Introduction
Justice Oliver Wendell Holmes Jr. is one of the few modern judges whose reputations have survived the twentieth century's culture wars relatively intact. Among his contemporaries Louis Brandeis, Benjamin Cardozo, and Learned Hand, Holmes was the first to become a judicial and cultural icon. Although Holmes's judicial reputation has fluctuated wildly since his death,Footnote 1 his canonical status is unquestioned.Footnote 2 His opinions, like those of Brandeis, are often quoted in high-profile Supreme Court decisions.Footnote 3 Popular historians continue to be fascinated with his life story.Footnote 4
G. Edward White, the preeminent Holmes scholar of his generation,Footnote 5 wrote a law review article about Holmes's and Brandeis's canonization arguing that they achieved “the status of professional and cultural icons in the decade of the 1930s.”Footnote 6 Their canonization, White asserted, began with a “grudging acceptance” and continued with “a dramatic upsurge in the amount of commentary . . . beginning in the late 1920s and extending through Brandeis's death in 1941.”Footnote 7 White tied their canonization to the rise of modernist epistemology. “The crucial element in Holmes's and Brandeis's canonization, then,” he wrote, “was the congeniality between their epistemological perspectives and those of commentators writing between the late 1920s and the early 1940s.”Footnote 8 White placed “[t]he elevation of Holmes's reputation in the late 1920s and 1930s” and described it as a “signal that modernist epistemology had begun to take root in the twentieth-century generation of legal reformers.”Footnote 9 White's canonization article recognized that Holmes was the quintessential twentieth century judge, and that many contemporary commentators tended to misconstrue Holmes's and Brandeis's jurisprudence in order to support their own reformist agendas.Footnote 10
White's canonization article, however, underplays the role of Frankfurter and other young progressives in initiating Holmes's canonization. In other scholarship, White has emphasized that Holmes's “reputation grew, in part because of Frankfurter's endless championing of his virtues”Footnote 11 and that Holmes surrounded himself with “the company of younger intellectuals to perpetuate his reputation . . . .”Footnote 12 White's canonization article failed to explore the key connection among these young intellectuals, why they gravitated to Holmes, and how, when, and why Holmes's canonization began.
This article argues that Holmes's canonization began in the 1910s with his association with young progressives who lived at and frequented a Dupont Circle row house known as the House of Truth. Felix Frankfurter, Walter Lippmann, and others with ties to Harvard or the New Republic turned the row house into the nation's capital's foremost intellectual and political salon. They invited Washington establishment figures for drinks and dinners. Holmes, who by the age of 70 had seen most of his closest friends and fellow Civil War veterans die, was a regular guest. And even though he did not subscribe to their progressive ideas, the members of the House of Truth adopted Holmes as their hero.
There are many different types of constitutional canons.Footnote 13 The canonization of a judge, however, is different than the canonization of a judicial opinion. A judge is canonized the way that saints are canonized, achieving an iconic or sacred status. Most judicial opinions are canonized the way poetry or literature becomes part of the literary canon.Footnote 14 A few opinions such as Brown v. Board of Education, however, achieve iconic or sacred status.Footnote 15 Although I have previously bifurcated the constitutional canon into upper and lower canons,Footnote 16 I now refer to two different types of canons: the sacred canon and the literary canon. Holmes and other judges join the former, his classic judicial opinions and other writings the latter.
The beginning of Holmes's canonization matters because it represents another example of canonization-not because of philosophical agreement but because of political instrumentalism. My previous canonization article highlighted an example of canonization as political instrumentalism, arguing that conservatives canonized Brown v. Board of Education. Footnote 17 Beginning with William Rehnquist's 1971 Supreme Court confirmation hearings, conservatives recognized that they could not participate in the constitutional conversation without affirming Brown's validity.Footnote 18 As a result, conservatives were able to get confirmed to the Court and control Brown's interpretation.Footnote 19
The House of Truth's and Holmes's mutual frustration with the Supreme Court led to his canonization. The House canonized him to launch a political attack on an antilabor Court. The Court had struck down state legislation under a liberty of contract theory and federal legislation based on a narrow conception of the Commerce Clause, legislation that would have furthered the House's progressive aims of leveling the playing field between labor and management. Rather than use the Court as an engine for social or political change, the progressives at the House of Truth viewed the Court as an obstacle. Their electoral hopes of constitutional change had ended with Theodore Roosevelt's failed 1912 presidential campaign. Canonizing Holmes replaced electing Roosevelt. With little hope in electoral politics or in finding five votes on the Court, the House of Truth's progressives clung to his dissents in Lochner v. New York and other labor cases. The House's canonization of Holmes exemplified nonjudicial constitutional change and an elitist version of popular constitutionalism.
Holmes participated in his own canonization because his association with the House of Truth's young progressives helped him achieve an elusive goal: immortality. At the age of 70, he was frustrated on the Court and considering retirement.Footnote 20 Despite having authored groundbreaking legal scholarship with The Common Law Footnote 21 and The Path of Law Footnote 22 and having sat for nearly 20 years on the Supreme Judicial Court of Massachusetts (including several as chief justice), Holmes was a relatively obscure justice overshadowed by the reputation of his more famous physician–poet father. His “jobbist” philosophy, doing his job better than anyone else, had failed to win him widespread recognition. Although he never espoused their reformist ideas, Holmes liked his young friends and sought to please them with his opinions. He exemplified what political scientist Laurence Baum has described as “judges writing for discrete audiences.”Footnote 23 The progressives at the House of Truth, in turn, helped Holmes eclipse the reputation of his father and cement his judicial legacy.
The House of Truth has been the subject of only one scholarly article.Footnote 24 Several biographers have described the House and its members in a paragraph or two.Footnote 25 The House, however, is treated as a sideline, and most historians rarely explore more than the usual sources.Footnote 26 This article relies on a web of extensive correspondence to understand the House's role in canonizing Holmes. This article was inspired not only by White's canonization article but also by the following sentence from his bibliographical essay: “Despite the widespread acknowledgment of the significance Frankfurter, Harold Laski, and their ‘progressive’ contemporaries played in the transformation of Holmes' reputation and arguably his rejuvenation on the Supreme Court, very little has been written on the relationships between Holmes and his younger friends.”Footnote 27 This alternative narrative about the House of Truth's role in Holmes's canonization attempts to fill the void. Part I explores Holmes's relative obscurity at the age of 70 and the origins of the House of Truth. Part II argues that members of the House of Truth began Holmes's canonization and explains how and why it occurred. Part III argues that Holmes participated in his own canonization by, among other things, writing for his discrete audience at the House of Truth.
I. Truth and Mephistopheles
A. Holmes at 70
During his first 10 years on the Court, Holmes was one of nine relatively obscure justices. In March 1911, a small story on page 2 of the Washington Post acknowledged his 70th birthday with a photograph and five terse paragraphs. The story mentioned that Justice Harlan had placed a “bouquet of violets” on Holmes's seat on the bench, that Holmes had served 9 years on the Court, that he had fought and been wounded in the Civil War, and that he had “rendered the famous decision on the beef trust case.”Footnote 28 The article said nothing about The Common Law, his Lochner dissent, or that he was any more renowned than the other eight justices. Several other newspapers mentioned Holmes's birthday in a single small paragraph.Footnote 29 Boston was the only place where he had achieved celebrity status, largely derived from sharing his famous father's name. In a 1911 series titled “Gems and Wit” and alluding to his father's poems, the Boston Globe published some of the younger Holmes's speeches.Footnote 30
As his 70th birthday approached, Holmes's frustration began to grow. “I have not had as much recognition as I should like,” he wrote to one female correspondent.Footnote 31 Holmes was so frustrated that, after 10 years on the Court (and his pension secure), he considered retirement. “It soon will be time for me to resolve whether I will leave when I have done my years (Dec. 8, 1912),” he wrote, “but not quite yet.”Footnote 32
One source of frustration was his Court colleagues. In 1908, he wrote to Nina Chipman Gray, “I sit in my library and scribble away when I am not in Court, and as of old my brethren pitch into me for being obscure and when I go nasty I say that I write for educated men – of course, as if referring to some others than my interlocutor. So all is happy, and once in a while I get some recognition that makes up for all the stupidities and the popular admiration for all that I detest.”Footnote 33 By referencing “as of old,” Holmes revealed his sensitivity to criticism during his 20 years on the Supreme Judicial Court of Massachusetts.Footnote 34 After his Supreme Court nomination, newspapers described him as “more brilliant than sound” and “more of a ‘literary feller’ than one often finds on the bench.”Footnote 35 His new colleagues did not appreciate his literary qualities. In 1911, he complained to Nina Gray that his “brethren pulled all the plums out of my pudding and left it rather a sodden mess. Tis ever thus. I get in a biting phrase and of course someone doesn't like it and out it goes.”Footnote 36 Three years later, he wrote to Nina's husband, John Chipman Gray, “The brethren are kind, friendly, able men, but for the most part the emphasis of their interests and their ideals are not the same as mine, and I happen at this moment to be realizing that our conception of the best way to do things is not the same. I daresay it is all the better that it should be so and I try to profit by it, but at times I have to fall back on Luther's Ich Kann nicht anders. [Here I stand. I cannot help it.]”Footnote 37 But even John Chipman Gray, one of Holmes's oldest and dearest friends, conceded to then-President Taft that Holmes's opinions “seem sometimes to lack lucidity.”Footnote 38
At the age of 70, Holmes recognized that he needed new friends.Footnote 39 Gray, his last old friend from Boston and fellow Civil War veteran, was suffering from heart disease and died in 1915.Footnote 40 And Holmes's intensely flirtatious correspondence and possibly amorous relationship with a British noblewoman, Lady Clare Castletown, had ebbed.Footnote 41
The celebrity of his father, a famous physician–poet who had died in 1894, loomed large.Footnote 42 Holmes enjoyed a complex and, at times, competitive relationship with his father, who had discovered a cure for puerperal fever and had written many popular books including Autocrat at the Breakfast Table. Even after Holmes had joined the Supreme Court, people continued to confuse him with his more famous father.Footnote 43
In 1911, Holmes knew that, despite having written The Common Law by the age of 40, his historical legacy was in doubt.Footnote 44 He was not disappointed when he had been passed over as chief justice in favor of his colleague Edward White; Holmes insisted to friends that his own “ambitions are so wholly internal that such events move me personally but little, except that when I read the newspapers the total absence of any critical appreciation tends to make me gloomy . . . .”Footnote 45 Holmes's ambitions were to be recognized among intellectual elites as “the greatest jurist in the world”Footnote 46 and not to be forgotten by history. He found an outlet for his frustration on the Court and a way of satisfying his ambitions with the House of Truth.
