What Legacy Are We Leaving? Reflections on Oliver Wendell Holmes, Jr.

Last updated on: March 26, 2017 at 2:00 pm by Carl Gregg

What Legacy Are We Leaving? Reflections on Oliver Wendell Holmes, Jr. 2017-03-25T12:38:27-04:00 Carl Gregg

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(This post is a continuation of my previous post on The Legacy of Oliver Wendell Holmes, Jr. — for Today.)

In 1902, President Theodore Roosevelt appointed Holmes to the United States Supreme Court. Despite Holmes’s accomplishments, the single greatest factor that led to his Supreme Court appointment is that in the summer of 1884 Holmes had been one of the few people who publicly stood by his friend Henry Cabot Lodge during a political controversy. Although Holmes did not know it at the time, it turns out that, “Lodge never forgave an enemy, but he also never forgot a friend” (342). And two decades later, Lodge was the person Roosevelt trusted to recommend the best nominee for the high court (340).

Over time, Holmes has been increasingly remembered as a liberal jurist. People seem to remember what might be called “his civil libertarian outbursts,” but they were “in fact rarer and less libertarian than was often thought.” People also “seem to remember his support for legislation that promised social and economic reform,” but the truth is there were many other cases in which he was not particularly concerned with equality. “Holmes’s record in civil rights cases during his three decades on the Supreme Court was mixed but leaned toward support of Southern customs.” (386). And in general, his judgements were a little more favorable to [African-Americans] when civil rights were involved than when property rights were the issue” (386). It was said that, whereas his fellow Supreme Court Justice Louis Brandeis had “sympathy of the oppressed,” Holmes had “contempt for the oppressor” (588). And privately it was clear that Holmes never sought to be a hero to progressives; rather, his desire was to be well regarded as a philosopher of the law (508).

There is one final set of cases I should mention. World War I lasted a little more than four years from 1914 to 1918. Toward the end of the war in 1917, Congress passed the Espionage Act both to protect military secrets and to prevent “obstruction of military recruitment or operations.” A year later in 1918, Congress passed the Sedition Act aimed at suppressing any dissent to the war with heavy fines and years of jail time for “discouragement of recruiting” or “utterances of ‘disloyal or abusive language’ about the government, the conduct of the war, the Constitution, even the flag or uniform” (511).

Almost two thousand U.S. citizens were prosecuted under those two laws for “speeches, books, newspaper articles, and pamphlets,” although “one U.S. attorney estimated that at least 90 percent of alleged pro-German plots never existed” (512). Those were the circumstances in which Holmes in March 1919, writing for the unanimous justices in Schenck v. United States, penned some of history’s most famous words against free speech:

The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic…. The question in every case is whether the words used are used in circumstances and are of such a nature as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent. It is a question of proximity and degree. (523-524)

And while I admire the brilliance of Holmes’s prose, I think he was wrong to criminalize U.S. citizens who were merely distributing fliers raising alternative perspectives to the loud drumbeat of war recruiting.

Fascinatingly, Holmes was also conflicted about his opinion in Schenck, and—in the wake of further study and debates with friends and colleagues—less than a year later in November 1919 he changed his mind. He wrote a dissent (joined by Brandeis) in Abrams v. United States that becomes one of the “most quoted justifications for freedom of expression in the English-speaking world”:

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…. 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 purpose of the law that an immediate check is required to save the country. (540)

As the fever of war began to break, Holmes’s reconsidered defense of free speech would come to have a “prominent place in American constitutional history” (547).

There is one other significant case that we have not addressed. Buck vs. Bell in 1927 is arguably the most egregiously wrong majority opinion Holmes ever wrote (598). But I am setting it aside because it will serve as a bridge to two posts planned for next week. For now, let us turn to the end of Holmes’s life.

In 1929, after almost sixty years of marriage, Holmes’s beloved Fanny died. Holmes was devastated. Fascinatingly, instead of a minister stepping in to help, Holmes’s fellow Unitarian on the Supreme Court, Chief Justice William Howard Taft made the memorial arrangements. Apparently, Taft “knew how to run a Unitarian funeral” (619). In between serving as the 27th President of the United States (1909 – 1913) and the 10th Chief Justice of the Supreme Court (1921-1930), Taft had been president of the Unitarian National Conference (1915-1925) and Vice-President of the American Unitarian Association (1916-1922). Needless to say, a future sermon on Taft is forthcoming.

But returning our focus to Holmes, in 1931, two years after Fanny’s death and less than two months before his ninety-first birthday, he finally resigned from the Supreme Court. In his final few years, he did not keep up with the business of the court (628). Instead, he kept himself occupied both with non-fiction (primarily philosophy and history) and with what he described as a new “consuming weakness” for detective novels, including Agatha Christie and Dashiell Hammett (640). On March 6, 1935, Oliver Wendell Homes, Jr. died of bronchial pneumonia, two days before what would have been his ninety-fourth birthday (642). His funeral was held on his birthday at All Souls’ Church, Unitarian in Washington, D.C. (643).

Now, I haven’t forgotten to come back to Holmes’s aphorism, “I really like paying taxes. It is buying civilization.” He wasn’t joking. He and Fanny never had children (227-230). So, “After making a few small bequests to the servants and his nephew, he left…a little more than a quarter of a million dollars—to the United States government without explanation.” Congress, of course, did what Congress does: they appointed a study committee which eventually recommended that the funds be used to produce a definitive multivolume history of the United States Supreme Court (642). To date, ten large volumes have been published with three additional volumes currently in the works to take the set through end of the Warren Court in 1969.

In reflecting on the life and legacy of Oliver Wendell Holmes, Jr., I have been inviting us to wrestle with some of the messiness and complexity that is the reality of his—or any other person’s—life. But despite his flaws (and with awareness of the number of times he helped perpetuate an unjust status quo through either his actions or inaction), there were times when Holmes acted significantly to help create a more just world—both in his own day and with ripples that continue even into our own time. And so, the question arises for us too: within our sphere of influence, how might we act for peace and justice in the days to come? What will our children, grandchildren, and great-grandchildren say about the legacy they inherit from us?

The Rev. Dr. Carl Gregg is a certified spiritual director, a D.Min. graduate of San Francisco Theological Seminary, and the minister of the Unitarian Universalist Congregation of Frederick, Maryland. Follow him on Facebook (facebook.com/carlgregg) and Twitter (@carlgregg).

Learn more about Unitarian Universalism: http://www.uua.org/beliefs/principles

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