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The Long Life And Broad Mind Of Mr. Justice Holmes
June/July 1978 | Volume 29, Issue 4
He scoffed at socialism, claiming that “the crowd” already had pretty much of the national wealth and asserting that the palaces and yachts of the rich amounted only to a drop in the bucket. He repeatedly expressed his admiration for the giants of industry who seemed to strike him as bigger men than dogooders and uplifters. And more than once, in defending free speech in his correspondence, he said that it was the right “of a fool to drool.” Once even, in a moment of impatience, he exclaimed to the lady sitting next to him at dinner that he “loathed” most of the things that he decided in favor of.
There were times, indeed, when Holmes struck some of his contemporaries as the very reverse of liberal. He regretted the prosecution by the government of cases against antiwar propagandists, but he sustained its right to bring them, and after the Debs decision a package addressed to him with a bgmb was intercepted in the post office. He defended the right of the state of Washington to prosecute the publishers of a pamphlet celebrating the glories of nudism because it encouraged “a disrespect for the law,” and in Bailey v. Alabama he dissented from the majority opinion and argued the constitutionality of an Alabama statute (the so-called Negro peonage law) which made a worker’s refusal to perform labor as agreed presumptive evidence of an intent to defraud the employer. Holmes here refused to admit the climate of local prejudice: “We all agree that this case is to be considered and decided in the same way as if it arose in Idaho or New York. Neither public document nor evidence discloses a law which, by its administration, is made something different from what it appears on its face, and therefore the fact that in Alabama it mainly concerns the blacks does not matter.…”
But the opinions just cited are intended only to demonstrate the variety of his thinking. If he loathed some of the things he decided for, it must be remembered that he also loved deciding things that he loathed. He knew that the law could only develop healthily in the way that it had always developed—as a combination of history and legislation, and that for such development judicial restraint was essential. Justice Felix Frankfurter, who succeeded Benjamin Cardozo, who succeeded Holmes, was Holmes’s closest disciple in this philosophy, and lived to see his principles discredited by liberals.
Holmes was always an omnivorous reader. Books seemed to provide him with a life that was as necessary as his work on the Court. Again and again in his letters we find him yearning for the summer vacation at Beverly Farms, when he would be able to read all day. His list of titles is so long and various that it is hard to make many generalizations about it, but one may note a primary interest in current books by philosophers of law, history, and science. Holmes wanted to know every possible theory of man’s role in the cosmos. Yet he was always willing to try any other work that a trusted fellow reader suggested, and his efforts in this respect were nothing if not thorough. We see him, for example, plunging into the famous French critic SainteBeuve at the suggestion of British political scientist Harold Laski and not really much enjoying the experiment, yet refusing to give up until he had read fourteen volumes of the Causeries du Lundi and all of that mammoth work, Port-Royal . He read fiction with less enthusiasm but with considerable insights. He admired the young Ernest Hemingway with reservations, and Willa Gather without them. He read Alfred North Whitehead and Morris Cohen and Bertrand Russell and Oswald Spengler—and also Milt Gross and Anita Loos.
His wide reading brings one inevitably to his correspondence, which is closely bound up with it. Five volumes of this have now been published, including the Holmes-Pollock letters and the Holmes-Laski letters. Holmes and Sir Federick Pollock were contemporaries and lifelong friends, and both were legal scholars, philosophers, and aristocrats. Both were reserved, independent, strong-minded men. In the correspondence, which covers nearly sixty years, their minds met on every kind of legal, political, social, or literary problem. The letters make fascinating reading even for those not versed in law.
Holmes’s letters to Harold Laski are a bit less interesting. Laski was a generation younger and treated his correspondent with marked deference. Holmes was very fond of him, but he was inclined to use him as a literary retriever. He wanted the names of all the books Laski was reading, and he was supplied with a feast. Yet he did not always, as with Pollock, follow up on topics which Laski evidently wished to discuss. At rare moments, however, Holmes would let himself go in a bit of natural description. One can only wish that there were more of such passages as the following: “The event of the week has been the opening of the Freer gallery in the Smithsonian grounds—a beautiful building—with a square in the middle a patch of green, a little fountain and two peacocks and a peahen. The lady it is said will have nothing to do with one of them and he flocked apart and took the sunlight. The other displayed his fan and shivered with amorous anticipations.”