B. The House
Beginning in 1912, five young men turned a Dupont Circle row house at 1727 19th Street into a progressive salon. They threw lively, informal dinner parties, discussed their progressive ideas and the events of the day, and wooed attractive young women and high government officials with equal fervor. Three Supreme Court justices, one future United States president, ambassadors, generals, journalists, artists, lawyers, and many government officials frequented the parties; some became regular guests and even future residents. Holmes and his wife watched in awe one night as sculptor Gutzon Borglum sketched his idea for carving immortals into a mountainside on the dining room tablecloth; Herbert Hoover explained how he had orchestrated Belgian relief efforts during World War I; a French military officer brought tales from his country's battles on the front lines. “How or why I can't recapture,” original resident Felix Frankfurter recalled, “but almost everybody who was interesting in Washington sooner or later passed through that house.”Footnote 47
The House was more than a product of Frankfurter's fond reminisces. Its guiding spirit was a poet turned investment banker turned Indian affairs expert named Robert Valentine. During Theodore Roosevelt's administration, Valentine ascended through the ranks of the Bureau of Indian Affairs. As the commissioner of Indian affairs under Taft, Valentine emerged as one of the administration's leading progressive voices.Footnote 48 When Valentine's wife returned to Boston with their ailing infant daughter, Valentine opened his home to four like-minded friends.
Winfred Denison, Valentine's Harvard undergraduate classmate, had served as Henry Stimson's lead prosecutor in the Southern District of New York's sugar fraud cases. Denison joined the Taft Justice Department as assistant attorney general in charge of customs prosecutions.
Loring Christie, a Canadian citizen and former president of the Harvard Law Review, worked at Stimson's law firm and then for Denison in customs affairs.
Eustace Percy was not a progressive, Harvard graduate, or lawyer. An attaché to the British ambassador and the seventh son of the seventh Duke of Northumberland (and a descendant of William the Conqueror), Percy brought a transatlantic perspective to their progressive ideas about domestic reform and World War I.
Felix Frankfurter had worked on the sugar fraud prosecutions with Denison and at Stimson's law firm with Christie, and bonded with Valentine. If Valentine was the House of Truth's guiding spirit, then Frankfurter was its one-man social networking site. Frankfurter wrote a dozen letters a day and made it his business to know everyone in Washington. He had come to Washington in 1911 to join his former boss, Henry Stimson, in the War Department as Stimson's “junior partner” and legal counsel for the Bureau of Insular Affairs.Footnote 49
Frankfurter connected the House of Truth to Holmes. Holmes had received a letter of introduction to the newly arrived Frankfurter from Harvard law professor John Chipman Gray.Footnote 50 Both Frankfurter and Christie initially lived only a block away from Holmes's house at 1720 Eye Street and spent many afternoons at the Holmes residence.Footnote 51 Through their connection to Denison, Frankfurter and Christie soon moved into the House of Truth and brought Holmes into their orbit.
Holmes did not subscribe to the House's progressive ideas, but he was willing to listen. The name “House of Truth” characterized their relationship to Holmes (and was misattributed to him).Footnote 52 They believed in an objective “truth” through empirical data and scientific management of labor relations and a government run by experts. Holmes believed that truth was “the system of my (intellectual) limitations”Footnote 53 or “the majority vote of that nation that could lick all others.”Footnote 54 Ever since his three Civil War wounds, he adhered to a philosophy of intense skepticism. They admired his intellectual curiosity, charming conversation, and sense of fun. “The House of Truth is happier every time Mephistopheles crosses its threshold,” Denison wrote Holmes.Footnote 55 Mephistopheles, as Holmes often referred to himself,Footnote 56 admired their ambition, intelligence, and optimism about the future.
If flattery is the sincerest form of canonization, then the House of Truth and Holmes were perfectly matched. Denison and Frankfurter were expert flatterers; Holmes, vain and insecure, was susceptible to flattery. In May 1913, Holmes published a small book of his speeches and sent a copy to Denison. “You know what I think of the philosophy which pervades this book and sunny contact one has with you,” Denison wrote. “It has gusto and inspiration, and has given me a good pull on some hard places.”Footnote 57 That summer, as Holmes set off for his final trip to England, Denison sent him a telegram aboard the S.S. Mauretania: “A happy and trifling summer to you and the eager friends across the seas in the gay[e]ties and frivolities-do not entirely forget Truth and its abode and the squatters therein laboring here in its vineyard but repine as of today tunc pro nunc with the same old inspiration.”Footnote 58 The day before, Frankfurter wrote Holmes: “As I see your life-betting countenance, it tugs me hard to utter gratitude ever to mark the point. So—a ‘whacking’ trip to you!”Footnote 59
The House of Truth's connection to Holmes consisted of more than Denison, Frankfurter, and the other original five residents. Like any Washington group house where people lived while working for the government, the House was a revolving door of residents and guests. The first House broke up in June 1914.Footnote 60 Valentine returned to Boston and started an industrial counseling firm; Frankfurter considered joining Valentine's venture but accepted a professorship at Harvard Law School;Footnote 61 Denison was named secretary of the interior for the Philippines; Christie joined the Canadian government; Percy returned to England.
The New Republic entered the breach. Two House of Truth regulars, Herbert Croly and Walter Lippmann, started the magazine in November 1914 and gravitated to Holmes. Holmes, who did not read newspapers, was one of the magazine's first subscribers and most ardent readers. The New Republic became his primary source of news and the House of Truth's primary outlet for its progressive ideas. “Progressivism of all kinds has fared badly,” the magazine's first issue lamented after the November 1914 elections. “The Progressive Party has been reduced to an insignificant remnant.”Footnote 62 The New Republic attempted to revive “non-partisan progressivism” that dominated the discussions at the House of Truth.Footnote 63
The New Republic and impending United States involvement in World War I revitalized the House. Frankfurter, a frequent New Republic contributor, returned to the House in 1917 while working for Secretary of War Newton Baker; Lippmann also joined Baker's staff and moved into the House's top floor in late May 1917 with his new wife Faye Albertson (the house's first and only female resident);Footnote 64 Percy returned to the House and British Embassy as a member of the Balfour Mission.Footnote 65 Several of Holmes's law clerks, then known as secretaries, lived there. Other progressives, New Republic writers such as Francis Hackett and Harold Laski and London Times correspondent Arthur Willert, found their way into the House's and Holmes's domain.
The House of Truth, therefore, consisted of current and former residents (Valentine, Frankfurter, Denison, Lippmann,), New Republic editors and contributors (Croly, Lippmann, Laski, Frankfurter), and regular visitors and dinner guests (Brandeis, Hand, Holmes). Often, the three categories overlapped. Between Frankfurter at Harvard Law School and Croly, Laski, and Lippmann in the New Republic, Holmes gained two cheering sections. The House of Truth united them. Together Frankfurter, Croly, Laski, Lippmann, and other members of the House of Truth began Holmes's canonization.
II. How and Why the House Canonized Holmes
The progressives at the House of Truth canonized Holmes because they were frustrated with the Court's antilabor decisions and lacked a leader after the political fall of Theodore Roosevelt. They backed Roosevelt's ill-fated Bull Moose Party and 1912 presidential campaign. Valentine quit the Taft administration and endorsed Roosevelt.Footnote 66 Frankfurter nearly quit as well, but ultimately decided to continue working for Henry Stimson yet openly support Roosevelt.Footnote 67 In August 1910, Roosevelt attacked the Court by criticizing United States v. E.C. Knight and Lochner v. New York as preventing federal or state regulation of big business.Footnote 68 Two years later on the campaign trail, he advocated the recall of judicial decisions and in rare cases judges. Roosevelt's failed Bull Moose campaign made him increasingly irrelevant on the American political scene. And he parted company with progressives over World War I-era concerns about civil liberties.Footnote 69
Despite the election of Woodrow Wilson in 1912, the House's progressives saw little hope of changing the Court through presidential politics. Wilson's first Supreme Court nominee was archconservative James McReynolds.Footnote 70 Progressives exulted over Wilson's next nominee, Louis Brandeis, and approved of his third nominee, John Hessin Clarke. But Clarke resigned after only five terms because of disillusionment with the Court, substantive disagreement with Brandeis, and to promote the League of Nations.Footnote 71 And in the early 1920s the nominees of Wilson's pro-business Republican successors added more conservatives to the Court. The conservative composition of the Court did not substantially change for nearly 20 years until Franklin Delano Roosevelt's continued reelection.
The House's progressives were hopeful after the Court's 1908 decision in Muller v. Oregon upheld a maximum-hour law for women supported by Brandeis's fact-filled, eponymous brief. In 1916, Frankfurter took over for Brandeis as counsel for the National Consumers' League and argued and won Bunting v. Oregon, a 5–3 decision that upheld a maximum hour law and a companion case, Stetler v. O'Hara, a 4–4 tie that let stand a minimum wage law.Footnote 72 The Court, however, invalidated several labor laws (over Holmes dissents) in Adair v. United States in 1908, Coppage v. Kansas in 1915, Hammer v. Dagenhart in 1919, and Adkins v. Children's Hospital in 1923.
Adkins led Frankfurter, who had argued and lost the case invalidating a D.C. minimum wage law, to lose all hope in the Court. “[T]he possible gain isn't worth the cost of having five men without any reasonable probability that they are qualified for the task, determine the course of social policy for the states and the nation,” he wrote Learned Hand.Footnote 73 Frankfurter never argued another case after Adkins and later recalled that it “struck the death knell not only of this legislation, but of kindred social legislation because it laid down as a constitutional principle that any kind of change by statute has to justify itself, not the other way around.”Footnote 74
Even before Adkins, Frankfurter criticized the antilabor decisions of Chief Justice Taft in anonymous New Republic editorialsFootnote 75 and privately questioned reliance on the Court to solve the nation's problems. After Holmes's opinion narrowly upheld a D.C. rent control law, Frankfurter expressed doubts about the Due Process Clause and concluded: “Not the least of the things that weigh with me is the weakening of the responsibility of our legislators and of our public opinion, or rather, the failure to build up a responsible public opinion. We expect our Courts to do it all.”Footnote 76 Frankfurter's friend and House of Truth visitor Harold Laski was blunter. “I have nothing but dislike for the Supreme Court,” Laski wrote Holmes before Frankfurter's argument in Bunting v. Oregon.Footnote 77 Later that year, Laski wrote: “Your brethren (six of them) have still a long way to go before they understand the meaning of a certain dissent in Adair v. U.S.”Footnote 78 As frustrated as they were with the Court, the House's progressives did not look to the Article V amendment process. Frankfurter and Laski opposed a constitutional amendment to outlaw child labor and overrule Hammer v. Dagenhart.Footnote 79
Instead of trying to amend the Constitution or to seek judicial constitutional change, the House of Truth attacked the Court by canonizing Holmes. The House's progressives enjoyed Holmes's company and admired his intellect, but they also used him for their own political gain. The House of Truth created the image of Holmes as an oracle and viewed his dissents as trump cards that legitimized their political and constitutional vision.
A. Praising His Opinions
A key component of the House's canonization of Holmes was alerting the public to the rightness of his opinions and elevating his dissents into superprecedents. Before his canonization, newspapers had ignored his Lochner dissent in favor of Harlan's.Footnote 80 Scholars were quick to criticize Lochner but slow to latch onto Holmes's dissent.Footnote 81 The press also ignored his other important dissents during the next 10 years, including Adair and Coppage.Footnote 82
The House's publicity campaign targeted several intended audiences—legal academics, law students, and progressives and other political and legal elites—but it began with Holmes himself. The House's progressives indicated their approval of his opinions by extolling them in private correspondence and in his main source of news, the New Republic. “Felix and I have a complaint to make. We think it utterly unfair to assume that you are the only reader of your judgments . . . ,” Laski wrote Holmes. “I am under agreement with Croly not to introduce your phrases more than twice in any article and thrice in any number.”Footnote 83 No one followed the Supreme Court more carefully in those days than Frankfurter. As a young scholar, he repeatedly praised Holmes's opinions, big and small, in national magazinesFootnote 84 and the Harvard Law Review Footnote 85 and alerted Croly, Laski, and Lippmann to the big ones. Holmes appealed to the House of Truth's sensibilities, usually in dissent, on two subjects: 1) upholding federal and state labor laws; and 2) protecting civil liberties.
