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The Long Life And Broad Mind Of Mr. Justice Holmes
June/July 1978 | Volume 29, Issue 4
However, when Theodore Roosevelt appointed Holmes an Associate Justice of the United States Supreme Court in 1902, it was only after careful consultation with Holmes’s and Roosevelt’s good friend Lodge, who was then a senator. The President was characteristically candid. He wanted to be sure that Holmes was a good party man, in entire sympathy with Roosevelt’s views. Lodge was reassuring, and the appointment was made. Everything went well, from the President’s point of view, until the case of Northern Securities v. United States , two years later, when Holmes dissented from the opinion of the majority, which held that the merger of the Northern Pacific and Great Northern railroads was in violation of the Sherman Antitrust Act. Holmes refused to be swept along in the wake of Roosevelt’s trust busting. He pointed out that the supposed evil countered by the statute was a union between parties to exclude strangers, a combination to keep rivals out of the business and to ruin those already in it. The statute in no way prevented a combination of companies with the object of increasing the total amount of business performed. Size alone was not objectionable. If it were, he observed, either the Great Northern or the Northern Pacific might already be considered too large.
Theodore Roosevelt was irate. He made his opinion known that Holmes had truckled under to the power of big business, and exclaimed in disgust that he could carve a judge with more backbone out of a banana. It was said that he even contemplated excluding Holmes from further invitations to the White House. Holmes cared little. He always professed a liking for Theodore Roosevelt and an admiration for his way of getting things done, but he never had much respect for his intellect.
Holmes remained on the Supreme Court for thirty years, resigning when he was ninety, in 1932. Meanwhile, he and Justice Brandeis became famous for their dissents against majority opinions. It is a truism to point out that many of these dissents have since become the law. What are today regarded the fundamental rights of workers and unions were long denied because of the judicial doctrine of the sacredness of liberty of contract. Holmes had no particular predisposition toward legislative regulation of business or in favor of labor unions, but his old belief that law represented the convenience of the majority induced him to be very strongly of the opinion that legislatures must be given a wide latitude to experiment.
Dissenting from a majority opinion which denied the power to New York State to set a fifty-cent limit for the markup of theater-ticket prices, Holmes said: “Lotteries were thought useful adjuncts of the State a century or so ago; now they are believed to be immoral and they have been stopped. Wine has been thought good for man from the time of the Apostles until recent years. But when public opinion changed it did not need the Eighteenth Admendment, notwithstanding the Fourteenth, to enable a State to say that business should end.… What has happened to lotteries and wine might happen to theaters in some moral storm of the future, not because theaters were devoted to a public use, but because people had come to think that way.”
He was inclined to take a more narrow look at state or federal statutes which cut down on freedom of speech. Where this occurred in time of war, he had to be convinced that there was a clear and present danger to the state in the prohibited utterance. Here, in Abrams v. United States , is one of his most eloquent arguments in favor of the “experiment” of the Constitution: “But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas—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 safely can be carried out. That, at any rate, is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.”
The rather fuzzy, sentimentalized picture of Holmes, developed by the great claque of his admirers in his old age, as a persistently fighting liberal, always on the side of the underdog, can be misleading. Holmes was first and foremost a judge. Because he did not think it proper for a court to weigh the wisdom of a statute and to superimpose upon a legislature the court’s own economic or social predilections, he was inclined to sustain rather than throw out new laws. As a good percentage of such laws during his long tenure on the Supreme Court tended toward the restraint and regulation of big industry, he is sometimes thought to have been in favor of a regulated society. Yet in his correspondence he again and again denies any such predisposition.