Biography of Oliver Wendell Holmes Jr., Supreme Court Justice

Oliver Wendell Holmes Jr. (March 8, 1841—March 6, 1935) was an American jurist who served as an associate justice of the Supreme Court of the United States from 1902 to 1932. One of the most often cited and influential Supreme Court justices in history, Holmes is noted for his defense of the First Amendment and creating the doctrine of “clear and present danger” as the only basis for limiting the right of freedom of speech. Retiring from the court at age 90, Holmes still stands as the oldest person to serve as a Supreme Court Justice. 

Early Life and Education

Holmes was born on March 8, 1841, in Boston, Massachusetts, to writer and physician Oliver Wendell Holmes Sr. and abolitionist Amelia Lee Jackson. Both sides of his family were rooted in the New England “aristocracy” of character and accomplishment. Raised in an atmosphere of intellectual achievement, young Holmes attended private schools before entering Harvard College. While at Harvard, he studied and wrote extensively on idealist philosophy and like his mother, supported the Boston abolitionist movement. Holmes graduated Phi Beta Kappa from Harvard in 1861. 

Immediately after the American Civil War broke out with the attack of Fort Sumter on April 12, 1861, Holmes enlisted as a private in the Union Army’s 4th Battalion Infantry, receiving his training at Boston’s Fort Independence. In July 1861, at age 20, Holmes was commissioned as a first lieutenant in the 20th Massachusetts Regiment of Volunteers. He took part in extensive combat, fighting in at least nine battles including the Battle of Fredericksburg and the Battle of the Wilderness. Seriously wounded in the battles of Ball’s Bluff, Antietam, and Chancellorsville, Holmes retired from the Army in 1864, receiving an honorary promotion to the rank of lieutenant colonel. Holmes once described war as “an organized bore.” Of his service, he humbly said, “I trust I did my duty as a soldier respectably, but I was not born for it and did nothing remarkable in that way.”

Despite having no clear vision of his future vocation at the time, Holmes enrolled in Harvard Law School in the fall of 1864. While at Harvard Law, he wrote an influential series of lectures later published in 1881 as “The Common Law.” In this work, Holmes explains what would become his signature judicial philosophy. “The life of the law has not been logic: it has been experience,” he wrote. “The substance of the law at any given time pretty nearly corresponds, so far as it goes, with what is then understood to be convenient.” Essentially, Holmes argues, as often reflected in his Supreme Court opinions, that the law and the interpretation of the law change according to the changing demands of history and adjust to what the majority of people believe is necessary and fair.

Early Legal Career and Marriage 

After graduating from Harvard in 1866, Holmes was admitted to the bar and practiced maritime and commercial law for fifteen years at several Boston law firms. After teaching briefly at the Harvard Law School, Holmes served on the Massachusetts Supreme Judicial Court from 1882 until his appointment to the U.S. Supreme Court in 1902. During his service on the Massachusetts court, Holmes issued notable and still cited constitutional opinions recognizing the rights of workers to organize trade unions and to conduct strikes and boycotts, as long as they did not encourage or incite violence. 

In 1872, Holmes married his childhood friend, Fanny Bowditch Dixwell. Fanny Holmes disliked Beacon Hill society and devoted herself to embroidery. She was described as devoted, witty, wise, tactful, and perceptive. Living on their farm in Mattapoisett, Massachusetts, their marriage lasted until Fanny’s death on April 30, 1929. Though they never had children together, the couple adopted and raise an orphaned cousin, Dorothy Upham. After Franny died in 1929, the grieving Holmes wrote of her in a letter to his friend, the English jurist Sir Frederick Pollock, “For sixty years she made life poetry for me and at 88 one must be ready for the end. I shall keep at work and interested while it lasts—though not caring very much for how long.”

Supreme Court Justice

Holmes was nominated to the United States Supreme Court by President Theodore Roosevelt on August 11, 1902. While Roosevelt had nominated Holmes on the recommendation of influential Senator Henry Cabot Lodge of Massachusetts, the nomination was opposed by Senator George Frisbie Hoar, chairman of the Senate Judiciary Committee. A vocal critic of imperialism, Hoar questioned the legality of the U.S. annexation of Puerto Rico and the Philippines, an issue that was expected to come before the Supreme Court in its upcoming session. Like Roosevelt, Senator Lodge was a strong supporter of imperialism and both expected Holmes to support the territorial annexations. On December 4, 1902, Holmes was unanimously confirmed by the United States Senate.

During the era of the “Insular Cases,” Holmes did vote to support Roosevelt’s position favoring annexing the former Spanish colonies. However, he angered Roosevelt when he voted against his administration’s position in the 1904 case of Northern Securities Co. v. United States, a major anti-monopoly case involving a violation of the Sherman Antitrust Act. Holmes’ characteristically stinging dissent in the case forever damaged his once-friendly relationship with Roosevelt.

Notable Opinions 

During his 29 years on the Supreme Court, Holmes issued still often-cited opinions on such widely diverse issues including contempt, copyright, patent, and trademark law, the oath of allegiance required for U.S. citizenship, and professional baseball’s exemption from antitrust labor laws.