1. Labor Laws
The House's celebration of Holmes's dissents began with Coppage v. Kansas,Footnote 86 which invalidated the state's ban on yellow dog contracts under a liberty of contract theory.Footnote 87 Holmes did not believe that the “upward and onward” pro-labor legislation could accomplish much.Footnote 88 Legislative majorities, however, rendered his personal views irrelevant. As he wrote in his one-paragraph Coppage dissent: “Whether in the long run it is wise for the workingmen to enact legislation of this sort is not my concern, but I am strongly of the opinion that there is nothing in the Constitution of the United States to prevent it, and that Adair v. United States . . . and Lochner v. New York . . . should be overruled.”Footnote 89 His opposition to the majority's “liberty of contract” decisions aligned Holmes with his young progressive friends.
The House's progressives often signaled their interest in labor cases. Frankfurter thanked Holmes even before reading his Coppage dissent: “I'm stirred up about the case but not at all as an onward-and-upwarder . . . . I am stirred up about the decision as a student of constitutional law and how she is made . . . . I thoroughly dislike the majority decision, so perhaps it won't be lese judiciary to say it on paper. I was happy when I saw you drive another spike into the Adair case. And I like your dissenting company.”Footnote 90 The New Republic quoted Holmes's Coppage dissent and lauded him as “a judge who deals with things, not words, and who realizes that a document which is to rule a great people must in its very nature allow for a wide and growing field for experimentation . . . .”Footnote 91 More than a year later and enrolled as a student at Harvard Law School, Laski wrote: “I have just read Coppage v. Kansas as the New Republic will show you—for the first time. Please let me send a salute of thanks.”Footnote 92
The House of Truth indicated its interest in the federal child labor law. Laski wrote him before the case had been decided: “I hope you wrote on the Child Labour law. I'd like to read you on that.”Footnote 93 In June 1918, Holmes dissented from Hammer v. Dagenhart,Footnote 94 which invalidated the law based on a narrow interpretation of the Commerce Clause.Footnote 95 Frankfurter commented before a copy of Holmes's dissent had arrived: “I am troubled if the Court seeks to reconcile this decision with the McCray case. But I shall doubtless be enlightened when the text of the opinion comes.”Footnote 96 The New Republic opined: “No one, and particularly no lawyer familiar with prior rulings of the Court, can read the dissenting opinion of Mr. Justice Holmes and retain a reasonable doubt that the majority wholly misconceived the issue . . . . In an opinion of calm and luminous eloquence for which generations to come will be grateful, Mr. Justice Holmes makes short shrift of the wholly artificial issue of the majority opinion.”Footnote 97 The House's publicity campaign seemed to be working; newspapers quoted Holmes's dissent.Footnote 98
Holmes's dissent in Truax v. Corrigan,Footnote 99 which invalidated an Arizona law that banned the use of labor injunctions to stop strikes and boycotts, also endeared him to pro-labor progressives. Labor injunctions vexed progressives such as Frankfurter, who later coauthored a book about them.Footnote 100 Holmes, who had published his four-paragraph dissent at Brandeis's behest, made sure that Laski and Frankfurter knew about it.Footnote 101 “I thought your dissent in Truax v. Corrigan quite one of the most perfect little gems you have fired off in months,” Laski replied. “I'm sure it will have its place in the classic literature of the law and it puts a new notch on my stick of pride.”Footnote 102 Frankfurter wrote two unsigned New Republic editorials that excoriated the decision, quoted Holmes's and Brandeis's dissents, and predicted that “the name of this case is destined to become even more classic than the Lochner case.”Footnote 103
Holmes also dissented in Adkins v. Children's Hospital,Footnote 104 which invalidated a D.C. minimum wage law for women as a “freedom of contract” violation under the Fifth Amendment's Due Process Clause.Footnote 105 He consoled Frankfurter that “no one could have brought about a different decision.”Footnote 106 Holmes also sent a copy of his dissent to Laski, who replied: “If I were Frankfurter I should rest content that I had secured that dissent from you . . . . Please go on dissenting.”Footnote 107 The New Republic reprinted the dissent in its entirety.Footnote 108 “I was very sorry to have the Court go that way,” Holmes confided to Nina Chipman Gray. “Of course – some of those who agree with me say nice things – I have had some other pleasant letters . . . .”Footnote 109
After Adkins, Holmes wrote Laski: “I am curious to see what the enthusiasts for liberty of contract will say with regard to liberty of speech under a State law punishing advocating the overthrow of government—by violence.”Footnote 110 Holmes was referring to the oral argument in Gitlow v. New York later that week.
2. Civil Liberties
Nowhere was the House of Truth's canonization of Holmes greater than with regard to civil liberties opinions. Before World War I, neither Holmes nor the House's progressives was interested in free speech issues.Footnote 111 Many scholars have written about Holmes's doctrinal shift on free speech—from affirming Espionage Act convictions in Schenck v. United States, Frohwerk v. United States, and Debs v. United States based on his “clear and present danger” test to his impassioned dissents beginning with Abrams v. United States a few months later. David Rabban argued that the same factors that changed Holmes's perspective changed the perspectives of his progressive friends: “postwar repression of radical speech” and Zechariah Chafee's groundbreaking 1919 Harvard Law Review article, Free Speech in War Time.Footnote 112 Other scholars have suggested that, between the spring and fall of 1919, the House of Truth's progressives may have played a more active role. Edmund Wilson wrote: “It may be that the influence of his new friends the liberals counted for something with Holmes in his opinions after the first World War in cases in which the issue of free speech was involved . . . . the liberals of the post-World War period were now slaking Holmes's thirst for intercourse with men of ideas. They stimulated and entertained him as well as gave him the admiration he craved.”Footnote 113 G. Edward White agreed that “Holmes's First Amendment jurisprudence is best explained by his personal experiences and relationships, which made him receptive to the ideas of progressive intellectuals . . . .”Footnote 114
Even before Holmes decided Schenck, Frohwerk, and Debs, Laski alerted Holmes to progressive interest in these cases. “I see that you have some ‘free speech’ cases to listen to so that the next few weeks won't be without excitement,” Laski wrote.Footnote 115 Holmes was almost apologetic when the three decisions came down, particularly the one involving Socialist Party leader Eugene Debs. He sent the opinions to Laski and wrote: “I greatly regretted having to write them—and (between ourselves) that the Government pressed them to a hearing.”Footnote 116 The initial progressive reaction was tepidly positive. “I read your three opinions with great care; and though I say it with deep regret they are very convincing,” Laski wrote.Footnote 117 “Your analogy of fire in a crowded theatre is, I think excellent, though in the remarks you make in the Schenck case I am not sure that I should have liked the line to be drawn a little tighter about executive discretion.” A New Republic editorial, although not mentioning Holmes by name, agreed that Debs was guilty under the Espionage Act and that it was up to the president to pardon him.Footnote 118 The editorial pleased Holmes.Footnote 119
Criticism of Holmes's Debs opinion, however, soon followed. Ernst Freund, a longtime progressive advocate for free speech, wrote in the New Republic that Holmes “takes the very essentials of the entire problem for granted, and intimates that they are conceded even by the defendant.”Footnote 120 Freund also found Holmes's analogy about shouting fire in a crowded theater unhelpful in the political sphere.Footnote 121 Holmes thought Freund's article was “poor stuff,” drafted a letter to New Republic editor Herbert Croly criticizing the article, but never sent the letter.Footnote 122
During the spring and summer of 1919, the House of Truth played an active role in influencing Holmes's views. Learned Hand, a federal judge close to Frankfurter and the founders of the New Republic and a regular House of Truth visitor, disagreed with Holmes's opinions because they did not adopt Hand's “incitement” test in his opinion in Masses Publishing Co. v. Patten.Footnote 123 Hand and Holmes had debated the issue since a chance meeting on a train in June 1918 and continued their debate through private correspondence after Debs. Holmes wrote that “I am afraid I don't quite get your point”; nor did Holmes understand how the “incitement” test would have led to a different outcome in Debs or Schenck.Footnote 124
The influence of Hand, Laski, and the House's other progressives was undeniable. In March 1919 Hand wrote Holmes on his 72nd birthday, and Holmes replied: “Old fellows need encouragement almost as much as young and that which I have had from you and your generation and friends has put a new spirit into me.”Footnote 125 Laski tried to put a new spirit into Holmes about free speech by arranging a July 1919 meeting between Holmes and Harvard law professor Zechariah Chafee.Footnote 126 Laski gave Holmes a copy of Chafee's law review article, Free Speech in War Time, and informed Chafee that “we must fight on it. I've read it twice, and I'll go to the stake for every word.”Footnote 127 Holmes also read and may have been influenced by Laski's new book, Authority in the Modern State.Footnote 128
The House of Truth swung to Holmes's side after he wrote what was perhaps his most famous dissent in Abrams v. United States.Footnote 129 He made sure that the House's progressives knew about it by mailing copies to Frankfurter and the dean of Harvard Law School, Roscoe Pound.Footnote 130 To Pound, Holmes wrote that he was “very much in the minority with my brethren but I should not despair of finding you on my side.”Footnote 131 Holmes also sent a copy to Walter Lippmann, who informed him that the New Republic was reprinting it “in full.”Footnote 132 Lippmann was so moved by the Abrams dissent that he asked Holmes “if you would send me a copy with something of your own written on it I shall treasure it and teach my children to treasure it.”Footnote 133 The New Republic hailed “the remarkable dissenting opinion of Mr. Justice Holmes” and predicted it “is likely to bulk as important in future discussion of the judicial interpretation of legislation which limits freedom of speech as the same Justice's dissenting opinion in [Lochner] did in relation to judicial interpretation of laws which invoked the police power for the purpose of protecting the health and safety of wage-earners.”Footnote 134
No one was prouder of Holmes's Abrams dissent than Laski. “I want to say in so many words that amongst the many opinions of yours I have read, none seems to me superior either in nobility or outlook, in dignity or phrasing, and in that quality the French call justesse, as this dissent in the Espionage case,” Laski wrote two days after Abrams. “It is a fine and moving document for which I am deeply and happily grateful.”Footnote 135 Laski asked for the original handwritten draft of the opinion, informed Holmes of Croly's New Republic editorial, and concluded: “we all feel that you have restated the case for liberalism as even you have hardly ever done.”Footnote 136 Finally, Laski informed Holmes that Pound “spoke to me with emotion about your dissent. He was certain that it would become a classic in the same sense as your Lochner case.”Footnote 137
