Oliver Wendell Holmes Jr. is among the most famous of the U.S. Supreme Court justices. Born to a prominent Boston family, Holmes was wounded at the Civil War battles of Ball’s Bluff, Antietam and Chancellorsville. After graduating from Harvard Law School in 1866, he prepared a series of lectures that were published as “The Common Law” in 1881. Holmes then served on the Supreme Judicial Court of Massachusetts from 1882 until his appointment to the U.S. Supreme Court in 1902. During his 30 years with the country’s highest court, he became known for his “clear and present danger” argument for the limitation of free speech and his convincing dissents.
Holmes was the son of an important Boston family. Through his father, a distinguished doctor and writer-poet, he was brought into contact with leading New England thinkers, drawing from them not only ideas but also the desire to achieve great things intellectually.
Holmes graduated from Harvard College in 1861, but the most formative influence on his life was his service in the Civil War. He was seriously wounded three times, experiences that led him to develop a harsh, unsentimental view of life as endless conflict, with an individual’s destiny in the hands of an almost whimsical Fate.
After graduating in 1866 from the Harvard Law School (which he found a notably uninspiring institution), Holmes briefly practiced law and then devoted the next decade to the preparation of lectures on the history and structure of the common law. These lectures, published as The Common Law in 1881, brought him lasting fame. He emphasized both that the ‘life of the law has not been logic: it has been experience’ and that the law develops according to the ‘felt necessities of the time’ rather than according to any set of deductive premises.
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After teaching briefly at the Harvard Law School, Holmes was appointed in 1882 to the Supreme Judicial Court of Massachusetts where he served until President Theodore Roosevelt appointed him to the U.S. Supreme Court in 1902. He served on that Court until 1932. Although many of his most notable opinions were written as dissents, he was probably the most important member of the Court during his long tenure because these opinions reflected and shaped the consciousness of the time. Although he was far more a social Darwinist than a social reformer, his very respect for brute power led him to give state legislatures and Congress vast discretion to legislate in behalf of their visions of the general welfare. He wrote powerful dissents in cases such as Lochner v. New York (1905), in which the Court struck down a New York law limiting the workweek of bakers, and Hammer v. Dagenhart (1918), in which the Court ruled invalid a congressional statute prohibiting child labor. Political progressives cited his views, which would become settled law after his death with the appointment by President Franklin D. Roosevelt of Felix Frankfurter and others who had drunk deeply from Holmes’s well.
Also contributing to his influence was his talent for the pithy aphorism. Thus, in Lochner, Holmes attacked the economic laissez-faire position of the majority by noting that ‘the Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics,’ and he went on to say that ‘the Fourteenth Amendment is perverted when it is held to prevent the natural outcome of a dominant opinion.’ Perhaps his best-known phrase is from Schenck v. United States, where he introduced the ‘clear-and-present-danger’ test as a means of limiting the power of the state to restrict speech and illustrated it by reference to a person’s ‘falsely shouting fire in a theater.’ His later development of this test, coupled with his emphasis on a basically unregulated ‘marketplace of ideas,’ was seminal for the development of modern free-speech law.
His retirement in 1932 was a national event, and he has remained, along with John Marshall, among the best known of all those who have served on the Supreme Court.
The Reader’s Companion to American History. Eric Foner and John A. Garraty, Editors. Copyright © 1991 by Houghton Mifflin Harcourt Publishing Company. All rights reserved.