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[[Image:OWH.jpg|right|thumb|Oliver Wendell Holmes, Jr.]]

[[Image:OWH.jpg|right|thumb|Oliver Wendell Holmes, Jr.]]'''Oliver Wendell Holmes, Jr.''' (1841-1935) served on the United States [[Supreme Court]] for over 30 years and is an icon in American law schools. He is known for his elegant writing style and for dissenting from key decisions decades before the majority moved to his side of those issues.

'''Oliver Wendell Holmes, Jr.''' (1841-1935) served on the United States [[Supreme Court]] for over 30 years and is an icon in American law schools. He is known for his elegant writing style and for dissenting from key decisions decades before the entire Court moved to his side of those issues.  For example, Holmes dissented from [[Lochner doctrine]] as established ''Lochner v. New York'' (1905), in which the Supreme Court invalidated an economic regulation by the state of New York.    Decades later the Supreme Court rightly came to agree with Holmes' side of the case.

Holmes' grandfather was Abiel Holmes, a [http://www.pilgrim-platform.org/conghistory.htm Congregationalist] minister of [[Puritan]] stock. Abiel's son, Oliver Wendell Holmes, Sr., abandoned his father's Congregationalism for [[Unitarianism]],<ref>“[http://query.nytimes.com/mem/archive-free/pdf?_r=1&res=9406E3D7103AEF34BC4051DFB3668382649FDE Speech of Oliver Wendell Holmes at the Unitarian Convention in Boston]”, ''The New York Times'', May 28, 1859</ref> and was accused by [http://www.pbs.org/wgbh/amex/grant/peopleevents/p_adams.html Henry Adams], grandson of President [[John Quincy Adams]], of preaching “wild [[atheism]].”<ref>Jacob Clavner Levenson, ed., ''[http://books.google.com/books?id=VAkJAQAAIAAJ The Letters of Henry Adams: 1868-1885]'', (Cambridge, Mass.: Harvard University Press, 1988) ISBN 0674526856, pp. 274-275</ref>

But critics of Justice Holmes observe that although he was highly moral in his youth, fighting against [[slavery]] in the Civil War, he became increasingly amoral and utilitarian as a justice.  They criticize Justice Holmes when he upheld the forced sterilization of a young woman on the grounds that she had a low IQ. "Three generations of imbeciles are enough," Justice Holmes' bellowed in his harshly utilitarian style in ''[[Buck v. Bell]]'', 274 U.S. 200 (1927). Holmes was a believer in Darwinism and sought to apply it to the law and to life, as urged by [[social Darwinism]].

"[D]eeply moved by the [[Abolition]] cause,"<ref>G. Edward White, ''[http://books.google.com/books?id=sGDdFZ-vIi8C Justice Oliver Wendell Holmes: Law and the Inner Self]'' (Oxford University Press, 1995) ISBN 0195101286, p. 31</ref> Holmes left [[Harvard University]] to volunteer for the Union Army in the [[Civil War]], which he called “the [[Christian]] [[Crusade]] of the 19th century.”<ref>G. Edward White, ''[http://books.google.com/books?id=sGDdFZ-vIi8C Justice Oliver Wendell Holmes: Law and the Inner Self]'' (Oxford University Press, 1995) ISBN 0195101286, p. 70</ref> Holmes was strongly affected by his experiences in the war. “[I]t's odd how indifferent one gets to the sight of death&mdash;perhaps, because one gets aristocratic and don't value much a common life,” he wrote. “Then they are apt to be so dirty it seems natural.”<ref>Holmes to his mother, December 12, 1862, reprinted in Mark De Wolfe Howe, ed. ''[http://ia331333.us.archive.org/3/items/touchedwithfirec012619mbp/touchedwithfirec012619mbp.pd Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-1864]'' (Cambridge, Mass.: Harvard University Press, 1947), p. 71 p. 78 (PDF p. 100)</ref>

After editing the ''American Law Review'' early in his career, he wrote ''The Common-Law'' in 1881. The following year he became a professor of law at Harvard, and two decades later he was appointed to the Massachusetts Supreme Court in 1899. In 1902 President [[Theodore Roosevelt]] appointed him to the [[United States Supreme Court]] in 1902, where he served until the age of 90, when his colleagues suggested his resignation. He died a few years later.