Frankfurter joined the Amen chorus about Abrams. “And now I may tell you the gratitude and, may I say it, the pride I have in your dissent . . . you lift the voice of the noble human spirit,” Frankfurter wrote 2 days after it was announced.Footnote 138 A few weeks later, Frankfurter wrote: “I still read and rejoice over your dissents and Pound has stolen from me when he says your paragraphs will live as long as the Aeropagitica[sic].”Footnote 139 Frankfurter alerted Holmes to mostly favorable commentaryFootnote 140 and used it in an unsigned New Republic editorial to defend him against the opinion's critics.Footnote 141
Admiring letters from Hand and Pound gave Holmes “the greatest pleasure.”Footnote 142 “Sympathy and agreement always are pleasant but they are much more than that when they come from one that I have learned to think of as I do of you,” Holmes wrote Hand.Footnote 143 Chafee wrote an admiring Harvard Law Review article about the dissent, an article that nearly cost Chafee his Harvard professorship.Footnote 144 Holmes bragged that his Abrams dissent delighted his progressive admirers and displeased “some of the respectable citizens of Boston . . . . But some of those whose judgment I most respect have said things that warmed my heart.”Footnote 145
After Abrams, the House's progressives continued to praise Holmes's civil liberties dissents. Of his dissent in Milwaukee Social Democratic Publishing Co. v. Burleson,Footnote 146 which allowed the post office to revoke the mailing privileges of the Milwaukee Leader under the Espionage Act, Frankfurter wrote: “What a 'Magisterial' opinion you wrote in the Milwaukee Leader case. You said it all in a few, pungent sentences. The more I studied the case—I discussed it with my seminar in Administrative Law—the less I can comprehend the Seven. I see ‘Great Causes’ are on.”Footnote 147 Frankfurter wrote in an unsigned New Republic editorial: “Mr. Justice Holmes with a few strokes of his pen brought down the house of cards of the majority opinion . . . .”Footnote 148
A few years after Attorney General A. Mitchell Palmer's prosecution of suspected Communists and Socialists, Holmes's Gitlow dissentFootnote 149 pleased his progressive friends. Holmes sent a copy to Frankfurter and wrote: “I gave an expiring kick on the last day (Brandeis was with me) in favor of the right to drool on the part of believers in the proletarian dictatorship—only a page—please read it.”Footnote 150 Holmes also sent a copy and wrote a similar sentiment to Laski, who congratulated him.Footnote 151 The New Republic quoted the Gitlow dissent at length and concluded:
The victories of liberty of speech must be won in the mind before they are won in the courts. In that battlefield of reason we possess new and powerful weapons, the dissenting opinions of Justices Holmes and Brandeis. Out of this long series of legal defeats has come a group of arguments for toleration that may fitly stand beside the Areopagitica [sic] and Mill's Liberty. The majority opinions determined the cases, but these dissenting opinions will determine the minds of the future.Footnote 152
Frankfurter passed along praise from Cardozo who said: “I find that I gain more from Holmes than from any one else, alive or dead. Pick up his opinions haphazard, even the early ones in Massachusetts, one finds them studded with sentences that illuminate the dark places. I find no equal inspiration anywhere.”Footnote 153 Holmes replied: “I am deeply gratified by what Cardozo says. It is the final reward of one's labors when such men as he and you say well done. This is absolutely true. I care more for it than for office or for any other success.”Footnote 154
United States v. Schwimmer Footnote 155 capped Holmes's reputation as a civil libertarian. The New Republic reprinted his dissent in full: “We feel that it sets out, far more ably than any words of ours can do, the attitude which any person who calls himself a liberal ought to take toward this decision.”Footnote 156 Frankfurter, not at a loss for words, wrote:
I had assumed that you exhausted my capacity for being thrilled by magisterial utterance on behalf of sanity in your Abrams opinion. But you have done it again and anew. It was like real, prewar champagne to read your Schwimmer opinion and not because Mrs. Schwimmer matters at all to me. But the invigoration you give to spacious feeling and the confidence you intensify that man's optimism isn't a menace and may be a fillip to life mean, oh! ever so much to us.
It is a glorious piece of writing we so need the antiseptic play of your humor and wisdom.Footnote 157
Frankfurter also enclosed a New York Times editorial praising Holmes and Brandeis as “defenders of minorities, of not only theoretic but applied freedom.”Footnote 158 Holmes replied: “You are generous as you always are and the article gives me more pleasure than articles often do. The things that you have praised show that I haven't lost my interest in the work.”Footnote 159
3. Conspicuous Silence
The House's progressives disagreed with Holmes's decisions in the form of conspicuous silence, silence that he sensed. This was particularly true after he authored the majority opinion in Pennsylvania Coal Company. v. Mahon,Footnote 160 which invalidated a state law that prevented mining beneath improved land.Footnote 161 Holmes wrote Laski: “Frankfurter generally writes to me about any important opinions of mine and he has been silent as to the one I sent you in which Brandeis dissented; probably feeling an unnecessary delicacy about saying that he disagrees.”Footnote 162 After nearly a month of silence, Holmes wrote Frankfurter:
It is delightful to hear from you again. I thought that perhaps you were frozen off by agreement with Brandeis and the New Republic in the case of the underground coal support and not willing to say so. That would be a great mistake (I mean, to feel shy on that account) although I have not seen the slightest reason to doubt the decision, but only to regret that I didn't bring out more clearly the distinction between the rights of the public generally and their rights in respect of being in a particular place where they have no right to be at all except so far as they have paid for it.Footnote 163
A New Republic editorial ghostwritten by former Brandeis clerk and Frankfurter protégé Dean Acheson pitted Holmes's “tolerant scepticism” about using “the police power to accomplish the purposes of condemnation and thereby get something for nothing” against Brandeis's “point of view of the power of the community to protect itself” and concluded that “Brandeis's view seems the superior statesmanship.”Footnote 164 Holmes read the editorial, identified Acheson as the author, and “was not greatly impressed.”Footnote 165
Holmes's most callous opinion, Buck v. Bell,Footnote 166 which upheld Virginia's compulsory sterilization law with the quip that “three generations of imbeciles are enough,” did not prevent the House's progressive from canonizing him.Footnote 167 They did not heap praise on the opinion in the same overwrought way they praised his opinions favoring labor and free speech, but they did not openly disagree with Buck, either. Holmes wrote Frankfurter: “I think my cases this term have been of rather a high average of interest e.g., the Virginia Sterilization Act.”Footnote 168 There is no record of an immediate response.Footnote 169 At the end of the term, Frankfurter wrote: “I venture to say that no annual output has been more vigorous, nor sprightlier, and no batch will live longer than what you gave us this Term.”Footnote 170 He went on to compliment several of Holmes's opinions, but not Buck v. Bell. In the Harvard Law Review, however, Frankfurter tried to put the best spin on Buck as one of several examples of a judge who “enforces statutes based upon economic and political theories which he does not share and of whose efficacy in action he is sceptical.”Footnote 171 Privately, Holmes did not seem so skeptical.Footnote 172 He alerted Laski that Buck was coming and revealed clashes with other justices about his harsh rhetoric.Footnote 173 Laski mentioned Buck in passing but never praised it the way he did other Holmes opinions.Footnote 174
By praising his labor and free speech dissents, the House of Truth successfully raised Holmes's profile among people who read Supreme Court opinions: law professors and law students. And by including much of this praise in the New Republic, the House reached their fellow progressives as well as political elites who did not read Supreme Court opinions but who cared about the Court as an institution. Recognition at law schools and among political elites let Holmes know that he would not be forgotten, that his dissents mattered, even if there was almost no hope that the Court would agree with them in labor and free speech cases. It is possible (though unknowable) that the House's progressives influenced the outcomes of his decisions or the frequency of his dissents in these areas. Either way, he knew he had an audience, and he played and responded to it.
B. Praising Their Work
The sinister thought has risen in my mind whether you young fellows were ironically trying how much the old man could stand in the way of flattering things, but of course I rejected it. In former days my friends amused themselves with getting a rise out of me (on things in general) but it was too easy. As to favorable comments I can stand a good lot—it is a privilege of age–and a fact of human nature–but I hardly need say that I believe in and reciprocate the affection that I get from men like you and Frankfurter too sincerely to have any real irony of fate.
Holmes to Laski, November 1916Footnote 175The House of Truth's praise and flattery of Holmes was not a one-way street; Holmes facilitated his own canonization by reading and praising the work of his progressive friends. He read voraciously and obsessively, recording every book he read in a small, black book.Footnote 176 Beginning in the mid-1910s, he made it a point to read his friends' books and articles. They sought his praise and let him know that they valued his opinion. Holmes did not agree with many of their underlying ideas. He described himself as a “bettabilitarian,” betting only “on the behavior of the universe in its contact with us” and remaining skeptical about ideas that could improve society.Footnote 177 But by reading progressive books and articles, not to mention the New Republic, Holmes showed that he was at least receptive to their ideas and an appropriate vessel for their adulation.
Holmes regularly read the House of Truth's work in the pages of the New Republic. Croly sent Holmes the magazine's first issue, and Holmes wrote a three-page critique in which Croly concurred.Footnote 178 Despite his criticisms, Holmes became so enamored of the New Republic that it became his primary sources of news. It was not only that he liked the writers, but also that he admired the writing. “[Y]ou young fellows in the New Republic show that we can write as well in this country as anywhere and fill me with courage even though you humble me personally,” Holmes wrote fellow Anglophile Frankfurter.Footnote 179 Holmes recommended the magazine to his oldest friendsFootnote 180 and regularly praised six New Republic writers and House of Truth visitors: Croly, Frankfurter, Francis Hackett, Laski, Lippmann, and Philip Littell.
