, there was a delay in the vote for confirmation, but on December 2, 1902, Roosevelt resubmitted the nomination and Holmes was unanimously confirmed by the United States Senate on December 4, receiving his commission the same day. On the bench, Holmes did vote to support the administration's position favoring the annexation of former Spanish colonies in the "Insular Cases." However, he later disappointed Roosevelt by dissenting in Northern Securities Co. v. United States, a major antitrust prosecution; the majority of the court, however, did rule against Holmes and sided with Theodore Roosevelt's belief that Northern Securities violated the Sherman Anti-Trust Act. The dissent by Holmes permanently damaged his formerly close relationship with Theodore Roosevelt.
Holmes is known for his pithy, short, and frequently quoted opinions. In more than twenty-nine years on the Supreme Court bench, he ruled on cases spanning the whole range of federal law. He is remembered for prescient opinions on topics as widely separated as copyright, the law of contempt, the antitrust status of professional baseball, and the oath required for citizenship. Holmes, like most of his contemporaries, viewed the Bill of Rights as codifying privileges obtained over the centuries in English and American common law, and was able to establish that view in numerous opinions of the Court. He is considered one of the greatest judges in American history, and embodies for many the traditions of the common law, which are now challenged by Originalists who insist the text of the Constitution trumps any common law precedents that depart from the original understanding of its meaning.
Otis v. Parker
Beginning with his first opinion for the Court, in Otis v. Parker, Holmes declared that "due process of law," the fundamental principle of fairness, protected people from unreasonable legislation, but was limited to only those fundamental principles enshrined in the common law and did not protect most economic interests.
Schenck v. United States
In a series of opinions surrounding the WWI Espionage Act of 1917 and the Sedition Act of 1918, he held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege for speech and the press, even when those expressions caused injury, but that privilege would be defeated by a showing of malice, or intent to do harm. Holmes came to write three unanimous opinions for the Supreme Court that arose from prosecutions under the 1917 Espionage Act because in an earlier case, Baltzer v. United States, he had circulated a powerfully expressed dissent, when the majority had voted to uphold a conviction of immigrant socialists, who had circulated a petition criticizing the draft. Apparently learning that he was likely to publish this dissent, the Government (perhaps alerted by Justice Louis D. Brandeis, newly appointed by President Woodrow Wilson) abandoned the case, and it was dismissed by the Court. The Chief Justice then asked Holmes to write opinions in which they could be unanimous, upholding convictions in three similar cases, where there were jury findings that speeches or leaflets were published with an intent to obstruct the draft, a crime under the 1917 law. Although there no evidence that the attempts had succeeded, Holmes held for a unanimous Court that an attempt, purely by language, could be prosecuted in cases where the expression, in the circumstances in which it was uttered, posed a "clear and present danger" of causing some harm that the legislature had properly forbidden. In Schenck v. United States, Holmes announced this doctrine for a unanimous Court, famously declaring that the First Amendment could not be understood to provide an absolute right, and would not protect a person "falsely shouting fire in a theater and causing a panic." Although much criticized, Schenck remains an important precedent, and still governs cases in which expressions are intended to cause harm, or threaten to cause imminent lawless conduct.
Abrams v. United States
Later that year, however, in Abrams v. United States, Holmes was again in dissent. The Wilson Administration was vigorously prosecuting those suspected of sympathies with the recent Russian Revolution, as well as opponents of the war against Germany. The defendants in this case were socialists and anarchists, recent immigrants from Russia who opposed the apparent efforts of the United States to intervene in the Russian civil war. They were charged with violations of the 1918 amendments to the Espionage Act which were known as the Sedition Act of 1918, and which purported to make criticisms of the government and the war effort a crime. Abrams and his co-defendants were charged with distributing leaflets that in Yiddish called for a "general strike" to protest the US intervention in Russia. A majority of the Court voted to uphold the convictions and sentences of ten and twenty years, to be followed by deportation. Holmes was moved to dissent. The majority claimed to be following the precedents already set in Schenck and the companion cases in which Holmes had written for the Court, but Holmes insisted that the defendants' leaflets neither threatened to cause any harm, nor showed the specific intent to hinder the war effort. Holmes condemned the Wilson Administration's prosecution, and its insistence on draconian sentences for the defendants in passionate language: "Even if I am technically wrong [regarding the defendants' intent] and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper . . . the most nominal punishment seems to be all that possibly could be inflicted, unless the defendants are to be made to suffer, not for what the indictment alleges, but for the creed that they avow. . . " Holmes then went on to explain the importance of freedom of thought in a democracy:
"[W]hen men have realized that time has upset many fighting faiths,they may come to believe . . . that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes can safely be carried out. That, at any rate, is the theory of Constitution. It is an experiment, as all life is an experiment."