After editing the ''American Law Review'' early in his career, Holmes wrote ''The Common-Law'' in 1881. The following year he became a professor of law at Harvard, and two decades later he was appointed to the Massachusetts Supreme Court. In 1902 President [[Theodore Roosevelt]] appointed him to the [[United States Supreme Court]], where he served until the age of 90, when his colleagues suggested his resignation. He died a few years later. As a Supreme Court Justice, among his law clerks were the brothers [[Alger Hiss|Alger]] and [[Donald Hiss]].

Holmes's utilitarian judicial philosophy is best summed by his famous quote that "The life of the law has not been logic, but experience."  His own migration away from the uninformed Christianity of his youth can be seen in his advice as an old man to the younger generation:  "Young man, the secret of my success is that at an early age I discovered that I was not God." However such a statement may merely have been made to clarify a long running rumor of Holmes's omnipotence.  

Originally a devout [http://plato.stanford.edu/entries/transcendentalism/ Emersonian],<ref>Deirdre N. McCloskey, ''[http://books.google.com/books?id=-A296D5B2FoC The Bourgeois Virtues: Ethics for an Age of Commerce]'' (University of Chicago Press, 2006) ISBN 0226556638, p. 193</ref> Holmes' experience of war transformed him from mild Unitarianism into skepticism, and ultimately Darwinian atheism.<ref>J. David Hoeveler, ''[http://books.google.com/books?id=CKssAAAAYAAJ The Evolutionists: American Thinkers Confront Charles Darwin, 1860-1920]'' (Lanham, Md.: Rowman & Littlefield, 2007) ISBN 074251174X, p. 194</ref> He was wounded, later writing:

{{cquote|when I thought I was dying the reflection that the majority vote of the civilized world declared that with my opinions I was en route for Hell came up with painful distinctness.... then I thought I couldn't be guilty of a deathbed recantation.... Besides, thought I, can I recant if I want to, has the approach of death changed my beliefs much? & to this I answered&mdash;No.... and so with a “God forgive me if I'm wrong” I slept....<ref>G. Edward White, ''[http://books.google.com/books?id=sGDdFZ-vIi8C Justice Oliver Wendell Holmes: Law and the Inner Self]'' (Oxford University Press, 1995) ISBN 0195101286, pp. 73-74</ref>}}

Although Justice Holmes retains an almost saint-like reverence in American law schools, there are actually few judges or law professors who follow his legal philosophy today. An example of a utilitarian judge today would be Judge Richard Posner of the [[Seventh Circuit|Seventh Circuit Court of Appeals]], who wrote a book in tribute of Justice Holmes.

As the father of “legal realism,” Holmes' great mission was to divorce law from all concepts of morality and ethics. He wrote, “I often doubt whether it would not be a gain if every word of moral significance could be banished from the law altogether.”<ref>Oliver Wendell Holmes Jr., “The Path of the Law,” ''[http://books.google.com/books?id=JvEoAAAAYAAJ Harvard Law Review'', Vol. X], No. 8 (March 25, 1897), p. 464</ref> He was a “moral [[nihilism|nihilist]]”;<ref>David Luban, ''[http://books.google.com/books?id=1LSihhEt83oC Legal Modernism: Law, Meaning, and Violence]'' (Ann Arbor, Mich.: University of Michigan Press, 1997) ISBN 0472084399, p. 29</ref> in addition, his ideas included [[Skepticism]], [[Materialism]], [[Utilitarianism]], [[Pragmatism]], and “[[Friedrich Nietzsche|Nietzschean]] vitalism and 'will to power.'”<ref>Richard A. Posner, ed., ''[http://books.google.com/books?id=HamEkfqdMcEC The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.]'' (University of Chicago Press, 1997) ISBN 0226675548, pp. xvi, xix-xx</ref>

== Specific Views ==

==Might Makes Right==

Justice Holmes was fond of saying that insofar as government is the prerequisite for the fruits of civilization for which we pay taxes. ''See, e.g.'', ''Compania de Tabacos v. Collector'', 275 U.S. 87, 100 (1927) (Holmes, J., dissenting).