Holmes especially took to the magazine's two biggest stars, Croly and Lippmann. Approximately 10–15 years older than his contemporaries, Croly was already a hero to the House's progressives such as Frankfurter, by writing their mission statement with his book, The Promise of American Life.Footnote 181 Both he and Lippmann became House of Truth regulars (and the latter a resident). In November 1914, Croly sent Holmes a copy of Croly's new book, Progressive Democracy.Footnote 182 Holmes also read Lippmann's new book, Drift and Mastery.Footnote 183 Neither book persuaded him of anything other than the greatness of the writers. “Alas, my doubts attach to many of the shibboleths of the young—(your gifted lot of chaps),” Holmes wrote Frankfurter. “I don't believe some of the things deeply implied in the writings of Croly and Lippmann, much as I delight in them and I almost need your encouragement not to think that I am an old hulk on the sands.”Footnote 184 To his oldest friend John Chipman Gray, Holmes praised Lippmann and Croly:
Do you know Walter Lippmann's books—A Preface to Politics and (just out) Drift & Mastery? He is young—and one thinks at times proceeding on an inadequately founded faith—but Lord, how good a writer—what discernment of impalpables and enumeration of infinitesimals—What delightful cheek and what sound criticism for the meditation of the elders—a tip top jaw about the Sherman Act alongside of apparent satisfaction with what would be a silly sentence of Pound about the Courts, if it were meant as a summary, which I don't suppose. Superstitious as I think about capital and admirable discourses about labor. He is one of the lads that gives me courage for the future. He and Croly are on the New Republic about to appear for which I hope you subscribe.Footnote 185
To Lippmann, Holmes drafted a letter about Drift and Mastery “with some criticism and much praise, but it was unsatisfactory and so burned.”Footnote 186 Instead, Holmes quoted from his letter to Gray.Footnote 187 Three days later, Holmes finished reading Lippmann's book and wrote him “while I have found no further ground for disagreement I have found much more to admire. It would have been a loss for this world if you had [given in] to your reaction after it was done.”Footnote 188 As thanks for the book and sealing the bond of their new friendship, Holmes instructed Croly to give Lippmann a bound copy of Holmes's speeches “which may disclose in an accidental way here and there the readiness of my mind to accept most of your views.”Footnote 189
Lippmann regularly visited Holmes at 1720 Eye Street. In contrast to the hot, cigar-smelling halls of Congress, Lippmann wrote in the New Republic, there is at least one place in Washington where things have an altogether different quality, and no one I think comes away from it unmoved. It is the house of Mr. Justice Holmes. When you enter, it is as if you had come into the living stream of high romance. You meet the gay solider who can talk of Falstaff and eternity in one breath, and tease the universe with a quip.”Footnote 190
The laconic Lippmann engaged Holmes in completely different types of conversations than the frenetic Frankfurter; Holmes did most of the talking.Footnote 191 Holmes wrote: “If you found Croly solemn Lippmann has great gifts of silence. I like to talk with both of them, however. Their wisdom in the paper sometimes depresses me – perhaps it is also points of management in which they may be right.”Footnote 192 Holmes's forte was law and philosophy (with literature on the side); Lippmann's was politics. They praised each other's work. Holmes delighted in Lippmann's visits.Footnote 193 In spite of their different generational perspectives about war, Holmes admired Lippmann's next book, The Stakes of Diplomacy. Footnote 194 Lippmann sought Holmes's critique of the Atlantic Monthly article that became his most famous book, Public Opinion.Footnote 195 Holmes never stopped reading Lippmann's books.Footnote 196 “His writing is fly paper to me,” Holmes wrote Laski, “if I touch it I am stuck till I finish it. He writes so well—and sees so much that it is difficult to put into words . . . .”Footnote 197 Lippmann, in turn, idolized Holmes: “As for the greatest man I have personally ever known apart from Einstein himself, who I have met only once for a short time, I should perhaps say Mr. Justice Holmes . . . .”Footnote 198
Holmes befriended and read another New Republic contributor, Harold Laski. In July 1916, Frankfurter introduced Laski to Holmes during a visit to the justice's summer home at Beverly Farms.Footnote 199 A socialist, instructor, and tutor in Harvard's schools of history and government, and first-year student at Harvard Law School, the 23-year-old Laski stunned the 75-year-old Holmes with the breadth of his learning and precocity.Footnote 200 Laski became a regular House of Truth visitor and one of Holmes's most frequent correspondents. Holmes and Laski shared a deep skepticism, and both men often told tall tales.Footnote 201 Holmes wrote to Laski, “One thing that gave me much pleasure in your talk was that you had not an easy optimism and didn't believe that universal bliss would ensue if the world would only get a move on and obey when the New Republic says Hocus-Pocus-Presto-Chango, and God knows I have as deep a respect as anyone for the ability of Croly and Lippmann.”Footnote 202
Holmes frequently praised Laski's New Republic articles.Footnote 203 Laski responded in kind, quoting a British friend who compared Holmes to Alexander Hamilton and described Holmes as “the Huxley of America.”Footnote 204 Laski's book Studies in the Problem of Sovereignty began by quoting one of Holmes's speeches, and the preface credited “the lesson to be learned from the constitutional opinions with which Mr. Justice Holmes has enriched this generation.”Footnote 205 Holmes read the first chapter “with very great pleasure and of course substantial agreement” and was “pleased and flattered” by the references.Footnote 206 Laski dedicated his next book, Authority in the Modern State, as follows: “To Mr. Justice Holmes and Felix Frankfurter: The Two Youngest of My Friends.”Footnote 207 For private consumption, Laski wrote a biblical parody, The Book of Oliver: “And the young men loved him greatly and he returned their love. But he guarded the secret places of his mind saying ‘I will not let them put one over one me.’”Footnote 208
Of all the House's progressives, Holmes was the closest to Frankfurter, the person most responsible for Holmes's canonization and most desirous of Holmes's praise.Footnote 209 Initially, Frankfurter was much less prolific than the others. Holmes praised his small efforts: an American Bar Association article about the state of law schools (“Tip top, dear boy, tip top.”Footnote 210); Frankfurter's eulogy after Robert Valentine died of a heart attack in 1916 (“beautiful and moving. Like each new thing that you have done since I have known you, it brings you a little closer into my mind and heart. Even your more optimistic outlook and prophecy for human destinies than I can venture upon makes you dearer to me. I think such a speech as that makes the world better.”Footnote 211).
As Frankfurter became more established at Harvard and worked on bigger projects, his need for Holmes's approval seemed to grow. After reading Frankfurter's preface to his supervised study, Criminal Justice in Cleveland, Holmes wrote: “I congratulate you with all my heart. It seems to me a model. It expresses the scientific spirit with perfection and puts it with restrained and admirable force.”Footnote 212 Frankfurter replied: “I cannot possibly convey to you what a word of professional commendation from you means to me. In all literalness, to have you touch me with your sword gives me more to go on than anything else that my work can possibly evoke . . . .”Footnote 213 Holmes, even though he refused to intervene in their case, repeatedly praised Frankfurter's Atlantic Monthly article/book arguing that Sacco and Vanzetti had not received a fair trial.Footnote 214 Frankfurter dedicated his next book, The Business of the Supreme Court, to “Mr. Justice Holmes, who, after twenty-five terms, continues to contribute his genius to the work of a great court . . . .Footnote 215 The clearest indication of Holmes's effect on Frankfurter came after Holmes dubbed Frankfurter's book, The Labor Injunction,Footnote 216 “first-class—really A-1.”Footnote 217 Frankfurter replied: “For you to call my work ‘really A 1’ is to be knighted by the King! I'd rather have your ‘well done’ than any one else's in this wide world. You give me reward and spur.”Footnote 218
In his later years when Holmes became too old to read and after his wife Fanny had died, his current and former secretaries (law clerks) read books to him day and night.Footnote 219 He put Frankfurter and other progressives on his reading list. He wrote Frankfurter: “My secretary has just finished reading aloud to me your Yale lectures—The Public and Its Government. I think them admirable and wish that every young man in the country might read them. Again and again they sting me with pleasure, not to speak of the almost awe I feel for your familiarity with so much as to which I feel myself ignorant.”Footnote 220 As a friend and mentor to these young men, he did not let his skepticism about their progressive ideas prevent him from marveling at their abilities. The House's progressives canonized Holmes knowing that he valued their work.
C. Soldier's Faith
The House's progressives canonized Holmes partly because his Civil War service reinforced his heroic image. He loved to tell war stories and reminded people in person and in letters when a particular day marked the anniversary of when he had been wounded at Ball's Bluff, Antietam, or Fredericksburg.Footnote 221 In his 1884 Memorial Day Address, he wrote: “Through our great good fortune, in our youth our hearts were touched with fire.”Footnote 222 Philip Littell wrote an entire 1915 “Books and Things” column about the Memorial Day Address in the New Republic.Footnote 223 Holmes's 1895 address, The Soldier's Faith, another account of his Civil War experiences, made the biggest impact.Footnote 224The Soldier's Faith impressed Theodore Roosevelt, who seven years later nominated him to the Supreme Court.Footnote 225The Soldier's Faith, as much as any of his opinions, resonated with young progressives, 50 years after the end of America's bloodiest conflict.
The beginning of World War I made Holmes's Civil War service even more relevant in the eyes of the House of Truth. Loring Christie sought his counsel while serving the Canadian government in Ottawa during the war: “I have faith somehow that a world brought to its knees may learn some of the things that you learned in your dark days of half a century ago. For myself it seems I am not to be allowed to find the Soldier's Faith; I must content myself with hoping I may count a little here.”Footnote 226 Christie was torn between staying at home and fighting with the British on the front lines.Footnote 227 A similar Christie letter to Frankfurter “deeply moved” Holmes, who counseled Christie “that it takes romantic faith to do unromantic things.”Footnote 228
Robert Valentine's widow, Sophia, found The Soldier's Faith comforting after her husband died in 1916 of a heart attack in Delmonico's in New York surrounded by his former housemates. Frankfurter wrote Holmes, “The other night, at Mrs. Valentine's request, I read to her from the Memorial Day address and from ‘The Soldier's Faith.’ It comforted her much, and gave her the strength and understanding and shared faith. ‘The man who wrote that,’ she said, ‘knew Robert before their hands met.’”Footnote 229
After the United States entered World War I, Frankfurter pondered how best to serve his country. He sought Holmes's advice, and Holmes replied:
Your discourse as to your own attitude in case of war seems to me to put it rightly and brings peace to my heart. But I hope, for the sake of the Law School and the Law, that it will not be necessary to make any serious break in your career. I agree, on the other hand, that now I should allow less than I did in my own case 50 years ago to the consideration of the special faculties that one may attribute to oneself as a ground for not taking the chances of war. And I only rejoice that if you have to serve, it is not likely to be in the field.Footnote 230
Frankfurter became a major in the reserve corps of the Judge Advocate General's office and later took a leave of absence from Harvard, lived in the House of Truth, and served as a special assistant to Secretary of War Newton Baker.Footnote 231
D. Milestones
Much of Holmes's canonization had nothing to do with his judicial opinions or status as a Civil War hero. The House of Truth canonized him by recognizing his birthdays and judicial milestones. Privately, they praised him in letters on his March 8 birthday. Publicly, they continued to build his judicial reputation among law professors, law students, and political elites in the pages of the Harvard Law Review, other scholarly journals, and New Republic by celebrating his 75th birthday and his 20th year on the Court (and 40th year on the bench) and by collecting his essays and speeches into a book. Recognizing his birthdays and judicial milestones enabled the House's progressives to reach other target audiences who did not read Supreme Court opinions: the mainstream media and average Americans who by the mid-1920s and early 1930s bought into the idea of Holmes as a wise old national hero.
1. 75th Birthday
Years later, Frankfurter described Holmes's 75th birthday celebration as a “national event.”Footnote 232 This is a gross exaggeration, but it began the nonjudicial aspects of the House of Truth's canonization. Walter Lippmann used the occasion to write his eloquent column about his visits to 1720 Eye Street and captured why the House's progressives regarded Holmes as their hero:
At seventy-five, a justice of the Supreme Court and a scholar known wherever the common law is studied, his heart is with the laughing sad men, who have mixed bitterness and beauty, and staked their souls on a gamble with life. He fought in the Civil War and was wounded; he has looked at death lightly, and known what it is to live dangerously. A sage with the bearing of a cavalier: his presence is an incitement to high risks for the sake of the enterprise and its memories. He wears wisdom like a gorgeous plume, and likes to stick the sanctities between the ribs.
