Oliver Wendell Holmes, Jr.

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Oliver Wendell Holmes Jr. as a young man.
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Oliver Wendell Holmes Jr. as a young man.
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Oliver Wendell Holmes Jr. circa 1930.

Oliver Wendell Holmes the younger, (March 8, 1841March 6, 1935) was an American jurist noted for his hard-edged rejection of the prevailing property-rights ideology embraced by other judges of his time. He was called The Great Dissenter.

Holmes was born in Boston, Massachusetts, the son of the prominent writer and physician Oliver Wendell Holmes, Sr.. As a young man, Holmes loved literature and supported the abolitionist movement which raged among Boston Brahmins during the 1850s. He graduated from Harvard University in 1861.

Civil War experience

After graduation, Holmes joined the United States Army at the outset of the American Civil War. He saw much action, from the Peninsula Campaign to the Wilderness, and suffered wounds at the Battle of Ball's Bluff, Antietam, and Chancellorsville. He was mustered out in 1864 as a brevet Lieutenant Colonel. Many historians have traced Holmes' advocacy of legal realism as well as his hard-edged rejection of romanticism and natural rights theory to his war experiences. Holmes' letters to his parents during the war reflect a hard-bitten callousness to the loss of human life, a necessary defense mechanism for a man who had seen so many friends killed in so many bloody battles. Holmes recalled later that he was not a natural soldier but preferred intellectual pursuits.

One Civil War story involving Holmes is well known, but probably apocryphal: In July, 1864, the Confederate general Jubal Early conducted a raid north of Washington, D.C., and Abraham Lincoln came out to watch the troops skirmishing. At six foot four, with his stovepipe hat adding eight inches to his height, Lincoln stood on the parapet, watching smoke puffs from Confederate snipers, seemingly unafraid, even when an officer three feet from him was dropped by a Confederate bullet. A 23-year old Oliver Wendell Holmes saw this foolhardy target sticking up, and not realizing it was the President of the United States, shouted, "Get down, you damn fool, before you get shot!" Lincoln promptly obeyed.

Law practice and state judgeship

After the war's conclusion, Holmes returned to Harvard to study law, being admitted to the bar in 1866, and went into practice in Boston.

In 1870, Holmes became editor of the American Law Review. In 1881, he published the first edition of his well regarded book The Common Law. In 1882, he became both a professor at Harvard Law School and a justice of the Massachusetts Supreme Judicial Court. In 1899, he was appointed Chief Justice of the state court. He became known for his innovative, well-reasoned decisions, balancing property rights with rule by the majority, with the latter taking precedence over the former. He was one of the first to recognize workers' right to organize trade unions as long as no violence or coercion was involved, contrary to some earlier decisions by others who had argued that organized labor was by nature illegal.

Supreme Court

In 1902, Holmes was appointed to the United States Supreme Court. On the bench, Holmes was known for his pithy, short, and frequently-quoted opinions.

Holmes was often criticized both during his lifetime and after for his philosophical views, which were influenced by Charles Darwin and pragmatism. Holmes rejected moral theory and "natural rights" philosophy and embraced moral relativism. Thus, Holmes mostly rejected the doctrine of "substantive due process" and the idea that the constitution imposes certain substantive values on the political process, though he famously made an exception for government action that made him "puke." This "puke test" became the basis for the "shocks the conscience" test that Holmes' protege Felix Frankfurter promoted and is currently governing law in certain substantive due process cases. Holmes' judicial philosophy played a major role in shaping American Legal Realism, which emphasized the real-world impact of decisions and de-emphasized legal formalism and theory.

Holmes was a strong critic of the Supreme Court's "liberty of contract" doctrine, which was frequently invoked to strike down progressive economic legislation, most famously in the 1905 case of Lochner v. New York. Holmes dissent in that case, where he wrote "[A] Constitution is not intended to embody a particular economic theory," is one of the most-quoted in Supreme Court history. Holmes' own views on economics were influenced by Thomas Malthus and pseudo-Darwinian theories that emphasized struggle for a fixed amount of resources.

Holmes infamous decision in Buck v. Bell, 274 U.S. 200 (1927), where he justified compulsory sterilization of the retarded with the words "three generations of imbeciles are enough," is a notable instance of Holmes' Darwinism coming to the fore in his opinions.

However, Holmes' moral relativism influenced his strong advocacy of First Amendment speech rights on the bench. Holmes famously declared that one could not "shout fire in a crowded theatre" and formulated the "clear and present danger" test to evaluate government speech restrictions in 1919's Schenk v. United States, the first notable First Amendment "freedom of speech" opinion in the Court's history. Holmes believed that there is no absolute truth, and thus "free speech" stood as essential to the free dissemination of ideas.

Holmes also ruled (in Federal Baseball Club v. National League, 259 U.S. 200 (1922)) that professional baseball could not be subject to antitrust law because it was not interstate commerce in any way that could have been envisioned by the Constitution's framers. Holmes' opinion has become the basis for baseball's ongoing (as of 2005) "antitrust exemption."

Holmes served until January 12, 1932, when his brethren on the court, citing his advanced age (Holmes was, at 90, the oldest serving justice in the Court's history), hesitantly requested that he step down, and he complied. He died in Washington, D.C. in 1935, and was buried in Arlington National Cemetery.

The 1951 Hollywood motion picture The Magnificent Yankee was based on a play about his life.


Preceded by:
Horace Gray
Associate Justice of the Supreme Court of the United States
December 8, 1902January 12, 1932
Succeeded by:
Benjamin N. Cardozo

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