The Great Dissenter

YANKEE FROM OLYMPUS -- Catherine Drinker Bowen -- Little, Brown ($3).

Since the late great Justice Holmes died, in 1935, he has been the subject of eight books and 47 major articles. The latest is the most romantic -- a fictionalized biography by Catherine Drinker Bowen, co-author with Barbara Von Meek of Beloved Friend (TIME, Feb. 1, 1937), fictionalized biography of the Russian composer Peter Tchaikovsky.

There were only 27 states in the U.S. when Oliver Wendell Holmes was born (1841). William Henry (Tippecanoe) Harrison was President. Daniel Webster was Secretary of State. The best people believed in a twelve-hour day for work men ("The morals of the operatives," said one observer, "will necessarily suffer if longer absent from the wholesome discipline of factory life").

Wrens and Marmalade. Young Wendell was raised among Boston's Brahmins by a father whose eccentricities plagued his son more than a storm of briefs. Dr. Holmes was noted professionally for his researches into puerperal fever. But he was famous as an indefatigable essayist and light versifier. His Autocrat of the Breakfast Table had impressed even the Germans -- who read it under the some what imperious title, Der Tisch-Despot.

Autocrat Holmes presided over a family (he had two boys, one girl) who chattered like "a nest of wrens" (whoever was wittiest at table was awarded an extra spoon ful of marmalade). "Don't take it so hard, Wendell," said Uncle John Holmes when the doctor wrote whimsical articles about his son in the Atlantic Monthly. "You will get used to your father. I did, long ago."

Holmes was in his final year at Harvard when Fort Sumter was bombarded. He was commissioned a lieutenant in the Twentieth Massachusetts Infantry, was wounded three times. The second time, as he lay near death in a cornfield, a passing chaplain murmured: "You're a Christian, aren't you? Well then, that's all right." The third time his right heel was almost torn off. Captain Holmes kept the wound open with a sliver of carrot. "I pinched W's heel a little the other day," wrote his jolly father, "and asked him into what vegetable I had turned his carrot. No answer. Why, into a Pa's nip! was my response." "War," growled his son, "is an organized bore."

Felt Necessities. Privately, the 27-year-old ex-soldier had other views about his experience. "We [soldiers]," he said, "have learned that whether a man accepts from Fortune her spade and will look downward and dig, or from Aspiration her axe and cord and will scale the ice, the one and only success which it is his to command is to bring to his work a mighty heart." But when Emerson talked to him passionately of the work of reconstruction that lay ahead, young Holmes felt no crusader's impulse. "Merely, he desired to use his brain, drive it to its fullest .capacity ... to examine . . . the laws of social being, the pattern men followed in their lives. One morning he knocked on the door of his father's study, announced: 'I am going to the Law School.' The doctor was shocked. 'What's the use of that, Wendell?' he cried. 'A lawyer can't be a great man.' "

Law became young Holmes's great passion. In the course of his law studies he visited John Stuart Mill--whose philosophy came closest to a jurisprudence based not on precedents but on what Holmes called "the felt necessities of the time."

At 31, young Holmes married an old friend, Fannie Dixwell. They lived in Dr. Holmes's house, because Wendell was making hardly any money. Laboriously, conscientiously he revised and updated Kent's famed legal Commentaries. Then he slaved on a work of his own, The Common Law, in which words like "logic," "rule," "syllogism" were replaced by such unlegal expressions as "experience," "expediency," "necessity," "life." Soon Harvard's admiring President Eliot offered Holmes a professorship of law. A year later Holmes took his seat on the Massachusetts Supreme Court Bench. "So you are the son of the celebrated Oliver Wendell Holmes?" asked an Englishman after Holmes became Massachusetts Chief Justice. "No," replied Holmes. "He was my father."

"The Constitution," said the new Justice, "is an experiment, as all life is an experiment." Holmes was "like rum to the other judges." But those who feared he would express his broad theories in frequent dissents were disappointed. In the newly begun battle between organized labor and the corporations, Justice Holmes dissented from his colleagues only twice in seven years. In the next five years he delivered two stirring dissents upholding workingmen's right to strike and form picket lines.

Finger in the Machinery. When trust-busting Roosevelt I appointed Holmes to the U.S. Supreme Court, Holmes at once disappointed T.R. by supporting Railroad Tycoons James J. Hill and J. P. Morgan in an antitrust case. Said the new Justice in his first Supreme Court dissent: "Great cases like hard cases make bad law. For great cases are called great not by reason of their real importance in shaping the law of the future but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment. ... We must read the words before us as if the question were whether two small exporting grocers shall go to jail." Cried Roosevelt: "I could carve out of a banana a judge with more backbone than that!"

To his colleagues, Holmes was a strange fish. He gave his opinions briefly, spontaneously (some Justices took six months). When lawyers complained, Holmes roared: "May God twist my tripes if I string out the obvious for the delectation of fools!" As soon as an attorney began to speak, Holmes whipped out his pocket notebook, took notes. Eagerly he would await what he called the point of contact: "the formula--the place where the boy got his finger pinched in the machinery." Sometimes he caught onto it in the first five minutes, would promptly doze off.

The older Holmes grew, the younger he acted. He liked to challenge the earnest young Liberals--Francis Hackett, Walter Lippmann, Herbert Croly, Felix Frankfurter--who flocked around him: "What is it? Tell me, I'll take the opposite side." "These young men," he complained, "are so damned solemn." He was painted by Artist Charles Hopkinson in the full glory of his judicial robes. "That isn't me," said Holmes, "but it's a damn good thing for people to think it is." When Justice McReynolds snapped a question at a green young lawyer, Holmes woke with a start, barked: "I wouldn't answer that question if I were you," fell back into a doze. When he lost his temper because his secretary mislaid a book, Mrs. Holmes found the volume, stuck an American flag in it and a big sign: "I AM A VERY OLD MAN. I HAVE HAD MANY TROUBLES, MOST OF WHICH NEVER HAPPENED." When he read the sign, Holmes laughed till he cried.

Last Judgment. Holmes was in his 80s when people began to call him The Great Dissenter. Holmes was annoyed. How could he help dissenting,* he asked, when the Supreme Court rendered such illiberal decisions? "There is nothing," he protested, "that I more deprecate than the use of the Fourteenth Amendment ... to prevent the making of social experiments that an important part of the community desires . . . though the experiments may seem futile or even noxious to me. . . ."

In March 1931, during a radio broadcast on his 90th birthday, Justice Holmes quoted a line from Latin Poet Virgil: "Death plucks my ear and says, Live--I am coming." Two years before Holmes's death newly elected President Franklin Delano Roosevelt, paying a social call, found the Justice reading Plato. Asked President Roosevelt: "Why do you read Plato, Mr. Justice?" Said Justice Holmes: "To improve my mind, Mr. President."

* Some famous Holmes dissents: Coppage v. Kansas (1915), which gave employers the right to require nonunion pledges as a condition of employment; United States v. Schwimmer (1929), which denied citizenship to Rozika Schwimmer because she testified at her citizenship hearing that she would not bear arms in case of war.

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