He has lost nothing that young men have, and he has gained what a fine palate can take from the world. If it is true that one generation after another has depended upon its young to equip it with gaiety and enthusiasm, it is no less true that each generation of the young depends upon those who have lived to illustrate what can be done with experience. They need to know that not all life withers in bad air. That is why young men feel themselves very close to Justice Holmes. He never fails to tell them what they want to hear, or to show them what they would wish men to be.Footnote 233
Beginning in 1914, Frankfurter was teaching at Harvard Law School. Although he nominally taught classes titled Public Utilities, Administrative Law, or Federal Jurisdiction, students received a healthy dose of Holmes.Footnote 234 “Frankfurter's always giving you Holmes,” a student complained to Laski. “They don't make much of Holmes in Minnesota.”Footnote 235
But Frankfurter and other esteemed law professors made much of Holmes. Frankfurter had persuaded the editors of the Harvard Law Review to dedicate their April 1916 issue to the justice in honor of his birthday.Footnote 236 John Henry Wigmore, a Holmes correspondent and one of the nation's foremost legal scholars, wrote, “As I look over the long list of judges of American Supreme Courts, and even over the much shorter one of those who achieved eminence or possessed originality (and these two are not always the same), Justice Holmes seems to me the only one who has framed for himself a system of legal ideas and general truths of life, and composed his opinions in harmony with the system already framed.”Footnote 237
Frankfurter, writing an article about Holmes's constitutional opinions, put Holmes in the same category as John Marshall:
In their impact and sweep and fertile freshness, the opinions have been a superbly harmonious vehicle for the views which they embody. It all seems so easy, – brilliant birds pulled from the magician's sleeve. It is the delusive ease of great effort and great art. He has told us that in deciding cases “one has to try to strike the jugular,” and his aim is sure. He has attained it, as only superlative work, no matter how great the genius, can be attained.Footnote 238
Philosophers Morris Cohen and Eugen Ehrlich, and Roscoe Pound wrote articles using Holmes to explore larger themes.Footnote 239 The April 1916 issue of the Harvard Law Review was Frankfurter's proto-Festschrift to Holmes, a declaration that Holmes was more than just one of nine justices; he was a legal philosopher and judicial figure of historic proportions.
Holmes knew whom to thank for the Harvard Law Review articles. “Very few things in my life have given me so much pleasure,” he wrote Frankfurter. “I well know that I owe it to your constant kindness that I receive such a crowning reward, and I thank you from my heart.”Footnote 240 Holmes's gratitude extended to Pound and Wigmore.Footnote 241 Wigmore also dedicated an issue of the Illinois Law Review to Holmes and reprinted excerpts from his speeches.Footnote 242 Holmes delighted in Lippmann's editorial “expressing the kindness of the young men for me,” alerted or sent copies of the Harvard Law Review to his friends and correspondents, and declared his past 75 years “a success”Footnote 243 and that “the long struggle had not been in vain.”Footnote 244
2. Collected Legal Papers
If Lippmann's editorial and Frankfurter's 1916 Festschrift began the House of Truth's public canonization of Holmes, then Laski's efforts to publish Holmes's speeches and essays brought the justice national and international acclaim among scholars, judges, lawyers, and the lay public. In 1918, Laski had persuaded Holmes to write a short article attacking natural law for the Harvard Law Review.Footnote 245 In a larger project, Laski intended to republish the Holmes canon in book form. In January 1920, Laski wrote Holmes that the manuscript had been completed and sent to the printer. “It's been a great joy to me to re-read your things . . .,” Laski wrote. “The greatest of them is the ‘Path of Law,’ though there are touches in the 1913 speech which made me feel mean and humble. It is great to have a man who takes his profession so greatly.”Footnote 246 Holmes returned the compliment to Laski. “I owe him thanks for gathering these little fragments of my fleece that I have left upon the hedges of life . . . ,” Holmes wrote in the book's June 15, 1920 preface. “A later generation has carried on the work that I began nearly half a century ago, and it is a great pleasure to any old warrior who cannot expect to bear arms much longer, that the brilliant young soldiers still give him a place in their councils of war.”Footnote 247 The preface was a clear nod to the House of Truth. By late November 1920, Holmes began sending advance copies of the book, oddly titled Collected Legal Papers, to his friends at the House of Truth including Frankfurter, Croly, and Lippmann.Footnote 248
The House of Truth crowd celebrated Holmes's Collected Legal Papers. Croly and Lippmann, in consultation with Frankfurter, determined that Viscount Haldane should review Collected Legal Papers for the New Republic.Footnote 249 Haldane admired Holmes, and the approval of the British would make Holmes proud.Footnote 250 They also knew that it would be some time before Haldane's review came out, but that it would generate a lot of publicity. “[I]t is very likely that Walter Lippmann and I may want to [review it], too,” Croly wrote Holmes.Footnote 251 Holmes was thrilled. “Of course, the old boy likes the appreciation, particularly from the youngsters,” Frankfurter wrote philosopher Morris Cohen.Footnote 252
A frequent Holmes correspondent and Frankfurter's former law school roommate, Cohen described Collected Legal Papers in his New Republic review as “an extraordinary book of thoroughly matured human wisdom.”Footnote 253 Cohen admired Holmes's “urbane or civilized scepticism” and “complete freedom from all the current cant phrases about liberty and equality, democracy and progress.”Footnote 254 Holmes wrote Cohen indicating “happiness” with the review that “makes life easier. An odd phrase for a man who will be 80 in March. It seems as if at that date one might tie up the past into a neat package, insure it with Cohen as valuable, and take an irresponsible rest. But as soon as a corner is turned the road stretches away again and ambition to go farther returns . . . .”Footnote 255 Philip Littell, in the magazine's “Books and Things” column, quoted four sentences from Collected Legal Papers as proof that they represented “‘the finest modern English prose.’”Footnote 256 Holmes appreciated Littell's “little side puff.”Footnote 257
Throughout 1921, Collected Legal Papers generated scholarly reappraisals of Holmes's career in law reviews, political science journals, and several magazines.Footnote 258 Law professors including Yale's Walter Wheeler Cook and Columbia's Thomas Reed Powell and Judge Learned Hand praised the book.Footnote 259 They recognized that Holmes's speeches and writings placed him a cut above his brethren and made him a seminal legal thinker. They saw greatness in Holmes just as the progressives at the House of the Truth did. Frankfurter maintained his steady stream of flattery by discussing reviews with Holmes and sending him copies. “But I have been much surprised and a little worried by the outpouring,” Holmes wrote Frankfurter. “Pride goeth before a fall and whenever anything sets me up, I expect very shortly to get taken down.”Footnote 260 Frankfurter replied, “When I read Luina [Mrs. Frankfurter] your expression of concern over the “outpouring” evoked by the essays, says she, in her innocence, ‘Why doesn't he realize what he is and what he means to men.’ Whereupon, I tried to explain to her how thoroughgoing your scepticism and how deep your humility.”Footnote 261 Holmes was a skeptic, but not humble, and he was incredibly vain. The reception of Collected Legal Papers fed his ego and his vanity and cemented his reputation among legal elites.
Praise for Collected Legal Papers carried into March 8, 1921, Holmes's 80th birthday. Frankfurter arranged a letter from the Harvard faculty, “tipped off” Brandeis, orchestrated Haldane's review, and “etc., etc., etc.”Footnote 262 Pound praised Collected Legal Papers in another Harvard Law Review volume dedicated to Holmes and declared that “the author of ‘The Path of the Law,’ and of the dissenting opinion in Lochner v. New York, may await the assured verdict of time.”Footnote 263 Haldane wrote in his long-awaited New Republic review that “[e]very nation forms an intellectual type which is peculiarly its own” and considered Holmes “a striking example of it.”Footnote 264 Both reviews, Holmes wrote, “show that I have achieved what I longed to do.”Footnote 265 To another friend, he wrote: “For to one to whom intellectual ambition is the strongest the only reward that counts for much is when those whom he deems competent say that he has touched the superlative. And I have had more than I ever dared to hope . . . .”Footnote 266 To yet another he wrote, “the people whom I should have chosen have said the things I should have wished but never dared expect. So (again in a sense) I call the job finished. I can't better it, and while I shall keep on as before shall hold before myself as a further ideal to see if I can't live to 90 and shine as a reminiscent and survivor . . . .”Footnote 267
His father's fame, however, still loomed in the lay public's mind. The New York Times review, titled A ‘Legal’ Autocrat, claimed that Holmes's modest preface “might have been written by his universally beloved father. One can pay his distinguished son no greater compliment than that . . . scattered throughout the pages of these ‘Papers’—most of which are concerned with strictly legal subjects—there are sentences and thoughts which are strongly reminiscent of the genial ‘Autocrat of the Breakfast Table’ and quite worthy of his happiest moods.”Footnote 268 Interestingly, the author of Collected Legal Papers is listed as Oliver Wendell Holmes; he dropped the “Jr.” after his father's death.Footnote 269 Indeed, as his father receded into the nineteenth century, the House of Truth's canonization of Holmes helped him eclipse his father's fame and enter the public's consciousness.
