In the course of his twenty-nine years on the Supreme Court, Holmes wrote 873 opinions, and several of his eloquently argued dissents on free speech and due process are now treated as precedents. Holmes preferred common law over natural law and was strongly reluctant to interfere with state legislation that was not expressly prohibited by the Constitution.
Holmes was born into a distinguished Boston Brahmin family, a son of the famous raconteur and medical doctor, Dr. Oliver Wendell Holmes. He attended Harvard College for four years before enlisting in 1861 in the Fourth Battalion, Massachusetts Militia. As a first lieutenant, Holmes saw much heavy fighting and was wounded three times: at Ball’s Bluff, Virginia, in 1861, at Antietam Creek in 1862, and at Chancellorsville in 1863. His military service ended in July, 1864, and it left an indelible mark on him, as evidenced in his 1895 Harvard Memorial Day address on “The Soldier’s Faith.” In 1866 Holmes received a law degree from Harvard. He was admitted to the Massachusetts bar in 1867, and three years later, he became coeditor of the American Law Review and began lecturing at Harvard College. In 1873 he became a partner in the new firm of Shattuck, Holmes, and Munroe.
Holmes’s scholarly career began in 1873 when the twelfth edition of Kent’s Commentaries appeared with Holmes as the sole editor. The Lowell Lectures that Holmes delivered in 1880 were published in 1881 as The Common Law, his interpretation of the legal principles that the courts had developed over centuries, and the following year, he abandoned his law practice to teach at Harvard Law School for a few months before being appointed to the supreme judicial court of Massachusetts in December, 1882. Holmes soon became known for his dictum that “except so far as expressly or by implication [a legislative act] is prohibited by the Constitution that the question always is where do you find the prohibition not where do you find the power.”
Oliver Wendell Holmes
Nothing did more to establish Holmes’s reputation as the “Great Dissenter” than his dissent in the Massachusetts court’s 6-1 ruling in 1896 on Vegelahn v. Guntner. The furniture manufacturer Frederick O. Vegelahn resisted the upholsterers’ union (represented by George M. Guntner) in their demands for a raise and a nine-hour workday. When the upholsterers picketed, Vegelahn went to the Massachusetts court and won a ruling that the picketing constituted “unlawful interference” with an employer’s right to hire anyone who wanted to work for him and his employees’ right to stay employed by anyone who would hire them. In his dissent, Holmes supported Vegelahn in disallowing the picketers the right to any violent behavior, including obstructing access to the factory entrance, but he refused to forbid peaceful picketing or boycotting.
When Theodore Roosevelt became president in 1901, the United States was experiencing a struggle between big business and the rights of individuals. The first blow had been struck in 1890 by the federal government with the Sherman Antitrust Act, but the barons were still powerful and Roosevelt knew that he had to fight them. In 1902 when Roosevelt was to make his first Supreme Court appointment, the strong advocacy of Holmes’s fellow Boston Brahmin, Henry Cabot Lodge, won Holmes the seat. Holmes’s first opinion, in Otis v. Parker
The Fourteenth Amendment,
Business interests continued to cite the Fourteenth Amendment in their defense in cases such as Lochner v. New York
Adkins v. Children’s Hospital (1923) was a minimum- wage case with parallels to Lochner. A 1918 federal law had guaranteed women a minimum wage in the District of Columbia on the grounds that low wages were detrimental to health and contributed to poor morals. Children’s Hospital filed suit, alleging that the law was unconstitutional because it fixed wages in clear violation of the freedom of contract, a position upheld by the Court, with Holmes joining Chief Justice William H. Taft in dissent. Justice George Sutherland’s opinion for the 5-3 majority agreed with Children’s Hospital and also found the minimum-wage law burdened employers with welfare responsibilities more properly left to society as a whole. Holmes daringly challenged the freedom of contract
On January 3, 1911, the Court handed down two opinions gratifying to Progressives. In the first, Noble State Bank v. Haskell, Holmes wrote the unanimous opinion rejecting the bank’s claim. The Oklahoma legislature had voted to protect bank depositors with a Depositors’ Guaranty Fund built up by assessing banks 5 percent of their average daily deposits, and the Noble State Bank resorted to the due process clause of the Fourteenth Amendment to seek relief from the levy. Acknowledging that the bank had a case, Holmes nevertheless asserted that the Court should not subvert the state legislature’s attempt to provide for the public welfare without clear evidence of a law’s lack of public support.
However, if liberals were pleased with Holmes’s observations in this opinion, his dissent in the second case decided that day, Bailey v. Alabama,
Holmes’s first important free speech
Edward G. White’s Oliver Wendell Holmes, Jr. (New York: Oxford University Press, 2006) is a detailed study of Holmes’s entire life that is particularly well suited for young adult readers. Catherine Drinker Bowen’s Yankee from Olympus: Justice Holmes and His Family (Boston: Little, Brown, 1945) is a readable, admiring book that became a best-seller. Samuel J. Konefsky’s The Legacy of Holmes and Brandeis (New York: Macmillan, 1956) is a study in the influence of ideas. Another specialist study is Jeremy Cohen’s Congress Shall Make No Law: Oliver Wendell Holmes, the First Amendment, and Judicial Decision Making (Ames: Iowa State University Press, 1989), an exploration of the famous First Amendment case Schenck v. United States. In Justice Oliver Wendell Holmes: The Proving Years, 1870-1882 (Cambridge, Mass.: Harvard University Press, 1963), Mark DeWolfe Howe studies the period in which Holmes was formulating his philosophy of law. The first of three excellent modern biographies is Sheldon M. Novick’s Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown, 1989), which includes a useful chronology. Liva Baker’s The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991) combines close attention to the man with sharp analysis of the legal scholar. G. Edward White’s Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993) is an excellent biography that sees an understanding of Holmes’s life as basic to understanding the jurist. Bernard Schwartz’s supremely readable A History of the Supreme Court (New York: Oxford University Press, 1993) provides knowledgeable commentary on Holmes’s Court decisions. Holmes’s judicial career may also be studied in the context of the chief justices under whom he served. ABC-Clio’s reference series on chief justices is especially useful for this purpose. Its volumes include The Fuller Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2003) by James W. Ely, Jr.; The White Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2004) by Rebecca S. Shoemaker; The Taft Court: Justices, Rulings, and Legacy. (Santa Barbara, Calif.: ABC-Clio, 2003) by Peter G. Renstrom; and The Hughes Court: Justices, Rulings, and Legacy (Santa Barbara, Calif.: ABC-Clio, 2002) by Michael E. Parrish.
Buck v. Bell
Clear and present danger test
Contract, freedom of
Lochner v. New York
Pennsylvania Coal Co. v. Mahon
Rule of reason
Schenck v. United States