In writing this dissent, Holmes may have been influenced by Zechariah Chafee's article "Freedom of Speech in War Time" Chafee had criticized Holmes's opinion in Schenck for failing to express in more detail and more clearly the common-law doctrines upon which he relied. In his Abrams dissent, Holmes did elaborate somewhat on the decision in Schenck, roughly along the lines that Chafee had suggested. Although Holmes evidently believed that he was adhering to his own precedent, some later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. In Abrams, the majority opinion did rely on the clear-and-present-danger formulation of Schenck, claiming that the leaflets showed the necessary intent, and ignoring the point that they were unlikely to have any effect. In later opinions, the Supreme Court departed from this line of reasoning where the validity of a statute was in question, adopting the principle that a legislature could properly declare that some forms of speech posed a clear and present danger, regardless of the circumstances in which they were uttered. Holmes continued to dissent.
Buck v. Bell
In 1927, Holmes wrote the 8-1 majority opinion in the Buck v. Bell case that upheld the forced sterilization of Carrie Buck who was claimed to be mentally defective. although later scholarship has shown the suit was collusive, and Carrie Buck was probably of normal intelligence, the record before the Supreme Court showed only that she had received a proper hearing in which she was represented by a competent guardian, and was able to press her suit in the federal courts. She apparently had received the procedures required by due process of law in ample measure. The argument made on her behalf was principally that the statute requiring sterilization of institutionalized persons was unconstitutional, itself a violation of what today we call "substantive due process." Holmes repeated familiar arguments that statutes would not be struck down if they appeared on their face to have a reasonable basis. In support of his argument that the supposed science of eugenics provided a reasonable basis for the law, and that interest of the states in a pure gene pool outweighed the interest of individuals in their bodily integrity, he argued:
- "We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes. Three generations of imbeciles are enough."
Although the opinion is universally condemned, and the supposed science of eugenics has been discarded, the decision in the case still stands: a person found to be incompetent after adequate procedures may be required to submit to intrusive medical procedures. Buck v. Bell is still the law, to this extent, and was cited in support of the decision in Roe v. Wade.
From Taft's departure on February 3, 1930 until Charles Evans Hughes took office on February 24, 1930, Holmes briefly acted as the Chief Justice and presided over court sessions.
Although Holmes did not dissent frequently, and wrote only 72 separate opinions out of about 1400 written during his 29 years of service, his dissents were often prescient and had acquired so much authority that he became known as "The Great Dissenter".
Critique of Formalism
Holmes in his earliest writings established a lifelong belief that the decisions of judges were consciously or unconsciously result-oriented, and reflected the evolving mores of the class and society from which judges were drawn. Holmes accordingly argued in The Common Law that legal rules are not deduced through formal logic but rather emerge from active process of human-self government. He explored these theories in his 1881 book The Common Law. His philosophy represented a departure from the prevailing jurisprudence of the time: legal formalism. Holmes sought to consciously reinvent the common law— to modernize it as a tool for adjusting to the changing nature of modern life, as judges of the past had done more or less unconsciously. He has been classed with the philosophic pragmatists, although pragmatism is what he attributed to the law, rather than his personal philosophy. Supporting this connection is his brief membership in the informal Metaphysical Club which met in the 1879s, and included Henry and William James,and the philosopher Charles Peirce.
Central to his thought was the notion that the law, as it had evolved in modern societies, no longer concerned itself with morality, but with the material results of a defendant's actions. Holmes argued that the evolving common law standard was that liability be based on the conduct that society expects the "reasonable and prudent man" to exercise. If a construction worker throws a beam onto a crowded street,
|“||he does an act which a person of ordinary prudence would foresee is likely to cause death...,and he is dealt with as if he foresaw it, whether he does so in fact or not. If a death is caused by the act, he is guilty of murder. But if the workman has a reasonable cause to believe that the space below is a private yard from which everyone is excluded, and which is used as a rubbish-heap, his act is not blameworthy, and the homicide is a mere misadventure.||”|
In the modern world, the advances made in biology and the social sciences should allow a better conscious determination of the results of individual acts and the proper measure of culpability for them. The proper object of law, Holmes argued, was not to instill individual morality through punishment, but rather to publicize social duties to give individuals a fair chance to avoid doing harm before being held responsible for it. This belief in the pronouncements of science, although he later doubted its applicability to law in many cases, accounts for his enthusiastic endorsement of eugenics in his writings, and his opinion in the case of Buck v. Bell.