Like many of the jurists of his day, Holmes viewed the Bill of Rights set out basic individual privileges that had been granted through centuries of English and American common law— that is law derived from judicial decisions instead of from legislative statute. Accordingly, he applied that view in many of his court opinions. Many modern jurists and legal scholars consider Holmes one of America’s greatest judges for his defense of the traditions of common law, many of which are now challenged by judicial originalists who believe the U.S. Constitution should be interpreted strictly according to how it was intended to be understood at the time it was adopted in 1787. 

Holmes wrote some of the most significant freedom of speech decisions ever handed down by the Court. In doing so, he clarified the previously unclear line between constitutionally protected and unprotected speech. In the 1919 case of Schenck v United States—a series of opinions surrounding the World War I Espionage Act of 1917 and the Sedition Act of 1918—Holmes first applied the “clear and present danger test,” establishing the principle that the First Amendment does not protect speech that could create a clear and present danger of the commission of “substantively evil" acts evil that Congress has the power to prevent. In Schenck v. United States, Holmes reasoned that the widespread distribution of leaflets urging young men to evade the military draft during wartime was likely to cause violent demonstrations and harm the war effort. He famously equated handing out the leaflets to yelling “Fire!” in a crowded theatre, which is not permitted under the First Amendment.

Writing the court’s unanimous decision, Holmes declared, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

Though Holmes rarely disagreed with the majority—writing only 72 dissenting opinions compared to 852 majority opinions during his 29 years on the U.S. Supreme Court—his dissents often showed uncanny foresight and carried so much authority that he became known as “The Great Dissenter.” As significant to the law as many of his dissents were, they sometimes angered Holmes’ fellow justices. At one time, Chief Justice and future President of the United States William Howard Taft complained of Holmes that “his opinions are short, and not very helpful.”

Many of Holmes’ opinions reflect his belief that laws should be made by legislative bodies, not by the courts, and that so long as they remained within the limits set by the Constitution and Bill of Rights, the people have the right to make whatever laws they choose to make through their elected representatives. In this manner, his decisions tended to give Congress and the state legislatures wide latitude in enacting laws on behalf of their visions of the common good and general welfare of the people. 

Retirement, Death, and Legacy

On his ninetieth birthday, Holmes was honored on one of the first coast-to-coast radio broadcasts, during which he was awarded a gold medal for “exceptionally distinguished service by a lawyer or lawyers to the cause of American jurisprudence” by the American Bar Association. 

By the time Holmes retired on January 12, 1932, at 90 years and 10 months of age, Holmes was the oldest justice to serve in the court’s history. His record has since been challenged only by Justice John Paul Stevens, who when he retired in 2020, was only 8 months younger than Holmes had been at retirement. 

In 1933, newly inaugurated President Franklin D. Roosevelt and his wife Eleanor visited the newly retired Holmes. Finding him reading the philosophies of Plato, Roosevelt asked him, “Why do you read Plato, Mr. Justice?” “To improve my mind, Mr. President,” replied the 92-year-old Holmes.

Holmes died of pneumonia in Washington, D.C. on March 6, 1935—just two days short of his 94th birthday. In his will, Holmes left much of his estate to the United States government. In a 1927 opinion, he had written that “taxes are what we pay for civilized society.” Holmes was buried beside his wife Fanny in Arlington National Cemetery.

With some of the funds Holmes left to the United States, Congress established the “Oliver Wendell Holmes Devise History of the Supreme Court of the United States” within the Library of Congress and created a memorial garden in his name at the Supreme Court building.

During his long career, Holmes became loved and admired by generations of lawyers and judges. When he retired from the Supreme Court, his “brethren,” as he typically addressed his fellow justices, wrote him a letter signed by all, saying in part:

“Your profound learning and philosophic outlook have found expression in opinions which have become classic, enriching the literature of the law as well as its substance. … While we are losing the privilege of daily companionship, the most precious memories of your unfailing kindliness and generous nature abide with us, and these memories will ever be one of the choicest traditions of the Court.”

Sources

• ^{Holmes, Oliver Wendell, Jr. “The Common Law.” Project Gutenberg EBook, February 4, 2013, https://www.gutenberg.org/files/2449/2449-h/2449-h.htm.}
• ^{“Holmes, Oliver Wendell, Jr. Harvard Law School Library Digital Suite.” Harvard Law School, http://library.law.harvard.edu/suites/owh/.}
• ^{Holmes, Oliver Wendell, Jr. “Collected Works of Justice Holmes.” University of Chicago Press, July 1, 1994. ISBN-10: ‎0226349632.} 
• ^{Healy, Thomas. “The Great Dissent: How Oliver Wendell Holmes Changed His Mind—and Changed the History of Free Speech in America.” Metropolitan Books, August 20, 2013, ISBN-10: ‎9780805094565.}
• ^{White, G. Edward. “Oliver Wendell Holmes Jr. (Lives and Legacies Series).” Oxford University Press, March 1, 2006, ISBN-10: ‎0195305361.}
• ^{Holmes, Oliver Wendell, Jr. “The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr.” University of Chicago Press, January 1, 1997, ISBN-10: ‎0226675548.}