In Holmes's ninth decade, the House's publicity campaign began to reach the American people—not as a defender of labor and free speech but as a national treasure. In December 1922, Frankfurter celebrated Holmes's 20th anniversary on the Supreme Court and 40th anniversary on the bench with an unsigned New Republic editorial proclaiming “the judicial work of Mr. Justice Holmes is the symbol at once of the promise and fulfillment of the American judiciary” and concluding that “[b]ehind the sceptic is invincible faith.”Footnote 270 “I do not know whether to recognize your friendly hand in the actual writing or not—that you are in some way responsible for it I hardly can doubt,” Holmes wrote Frankfurter. “Such a thing cannot but make one happy and feel as if the long day's task had not been in vain.”Footnote 271 Frankfurter then wrote a 1923 Harvard Law Review article titled, Twenty Years of Mr. Justice Holmes' Constitutional Opinions, and included an appendix listing more than 500 of his opinions.Footnote 272 Frankfurter's Harvard Law Review article caught the attention of Time magazineFootnote 273 and the New Republic, which declared: “The article deserves to be read not only by lawyers, who would presumably be technically interested in its contents, but by laymen to whom the traditional American system of law and government is a cherished inheritance.”Footnote 274
In 1926, Frankfurter wrote another New Republic editorial honoring Holmes's 85th birthday: “The tender, wise, beautiful being who is Mr. Justice Holmes in himself redeems the whole legal profession.”Footnote 275 The editorial left Holmes “at the moment dumb.”Footnote 276 Lippmann also wrote an editorial for his new employer, the reformist New York World: “There is nothing we can say which will add to the fame of Mr. Justice Holmes wherever the law is studied. In every high court and in every law school throughout the world he is known and studied and revered as one of the few greatest minds who have dealt with the law in the course of last century.”Footnote 277 Frankfurter marked Holmes's 25th year on the Supreme Court with another lengthy Harvard Law Review article (and eventual book), Mr. Justice Holmes and the Constitution,Footnote 278 which inspired Philip Littell's New Republic article praising Holmes's opinions as “English prose at its clearest and concisest.”Footnote 279 Lippmann wrote another New York World editorial in 1928 recognizing that Holmes had passed Roger Taney as the Court's oldest justice.Footnote 280 Harvard Law School commissioned an official portrait of Holmes by Charles Hopkinson and unveiled it on March 22, 1930 with remarks by Learned Hand. Footnote 281 That same year, Harold Laski declared in Harper's on Holmes's 89th birthday:
Since John Marshall revealed to the American people what their new constitution might imply, none has so clearly molded its texture as Mr. Justice Holmes. He stands out in its history not merely as one of the two or three most significant figures in the record, but, also, as one of the supreme expositors of principle in the annals of the Common Law. To read his opinions is to capture once again something of the excitement a lawyer feels when he first reads a judgment of Mansfield or Jessel or Bowen. Here is law in the grand style, law as a part of the living fabric of life, law as literature as well as technic, law as philosophy not less than science. When, twenty-five years ago, John Morley visited America, he came back to affirm that in Mr. Justice Holmes America possessed the greatest judge of the English-speaking world.Footnote 282
Holmes wrote that Laski's article “moved me deeply.”Footnote 283 A year later, Laski wrote a tribute to Holmes in the Yale Law Journal.Footnote 284 Frankfurter reviewed a collection of Holmes's dissenting opinions (“The fruit of his wisdom has become part of the common stock of civilization”)Footnote 285 and wrote a brief Harvard Law Review article about Holmes's early writings.Footnote 286 To celebrate Holmes's 90th birthday, Frankfurter organized a Festschrift/book published in 1931 consisting mostly of former New Republic and Harvard Law Review articles by Frankfurter, Lippmann, Littell, Cardozo, and philosopher John Dewey.Footnote 287 Frankfurter rejected former Attorney General George W. Wickersham's contention that “without exception the writers of all the essays in this volume represent a school of thought to which, in general, the majority of the Supreme Court has been consistently opposed.”Footnote 288
By the mid-1920s, the House's canonization of Holmes had spread from law schools and scholarly publications to the mainstream media and national political leaders. On June 3, 1924, President Calvin Coolidge awarded him the Roosevelt Memorial Association's gold medal for service. “For five minutes, Mr. President,” Holmes replied, “you make the dream of a life seem true . . . .”Footnote 289 Holmes's 85th birthday made the national newsreels and landed him on the cover of Time magazine, which labeled him “as venerable as his father.”Footnote 290 In 1929, President Herbert Hoover, a former House of Truth visitor, sent Holmes flowers.Footnote 291 “One profession that is more noble today than that of soldier is Dissenting Justice of the Supreme Court,” E.B. White wrote that same year in the New Yorker's “Talk of the Town” section.Footnote 292 White was referring to Holmes and quoted from his Schwimmer dissent.Footnote 293
A New Republic editorial declared Holmes's 90th birthday “an event which belongs not to him but to the nation. It has been his supreme achievement to make the qualities of his mind the symbol of what we value most highly in the national life.”Footnote 294 President Hoover sent him a publicly released letter.Footnote 295 That night, Holmes briefly but memorably delivered a national radio address. The radio program, organized by editors from the Harvard, Yale, and Columbia law reviews, began with American Bar Association President Charles Boston, followed by Yale Law School Dean Charles Clark and Chief Justice Charles Evans Hughes.Footnote 296 Holmes, however, stole the show with his brief concluding remarks. “There is time to hear the kind voice of friends and to say to one's self: ‘The work is done,’” Holmes said while speaking into a live microphone from his second-floor study on 1720 Eye Street. “But just as one says that, the answer comes: ‘The race is over, but the work never is done while the power to work remains.’”Footnote 297 He concluded by quoting a Latin poem: “‘Death plucks my ears and says, ‘Live—I am coming.’”Footnote 298 After hearing his remarks, the national media embraced Holmes as an American hero.Footnote 299 The front page New York Times story described him as a “soldier, lawyer, leader of public opinion, associate justice . . .” and the “series of tributes such as have rarely been paid to any man in his own lifetime.”Footnote 300
The final act of House of Truth-inspired canonization during Holmes's lifetime was a surprise visit from President Franklin Roosevelt on Holmes's 92nd birthday and Roosevelt's fourth day in office.Footnote 301 Frankfurter, a close Roosevelt adviser, arranged the meeting, a grand act of symbolism between Holmes, the longtime hero of progressives, and Roosevelt , the first president in nearly 20 years to give them hope for constitutional change. Roosevelt broke protocol by visiting the home of a private citizen. Joined by Eleanor, his son Jimmy, and Frankfurter at 1720 Eye Street, the president sat with Holmes for 40 minutes in his second-floor study.Footnote 302 The following year, Roosevelt, unwilling to brave the New England weather to see Holmes at Beverly Farms, wrote the retired justice a handwritten birthday note “wishing all good things for the most splendid and the wisest of all American Liberals.”Footnote 303 Roosevelt paid his respects at Holmes's funeral at Arlington Cemetery, standing next to a military aide beside Holmes's casket, and issued a public statement that the “Nation has lost one of its first citizens.”Footnote 304 The New York Times headline declared: “HOLMES IS BURIED AS NATIONAL HERO.”Footnote 305
During Holmes's lifetime, the House of Truth transformed “Mephistopheles” into a progressive icon and created an undoubtedly skewed portrait of the justice to suit their political ends. Holmes was much more of a skeptic and positivist than a civil libertarian. The differences between the real Holmes and the canonized Holmes were vast, differences that revealed fundamental flaws in Holmes's majoritarian judicial philosophy and also about the progressives themselves.
The House's progressives created the myth of Holmes as the champion of free speech that ignored everything before his Abrams dissent. Before Abrams, Holmes limited First Amendment protection of free speech to freedom from prior restraint.Footnote 306 His opinions in Schenck, Frohwerk, and especially Debs affirmed harsh punishments of political speech. Most of the House's progressives, however, had little interest in free speech before post-World War I crackdowns on civil liberties. Even the great civil libertarian Brandeis had joined Schenck, Frohwerk, and Debs and wrote none of his canonical First Amendment opinions until after Holmes's Abrams dissent.Footnote 307
Holmes's record on race was bad, but not all bad.Footnote 308 He reminded his young friends that he had been “an abolitionist and shuddered at a Negro Minstrel Show, as belittling a suffering race and I am glad I was and did.”Footnote 309 His three Civil War wounds, however, supplanted his abolitionism with intense skepticism—particularly about constitutional notions of equality. On the Court, he joined or wrote several opinions against black litigants, including several that perpetuated Jim Crow.Footnote 310 He nearly dissented from Buchanan v. Warley,Footnote 311 which invalidated a Louisville statute intended to promote residential segregation, because it was a “manufactured case” that did not concern the “constitutional rights of blacks” (because the plaintiff was a white homeowner).Footnote 312 In Giles v. Harris,Footnote 313 he deferred to majority rule and rejected a challenge to the Alabama Constitution disenfranchising black voters—considered by scholars to be one of the worst decisions about race in the Court's history.Footnote 314 But in Nixon v. Herndon,Footnote 315 he wrote a unanimous opinion invaliding the Texas Democratic Party's all-white primary, an opinion he delivered with “much joy.”Footnote 316
Holmes was more willing to protect racial and religious minorities from mob-dominated criminal trials—writing the majority opinion about the trials of black murder defendants after race riots in Phillips County, Arkansas, and dissenting from the Court's affirmation of Leo Frank's capital murder conviction.Footnote 317 Of the many progressives outraged over the unfair murder trial of anarchists Sacco and Vanzetti, Holmes wrote: “I cannot but ask myself why this is so much greater interest in red than black. A thousand-fold worse cases of negroes come up from time to time, but the world does not worry over them.”Footnote 318
Holmes's relative lack of interest in protecting the equal rights of former slaves would not have troubled many of the House's progressives. One of their biggest blind spots was race.Footnote 319 Racial justice was not a salient issue for them. Brandeis has been often criticized for his voting record in race cases, as he joined many of the same decisions endorsing Jim Crow as Holmes did.Footnote 320
The House's progressives canonized Holmes to attack a Court perceived to be hostile to labor and free speech. They successfully promoted Holmes to audiences including legal academics, law students, political elites, and eventually the American public. They praised his opinions that furthered their causes and overlooked Pennsylvania Coal v. Mahon, Buck v. Bell, his poor record on race, and his pre-Abrams decisions on free speech. The canonized version of Holmes reflected only the aspects of Holmes that the House's progressives wanted people to see.
E. Brandeis
Holmes's canonization is more than a product of the House of Truth's praising certain opinions and celebrating his birthdays and milestones; the young progressives had some help from one of their own inside the Court: Louis Brandeis. Before he joined the Court, Brandeis had been a regular visitor at the House of Truth.Footnote 321 After his nomination, he regularly contributed ideas to the House of Truth and New Republic through his chief lieutenant, Frankfurter. Dubbed “the people's lawyer” because of his work on behalf of progressive causes, Brandeis contributed to the House's canonization of Holmes and to Holmes's efforts to please his progressive friends.
Wilson's nomination of Brandeis was like a member of the House of Truth joining Holmes on the Supreme Court. The House's progressives rallied to Brandeis's cause after Boston's business establishment tried to block his confirmation.Footnote 322 Holmes had known Brandeis since the latter had arrived in Boston during the late nineteenth century to start a law firm with a former associate in Holmes's law firm, Samuel Warren. About Brandeis's nomination, Holmes remained publicly mum. Privately, he expressed some unease about the unseemliness of the confirmation fight.Footnote 323 Once Brandeis joined the Court, however, all Holmes's doubts disappeared.Footnote 324
Even with Brandeis on the Court, the outcomes of the cases important to the House of Truth were the same; Brandeis usually joined Holmes in dissent in labor and post-Abrams free speech cases. Together they formed a formidable team and lasting friendship. Chief Justice Taft, an opponent of Brandeis's nomination, believed that “[Holmes] is so completely under the control of brother Brandeis that it gives to Brandeis two votes instead of one.”Footnote 325 Holmes and Brandeis did not always agree. But when they did, Brandeis brought out the most progressive side of Holmes. Brandeis often spurred Holmes to write important dissents, such as in Hammer v. Dagenhart Footnote 326 and possibly in free speech cases.Footnote 327 Holmes acknowledged Brandeis's influence to Nina Chipman Gray: “Sometimes my brother B. seems to me to see deeper than some of the others – and we often agree . . . . In two or three cases he has perhaps turned the scale on the question whether I should write—but in each of those I was and am more than glad that I did. Whether I have influenced him I don't know. But I believe I have stated fully one side of the account.”Footnote 328 Brandeis and Holmes often arrived at the same outcome in different ways. Brandeis famously liked facts and pioneered sociologically based jurisprudence; Holmes read philosophy and favored epigrams.Footnote 329 Brandeis set a high bar and reinvigorated Holmes on the Court. Holmes treasured Brandeis's friendship and companionship.Footnote 330
One striking aspect of Holmes's canonization is that it occurred largely because he surrounded himself with Jews (and mostly secular German Jews).Footnote 331 Brandeis, Frankfurter, Laski, Lippmann, and Morris Cohen contributed to his canonization. Holmes also corresponded with two British Jews, Laski and Lewis Einstein. Holmes's fellow Boston Brahmins, a term coined by his father, found it odd that Holmes had become philo-Semitic. This is particularly true of Holmes's female correspondents. “I am tickled at your ‘If only you stay thoroughly Anglo-Saxon,’” he wrote Nina Chipman Gray. “I take the innuendo to be that I am under the influence of the Hebs. I am comfortably confident that I am under no influence except that of thoughts and insights.”Footnote 332 Holmes was not anti-Semitic like many of his old friends,Footnote 333 but he was very conscious of his new friends' Jewishness. He also trafficked in what today we would regard as stereotypes, believing his young Jewish friends to be more optimistic about the future than his dour New Englanders.Footnote 334 Whether his generalizations were true because of their religious backgrounds, because of geographical/generational differences, or not true at all, Holmes's Jewish friends spearheaded his canonization.