Justice Holmes laid the foundation of healthy and constructive skepticism in the law. Hughes writes: "Though another half century was to elapse before the appearance of Ogden and Richards' The Meaning of Meaning, exploration of meaning of meaning of law was Holmes's pioneer enterprise." Hughes further writes: "To me, Mr. Justice Holmes is a prophet of the Law."
In 1881, Holmes published The Common Law, representing a new departure in legal philosophy. Through his writings, he changed general attitude to the law. An excerpt from the opening passage captures the pragmatic theme of that work and of Holmes's philosophy of law: "The life of the law has not been logic; it has been experience."
In a dissenting opinion in Lochner v. New York (1905) Holmes declared that the law should develop along with society and that the 14th Amendment did not deny states a right to experiment with social legislation. He also argued for judicial restraint, asserting that the Court should not interpret the Constitution according to its own social philosophy. Francis Biddle writes: "He was convinced that one who administers constitutional law should multiply his skepticisms to avoid heading into vague words like 'liberty', and reading into law his private convictions or the prejudices of his class." Biddle also said that Holmes "refused to let his preferences (other men were apt to call them convictions) interfere with his judicial decisions...The steadily held determination to keep his own views isolated from his professional work is aptly shown by his famous remark in the Lochner case - the Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics...A constitution is not intended to embody a particular economic theory."[clarification needed]
According to Holmes, "Men make their own laws...these laws do not flow from some mysterious omnipresence in the sky, and...judges are not independent mouthpieces of the infinite. The common law is not a brooding omnipresence in the sky." Holmes compared the Law to a bad man "who cares only for the material consequences of things" rather than as an independent moral entity.[clarification needed] Holmes defined the law in accordance with his pragmatic judicial philosophy. Rather than a set of abstract, rational, mathematical, or in any way unwordly set of principals, Holmes said that, "[T]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." Accordingly, Holmes thought that only a judge or lawyer who is acquainted with the historical, social, and economic aspects of the law would be in a position to fulfill his functions properly. Although he never ruled on the contentious social issue, Holmes believed the concept justified abolishing segregation.
As a justice of U.S. Supreme Court, Holmes challenged a traditionalist concept of the Constitution that said that the written document does not change, so neither should its interpretation.[vague] Holmes also protested against Formalism, the method of abstract logical deduction from general rules in the judicial process. According to Holmes, lawyers and judges are not logicians and mathematicians. The books of the laws are not books of logic and mathematics. He writes, "The life of the law has not been logic; it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, and even the prejudices which judges share with their fellow-men, have had a good deal more to do than syllogism in determining the rules by which men should be governed. The law embodies the story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics."
Holmes also insisted on the separation of "ought" and "is," which are obstacles in understanding the realities of the law.[clarification needed] As a moral skeptic, Holmes stated that if you want to know the real law, and nothing else, you must consider it from the point of view of a "bad man" who cares only of the material consequences of the courts' decisions, and not from the point of view of a good man, who find his reasons for conduct "in the vaguer sanctions of his conscience."[clarification needed] The law is full of phraseology drawn from morals, and talks about rights and duties, malice, intent, and negligence - and nothing is easier in legal reasoning than to take these words in their moral sense.[clarification needed] Holmes said, "I think our morally tinted words have caused a great deal of confused thinking." But Holmes is not unconcerned with moral questions. He writes, "The law is the witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law." George Washington University law professor Jeffrey Rosen summarized Holmes' views on politics and the law this way: "Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold."
Retirement, death, honors and legacy
Holmes was widely admired during his last years, and on his ninetieth birthday was honored on one of the first coast-to-coast radio broadcasts,during which the Chief Justice, the Dean of Yale Law School, and the president of the American Bar Association read encomia; the Bar Association presented him with a gold medal. Holmes served on the court until January 12, 1932, when his brethren on the court, citing his advanced age, suggested that the time had come for him to step down. By that time, at 90 years of age, he was the oldest justice to serve in the court's history. On his ninety-second birthday, newly inaugurated President Franklin Delano Roosevelt and his wife Eleanor called on Holmes at his house in Washington.
Holmes died of pneumonia in Washington, D.C. in 1935, two days short of his 94th birthday. In his will, Holmes left his residuary estate to the United States government (he had earlier said that "Taxes are what we pay for civilized society" in Compañia General de Tabacos de Filipinas vs. Collector of Internal Revenue, 275 U.S. 87, 100 (1927).) After his death, his personal effects included his Civil War Officer's uniform still stained with his blood and 'torn with shot' as well as the carefully wrapped Minié balls that had wounded him three times in separate battles. He was buried in Arlington National Cemetery. The United States Postal Service honored Holmes with a Prominent Americans series (1965–1978) 15¢ postage stamp.