Holmes was not a fan of human rights. “All my life I have sneered at the natural rights of man,” he wrote Laski.<ref>Holmes to Laski, August 6, 1917, reprinted in Mark De Wolfe Howe, ed., ''[http://books.google.com/books?id=q_MfA5IcTxoC Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935'', Volume 1] (Harvard University Press, 1953), p. 96</ref> “You respect the rights of man,” he wrote. “I don't, except those things a given crowd will fight for.”<ref>Holmes to Laski, June 1, 1927, reprinted in Mark De Wolfe Howe, ed., ''[http://ia331339.us.archive.org/1/items/holmeslaskilette017767mbp/holmeslaskilette017767mbp.pdf Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935'', Volume 2] (Harvard University Press, 1953), p. 948 (PDF p. 148)</ref> Elsewhere, he wrote that human rights are merely what a given crowd will fight for “successfully.”<ref>Holmes to Laski, December 3, 1917, reprinted in Mark De Wolfe Howe, ed., ''[http://books.google.com/books?id=q_MfA5IcTxoC Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935'', Volume 1] (Harvard University Press, 1953), p. 115</ref>

Justice Holmes wrote the 5-4 decision upholding [[rent control]] and denying a claim for repossession by a property owner. ''[[Block v. Hirsh]]'', 256 U.S. 135 (1921).  Justice Holmes made no mention of the [[Fifth Amendment]] protection of private property in his opinion.

 

Holmes' denial of rights included property rights. Justice Holmes wrote a 5-4 decision upholding [[rent control]] and denying a claim for repossession by a property owner.<ref>''[[Block v. Hirsh]]'', 256 U.S. 135 (1921)</ref> Holmes made no mention of the [[Fifth Amendment]] protection of private property in this opinion.

 

Holmes' also denied the right to contract. In ''Lochner v. New York'',<ref>[http://supreme.justia.com/us/198/45/case.html ''Lochner v. New York'', 198 U.S. 45] (1905)</ref> the Supreme Court ruled that a New York law restricting the hours bakers could work violated Article 1, Section 10, of the [[United States Constitution]] ("No State shall... pass any... Law impairing the Obligation of Contracts")<ref>[http://www.archives.gov/exhibits/charters/constitution_transcript.html Constitution of the United States], National Archives</ref> and Section 1 of the XIV Amendment ("No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law").<ref>[http://www.archives.gov/exhibits/charters/constitution_amendments_11-27.html Constitution of the United States, Amendment 11-27], National Archives</ref> The majority held that these clauses protected all liberty, including economic liberty, and specifically the freedom to  contract&mdash;then still recognized among the “unenumerated rights” protected by the [http://www.archives.gov/exhibits/charters/bill_of_rights_transcript.html IX Amendment].<ref>Bernard H. Siegan, "Rehabilitating Lochner," ''San Diego Law Review'' 22 (1985), p. 453; cf. David E. Bernstein (2003), ''[http://www.law.gmu.edu/assets/files/publications/working_papers/03-18.pdf Lochner Era Revisionism, Revised: Lochner and the Origins of Fundamental Rights Constitutionalism]'', Law and Economics Working Paper Series 03-18, George Mason University</ref> In his dissent, Holmes  implied that economic liberty was not constitutionally protected, with his famous aphorism “The Fourteenth Amendment does not enact Mr. [[Herbert Spencer]]'s ''[http://books.google.com/books?id=jU0xAAAAMAAJ Social Statics]''.” Under the threat of  [[Franklin Roosevelt]]'s "court-packing" plan,<ref>Paul Volpe, [http://xroads.virginia.edu/~MA02/volpe/newdeal/court.html Court Packing: Judicial Reorganization and the End of the New Deal], The Real Deal: The Battle to Define FDR's Social Programs, American Studies,  University of Virginia</ref> the Supreme Court came to see the wisdom of adopting Holmes' (and Roosevelt's) view of the matter.<ref>Richard Epstein, “The Mistakes of 1937,” 11 ''George Mason University Law Review'' 5, 13-20 (Winter 1988)</ref>