An enduring question is why the House's progressives chose to canonize Holmes before Brandeis. Or, put another way, why was Holmes number 1 in the House's hierarchy and Brandeis number 1-A? Brandeis, given his reputation as the “people's lawyer” and reformer willing to take on unpopular causes, seemed like the more natural candidate. He had mediated many labor disputes as “counsel to the situation” and believed in unionization and the rights of labor far more than Holmes did. Brandeis was also more of a political strategist than Holmes, having helped Woodrow Wilson with his antitrust platform in 1912 and participated in Zionist causes.
Several reasons favored Holmes. First, Holmes had been on the Court longer than Brandeis and when the House of Truth had begun. Second, Holmes's opinions contained epigrams that the House's progressives could reprint in law review articles and New Republic editorials. Third, Holmes possessed more charm and charisma than the cold and austere Brandeis; Holmes captivated the House's young progressives through witty conversation and cult of personality. Fourth, Brandeis was too similar to many of the House's Jewish progressives: outsiders striving to assimilate and become insiders. Brandeis, who described Frankfurter as “half brother, half son,”Footnote 335 looked like them, talked like them, and aroused the same virulent anti-Semitism and charges of socialism or communism. Holmes, in contrast, was the perfect symbol: a Civil War hero, son of a famous Boston physician–poet, product of the Harvard white Anglo-Saxon Protestant establishment, regal in speech and bearing, and convivial in personality. No one would challenge his patriotism or accuse him of writing an opinion that aided or abetted the enemy. The House's progressives could attack the Court's antilabor and post-Abrams free speech decisions by canonizing Holmes and his dissents among law professors, law students, and political elites, without any fear of damaging his reputation.
III. The Willing Participant
Holmes participated in his own canonization because, far from damaging his reputation, he knew that the House's progressives could make it. He thirsted for recognition and understood that his association with the House of Truth was a way to achieve it. G. Edward White explored Holmes's “life plan to confront central driving forces within him and to harness them to achieve fame and power.”Footnote 336 Holmes admitted that he “confine[d] my aspirations to being the greatest legal thinker in the world”Footnote 337 and prided himself on his “jobbist” philosophy: the most important thing in the world was doing his job well and doing it better than anyone else.Footnote 338 Holmes's young male secretaries absorbed from his “jobbist” philosophy “that even to the ablest man distinguished success does not come easily and that if one's name is to be remembered gratefully by later generations it will be because one has stooped to drudgery in order to conquer the heights.”Footnote 339 Holmes's jobbist philosophy, however, nearly failed him. Doing his job well was not enough to achieve the prestige and immortality that he craved.
Holmes facilitated his own canonization in subtle ways: he sent the House's progressives copies of opinions that he thought would appeal to them; he read and praised their work; and he sanctioned the publication of Collected Legal Papers, recognized his young friends in the book's acknowledgements, and sent copies of the book to them and their colleagues.
Holmes's most important contribution to his canonization was the way he wrote his opinions with an eye and ear to his progressive friends. The dynamic between Holmes and the House of Truth exemplifies a judge writing for a discrete audience. Lawrence Baum has argued that there is “value of taking into account judges' interest in the esteem of audiences that are important to them” and “that a perspective based on judges' interest in the approval of their audiences can enhance our understanding of judicial behavior . . . .”Footnote 340 Holmes's relationship with the House of Truth reflects many of the subgroups Baum identifies as potential judicial audiences: Court colleagues (Brandeis), legal academics (Frankfurter), judges on other courts (Hand), and the media (Croly, Lippmann, the New Republic).Footnote 341
Even before he had discovered the House's progressives, Holmes wrote opinions for the intellectual elite. His 1906 term secretary Augustin Derby recalled: “His opinions were closely reasoned and condensed, requiring careful study for understanding. ‘I am writing for the expert,’ he said to me. The style was unique, and the choice of words considered with greatest care.”Footnote 342
Holmes's use of obscure language indicated that he wrote for an elite audience. He once instructed his 1913 term secretary, George Harrison, to look up a word:
Harrison looked it up in the dictionary and found a secondary meaning which made it possible to construe the sentence in such a way as to dispose of the contention.
Harrison: “All right, Mr. Justice, but I still think that there isn't one man in a thousand who would understand the sentence that way.”
Holmes: “I write for that man.”Footnote 343
Alger Hiss, Holmes's secretary during the 1929 Term, recalled the justice laboring over an opinion: “Finally with an air of triumph he returned to his desk, completed the last few lines of the opinion and said proudly that ‘afflatus’ was just the right word. He was filled with pleasure that he had a word which could cause people to sit up and take notice. As an unnecessary precaution I was asked to ‘look out’ the word in his Century after its use had been irrevocably decided upon.”Footnote 344 As soon as the opinion came out, Frankfurter asked Hiss about “afflatus.” Hiss replied: “Your shrewdness in hitting upon the word ‘afflatus’ in the justice's opinion in the Danovitz case delighted O.W.H. immensely. As you guessed it was a word of art indeed. The judge would have liked to substitute ‘frenzy’ but after thought decided he could get immeasurable satisfaction out of ‘afflatus.’ The choosing of that word was Holmes at one of his most charming moments.”Footnote 345
After Holmes's 70th birthday, he had found a specific audience in the House of Truth's progressives, a group of experts who appreciated his esoteric language, colorful epigrams, and intellectual shorthand. He was now writing for an intelligentsia who appreciated his opinions most, who quoted them, wrote articles about them in the Harvard Law Review and New Republic, and made him more famous than his father. Writing for his discrete audience at the House of Truth helped Holmes achieve what he most wanted (and what Posner says judges maximize): prestige.Footnote 346 Holmes was not motivated by money or mass popularity but by the desire for a lasting reputation among his elite peers. Or, as he put it, “the only reward that counts for much is when those whom he deems competent say that he has touched the superlative.”Footnote 347 The recognition that he sought was not only among legal elites but also elites in American society. He was deeply moved when he received the Roosevelt Medal in 1925, stole the show during the national radio program celebrating his ninetieth birthday, and enjoyed Roosevelt's visit to his home on his 92nd birthday. The House of Truth's progressives provided Holmes with both types of elite recognition and even the mass publicity that he claimed not to need but still wanted. Holmes had found an intellectual cheering section that spread the gospel of his greatness.
Holmes wrote most often for his audience at the House of Truth in dissent. His dissents resonated with them, consoled them in defeat, and gave them ammunition to build his reputation and to attack the Court's doctrinal intransigence in labor and free speech cases. Fortunately for Holmes, he enjoyed writing dissents more than majority opinions. “One of the advantages of a dissent,” he wrote Laski, “is that one can say what one thinks without having to blunt the edges and cut off the corners to suit someone else.”Footnote 348 Upon becoming chief justice, Taft agreed: “He has more interest in, and gives more attention to his dissents than he does to his opinions he writes for the Court, which are very short and not very helpful.”Footnote 349 Holmes's best-known opinions are his dissents not only because the House of Truth publicized them but also because his language and his epigrams could be as colorful as he wanted them to be.
Holmes knew which dissents mattered to Croly, Frankfurter, Hand, Laski, Lippmann, the Harvard Law Review, and the New Republic. They let him know which cases they were interested in by writing to him in advance of oral argument or before they had read certain opinions. He sent them copies of those opinions. He basked in their praise. And, in the area of free speech, his interest grew when theirs did. It is possible that the House of Truth's interest in labor and free speech cases may have affected his votes in those cases. It is even more likely that the House's interest in those subjects may have caused Holmes to write a full-fledged dissent rather than join one of Brandeis's or (as was common then) simply note his dissent at the bottom of the majority opinion. As much as the House's progressives played on his ego and vanity, he played on their enthusiasm and mutual frustration with the Court. He knew they would outlive him and carry on his legacy.
Fortunately for Holmes, he had several factors in favor of his canonization. First, he was fortunate to inherit an extraordinary set of genes that enabled him to live for nearly 25 years past his 70th birthday. His longevity gave his canonization a long incubation period. It allowed him to tackle many legal issues (economic regulation, labor relations, privacy, and free speech) with modern resonance and brought him to the attention of the young progressives who created and perpetuated the Holmes legend.
If, like his best friend John Chipman Gray, he had died in 1915 of a heart attack, Holmes would have fallen short of his goal of escaping his father's shadow and achieving his own lasting fame. He would be known today for The Common Law, The Path of Law, and his Lochner dissent—great achievements all—but he would not be known as one of twentieth century America's greatest jurists. He would largely be considered a nineteenth-century jurist on par with the first Justice Harlan.
Second, Holmes was savvy enough to recognize that he needed the progressives at the House of Truth as much they needed him. He cultivated and wrote for the approval of this discrete audience because he needed their approval to achieve what he had worked so hard and so long for: the elusive mystique and immortality that causes him to be the object of continued fascination by legal scholars and historians and to be quoted in high-profile Supreme Court opinions.
Conclusion
Holmes's canonization was born not only of mutual admiration, but also of mutual instrumentalism. The House of Truth canonized him to attack the Court's antilabor decisions, to contest the ascendancy of Lochner and liberty of contract theory, and to further their goals of an expert-run administrative and regulatory state. They canonized him because, as in all political and legal movements, the House's progressives needed a constitutional symbol of what the Supreme Court could be, and a voice to legitimize the constitutionality of their ideas.
After Adkins, the House's progressives lost faith in the Court. The beginning of Holmes's canonization exemplified an elitist attempt at popular constitutionalism.Footnote 350 As the judicial branch provided little hope of constitutional change, the House's progressives began to canonize Holmes by praising his dissents and Collected Legal Papers and recognizing his judicial milestones in the New Republic and Harvard Law Review. Their canonization of Holmes reached multiple audiences: law professors, law students, political elites, and, by the mid-1920s and early 1930s, even the American people who neither read nor cared about his judicial opinions.
Holmes needed the House's progressives because, for 70 years, his jobbist theory of out-working and out-performing his peers had failed to grant him the recognition that he felt he deserved. By furthering his own canonization and writing dissents that pleased his discrete audience, he could escape his father's shadow and attain his own elusive fame. Holmes needed the House's next generation of legal and political thinkers to carry on his legacy. Both sides got what they wanted out of the crucial beginnings of his canonization.
This alternative narrative explanation for the beginning of Holmes's canonization suggests that short-term political and legal goals motivate the canonization process. Canonization is often the product of constitutional self-interest and political instrumentalism. During the 1910s, the progressives at the House of Truth needed to canonize Holmes to attack the Court's antilabor decisions, to kill off Lochner and liberty of contract theory, and to legitimize the constitutionality of their regulatory goals. But if canonization is initiated only as an act of political instrumentalism, how does it affect the canonized judge or opinion's long-term place in the constitutional canon? Today's Court may not be citing Holmes's dissents or Brown for the same reasons as the people who began the canonization process.
Canonization reinforces the Holmesian idea that constitutional law thrives on symbols. “We live by symbols,” he said of John Marshall, “and what shall be symbolized by any image of the sight depends upon the mind who sees it.”Footnote 351Lochner, Holmes's dissents, and Brown are important constitutional symbols because of their positions in the canon or anticanon. How these symbols are manipulated plays a major role in the future of constitutional interpretation. The impetus behind the creation of these symbols illustrates why the beginning of Holmes's canonization matters and why the House of Truth's instrumental role in initiating his canonization is historically and constitutionally significant. The House's progressives needed ammunition to attack the Court's antilabor decisions; Holmes sought immortality; constitutional law gained an important and enduring symbol.