Holmes's papers, donated to Harvard Law School, were kept closed for many years after his death, a circumstance that gave rise to somewhat fanciful accounts of his life. Catherine Drinker Bowen's fictionalized biography "Yankee from Olympus" was a long-time bestseller, and the 1951 Hollywood motion picture The Magnificent Yankee was based on a play that had little basis in fact. Much of the scholarly literature addressing Holmes's opinions was written before much was known about his life, and before a coherent account of his views was available. The Harvard Law Library eventually relented, and made availabile to scholars the extensive Holmes papers, carefully collected and annotated by Mark DeWolfe Howe, who unfortunately died before he was able to complete his own biography of the justice. In 1989, the first full biography based on Holmes's papers was published, and several other biographies have followed. Congress established the "Holmes Devise" and the funds he left to the United States were used to create a garden at the Supreme Court's building, and to publish an edition of his collected works.
Theatre, film, television, and fictional portrayals
American actor Louis Calhern portrayed Holmes in the 1946 play The Magnificent Yankee, with Dorothy Gish as Holmes's wife Fanny. In 1950, Calhern repeated his performance in MGM's film version The Magnificent Yankee, for which he received his only Academy Award nomination. Ann Harding co-starred in the film. A 1965 television adaptation of the play starred Alfred Lunt and Lynn Fontanne in one of their few appearances on the small screen.
In the movie Judgment at Nuremberg (1961), defense advocate Hans Rolfe quotes Justice Oliver Wendell Holmes twice with the following:
This responsibility will not be found only in documents that no one contests or denies. It will be found in considerations of a political or social nature. It will be found, most of all in the character of men.
- "Federal Judicial Center: Oliver Wendell Holmes". 2009-12-11. Retrieved 2009-12-11.
- Holmes, Oliver Wendell, Jr. (1881). The Common Law I. Boston: Little, Brown and Company.
- Abrams v. United States, 250 U.S. 616, 630 (1919).
- Louis Menand, ed., Pragmatism: A Reader. New York: Vintage Books, 1997, pp. xxix.
- Jeffrey Rosen, "Brandeis's Seat, Kagan's Responsibility". New York Times, July 2, 2010. Accessed July 5, 2010.
- Shapiro, Fred R. (2000). "The Most-Cited Legal Scholars". Journal of Legal Studies 29 (1): 409–426. doi:10.1086/468080.
- Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes, Little, Brown and Company, 1989, p. 26.
- Novick pp. 34-35.
- James M. McPherson, Battle Cry of Freedom. (New York, 1988) 757.
- James G. Randall and Richard N. Current, Lincoln the President: Last Full Measure (New York, 1955), 200.
- Benjamin P. Thomas, Abraham Lincoln: A Biography (New York, 1952), 434.
- G. Edward White, Justice Oliver Wendell Holmes: Law and the Inner Self. New York, 1993, 64-65.
- Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes pp. 372, 422 n.
- Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes (1989, 2013), p. 96.
- Novick Honorable Justice, pp. 207-220.
- Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (1963).
- 8 Harv. L. Rev. 1 (1894)
- 10 Harv. L. Rev. 457 (1897).
- J.A. Garraty, "Holmes's appointment to the Supreme Court," 22 New England Quarterly 469 (1951).
- Northern Securities Co. v. U.S., 193 U.S. 197 (1904).
- A Falling Out: The Relationship Between Oliver Wendell Holmes and Theodore Roosevelt
- Preface,"Honorable Justice at Twenty-Five," in Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes (2013)
- Sheldon M. Novick, The Unrevised Holmes and Freedom of Expression, 1991 Supreme Court Review p. 303 (1992)
- Chafee, Zechariah (1919). "Freedom of Speech in Wartime". Harvard Law Review 32 (8): 932–973. doi:10.2307/1327107. JSTOR 1327107.
- Thomas Healy, The Great Dissent: How Oliver Wendell Holmes Changed His Mind--and Changed the History of Free Speech in America (2013)
- 274 U.S. 200, at 207, Justia.com U.S. Supreme Court Center.
- "Books: The Great Dissenter". Time. May 8, 1944. Retrieved May 20, 2010.
- Sutton, John (2001). Law/Society: Origins, Interactions, Change. Pine Forge Press.
- Louis Menand, The Metaphysical Club: A Story of Ideas in America (2002)
- Holmes Jr., Oliver. "The Common Law". The Common Law.
- O.W. Holmes, "Law in Science and Science in Law," 12 Harv. L. Rev. 442 (1899); "The Path of the Law," 10 Harv. L. Rev. 457 (1897).