 

Holmes' [[atheism]] and [[Darwinism]] led him to deny [[Christian]] values such as respect for [http://www.vatican.va/holy_father/paul_vi/encyclicals/documents/hf_p-vi_enc_25071968_humanae-vitae_en.html human life]. “I see no reason for attributing to man a significance different in kind from that which belongs to a baboon or a grain of sand,” he wrote.<ref>Holmes to Frederick Pollock, August 30, 1929, in Richard A. Posner, ed., ''[http://books.google.com/books?id=HamEkfqdMcEC The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.]'' (University of Chicago Press, 1992), p. 108</ref> The “sacredness of human life,” according to Holmes, “is purely a municipal ideal of no validity outside the jurisdiction.”<ref>Jesse H. Choper, ed., ''[http://books.google.com/books?id=yviGAAAAIAAJ The Supreme Court and Its Justices]'' (American Bar Association, 1987) ISBN 0897072901, p. 232</ref> “All 'isms seem to me silly,” he wrote socialist<ref>Gary Dean Best, ''[http://books.google.com/books?id=YDusnza0zTcC Harold Laski and American Liberalism]'' (New Brunswick, N.J.: Transaction Publishers, 2005) ISBN 076580266X, p. 5</ref> Harold Laski, “but this hyperaethereal respect for human life seems perhaps the silliest of all.”<ref>Holmes to Laski, April 13, 1929, reprinted in Mark De Wolfe Howe, ed., ''[http://ia331339.us.archive.org/1/items/holmeslaskilette017767mbp/holmeslaskilette017767mbp.pdf Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935]'', Volume 2 (Harvard University Press, 1953), p. 1146 (PDF p. 346)</ref> He asked another correspondent, “Doesn't this squashy sentimentality... about human life make you puke?”<ref>Sheldon M. Novick, ''[http://books.google.com/books?id=JhPYAAAAMAAJ Honorable Justice: The Life of Oliver Wendell Holmes]'' (Dell Publishing, 1990) ISBN 0440503256, p. 469</ref> His opinion of his fellow man was not charitable. “I loathe the thick-fingered clowns we call the people,” he wrote, calling them “vulgar, selfish, and base.”<ref>Mark De Wolfe Howe, ed. ''[http://ia331333.us.archive.org/3/items/touchedwithfirec012619mbp/touchedwithfirec012619mbp.pdf Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr., 1861-1864]'' (Cambridge, Mass.: Harvard University Press, 1947), p. 71 (PDF p. 93)</ref>

 

 

 

 

of a state law for sterilizing imbeciles the other day,” he wrote Laski, “and felt that I was getting near to the first principle of real reform.”<ref>Holmes to Laski, May 12, 1927, reprinted in Mark De Wolfe Howe, ed., ''[http://ia331339.us.archive.org/1/items/holmeslaskilette017767mbp/holmeslaskilette017767mbp.pdf Holmes-Laski Letters: The Correspondence of Mr. Justice Holmes and Harold J. Laski, 1916-1935]'', Volume 2 (Harvard University Press, 1953), p. 942 (PDF p. 141)</ref> As his biographer Sheldon Novick comments, Holmes “in personal letters seemed to espouse a kind of fascist ideology.”<ref>Sheldon M. Novick, ''[http://books.google.com/books?id=JhPYAAAAMAAJ Honorable Justice: The Life of Oliver Wendell Holmes]'' (New York: Dell Publishing, 1990) ISBN 0440503256, p. xvii</ref>

 

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[[category:United States Supreme Court Justices]]

[[category:United States Supreme Court Justices]]