- Charles. Hughes, Early Writing of Holmes, Jr., in 44
- Harvard Law Review (1930-31), at p. 718. 312 Early Writings of Holmes at p. 677.
- 198 US 45,76 (1905)
- Francis Biddle, Justice Holmes, Natural law, and the Supreme Court, (1960), p.l0.
- Francis Biddle, Justice Holmes, Natural Law and the Supreme Court, (1960) p.49.
- Southern Pac. Co. V. Jensen, 244 U.S. 205, 222 (1917) (dissent).
- Holmes, The Path of the Law, 10 Harvard Law Review (1897) 457
- Holmes, The Common Law,1881.
- Holmes, The Path of the Law, Harvard Law Review, X (1897),457
- Frances Biddle, Justice Holmes, Natural Law, and the Supreme Court. 40 332 Path, p.38.
- 333 Holmes, The Path of the Law, Harvard Law Review, X (1897), 457.
- "Historical Information: Biography of Oliver Wendell Holmes, Associate Justice of the Supreme Court of the United States". Arlington National Cemetery. Arlingtoncemetery.org. Accessed July 5, 2010.
- Sheldon Novick, Honorable Justice: The Life of Oliver Wendell Holmes (1989, 2013).
- The Collected Works of Justice Holmes: The Holmes Devise Memorial Edition, University of Chicago Press (1995, Sheldon M. Novick, ed.).
- Holmes, Oliver Wendell (1995). The Collected Works of Justice Holmes (S. Novick, ed.). Chicago: University of Chicago Press. ISBN 0-226-34966-7.
- Alschuler, Albert W. (2000). Law Without Values: The Life, Work, and Legacy of Justice Holmes. Chicago: University of Chicago Press. ISBN 0-226-01520-3.
- Frankfurter, Felix (1916). "The Constitutional Opinions of Justice Holmes". Harvard Law Review 29 (6): 683–702. doi:10.2307/1326500. JSTOR 1326500.
- Kearns Goodwin, Doris (2005). Team of Rivals: The Political Genius of Abraham Lincoln. New York: Simon & Schuster. ISBN 0-7432-7075-4.
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- Posner, Richard A., ed. (1992). The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions and Other Writings of Oliver Wendell Holmes, Jr. University of Chicago Press. ISBN 0-226-67554-8.
- 11th Edition Encyclopædia Britannica (1911)
- Collins, Ronald K.L., ed., The Fundamental Holmes: A Free Speech Chronicle and Reader (Cambridge University Press, 2010)
- Abraham, Henry J., Justices and Presidents: A Political History of Appointments to the Supreme Court. 3d. ed. (New York: Oxford University Press, 1992). ISBN 0-19-506557-3.
- Brown, Richard Maxwell, "No Duty to Retreat: Violence and Values in American History and Society." (University of Oklahoma Press, Norman Publishing Division of the University, by arrangement with Oxford University Press, Inc. 1991). ISBN 0-8061-268-3
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- Frank, John P., The Justices of the United States Supreme Court: Their Lives and Major Opinions (Leon Friedman and Fred L. Israel, editors) (Chelsea House Publishers: 1995) ISBN 0-7910-1377-4, ISBN 978-0-7910-1377-9.
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- Lewis, Anthony, Freedom for the Thought That We Hate: A Biography of the First Amendment (Basic ideas. New York: Basic Books, 2007). ISBN 0-465-03917-0.
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- Oliver Wendell Holmes, Jr., American Jurist
- Works by Oliver Wendell Holmes at Project Gutenberg
- Oliver Wendell Holmes, Jr., Recalls Famed Abraham Lincoln Fort Stevens Visit, Original Letter Shapell Manuscript Foundation
- "Buck v. Bell, 274 U.S. 200 (1927)". FindLaw. Retrieved 2009-07-22.
- Holmes' Dissenting Opinion, Abrams vs. United States, 10 November 1919
- "Finding aid for Oliver Wendell Holmes, Jr., Papers, 1841-1935.". Harvard Law School Library.
- "Oliver Wendell Holmes Jr.- A digital suite by the Harvard Law School Library". Harvard Law School Library.
- Booknotes interview with Liva Baker on The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes, September 8, 1991.
- The Holmes Blog
|Associate Justice of the Massachusetts Supreme Judicial Court
December 15, 1882 – August 2, 1899
Walbridge A. Field
|Chief Justice of the Massachusetts Supreme Judicial Court
August 2, 1899 – December 8, 1902
Marcus Perrin Knowlton
|Associate Justice of the Supreme Court of the United States
December 4, 1902 – January 12, 1932
Benjamin N. Cardozo