Ask the author: Justice Oliver Wendell Holmes and “the loneliness of original work”

“[A] man of high ambitions … must face the loneliness of original work.”
— Oliver Wendell Holmes, Brown University Commencement Address (1897)

The following is a series of questions posed by Ronald Collins to Catharine Pierce Wells in connection with her new book, “Oliver Wendell Holmes: A Willing Servant to an Unknown God” (Cambridge University Press, 2020).

Catharine Pierce Wells is a professor of law and a Law School Fund research scholar at Boston College Law School, where she teaches and writes in various areas of legal theory, including pragmatic legal theory, feminist jurisprudence and civil rights theory. She received her law degree from Harvard Law School and also earned an M.A. and Ph.D. in philosophy from the University of California, Berkeley.

Wells’ articles on Justice Oliver Wendell Holmes have appeared, among other places, in the Journal of Supreme Court History. Her new book was published in the Cambridge Historical Studies in American Law and Society series, edited by Christopher Tomlins.

Welcome, Catharine, and thank you for taking the time to participate in this question-and-answer exchange for our readers. And congratulations on the publication of your book.

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“Holmes is on the way of becoming one of the great representative figures of his nation, a type of man which has so far been rare in American history.”
— Max Rheinstein (1943)

“[A]re we in danger of accepting him too uncritically?”
— Max Lerner (1943)

Question: These two quotes reveal something of the spectrum of views on Holmes – Olympian on the one hand, dark and dangerous on the other. Before we turn to your book, what is your general sense of this range of opinions?

Wells: As you say, Holmes is a controversial figure. What is surprising, of course, is not so much the range of opinions but the passion that animates them. While there are some moderate voices, assessments of Holmes and his influence have tended towards the extreme. They run the gamut from “he is the greatest jurist who ever lived” to “he is a fascist and a dangerous influence on American law.” It is hard to imagine John Marshall or William Howard Taft exciting such passionate responses.

One common explanation for the intensity is that Holmes became the symbol of generational conflict among law professors. One generation mythologized Holmes as its spokesman and leader, while a younger generation rebelled by seeking to desecrate his image. But this explanation does not account for the fact that Holmes was controversial even in his own time.

I think the true explanation is somewhat simpler. Holmes was an astute observer. He saw all sides of human life — its heroism and villainy, its successes and failures, and its joy and despair. In addition, he made no excuse for doing what he thought was right, and he did not mince words when saying what he honestly thought. To put it in Thoreau’s words, Holmes was a man who marched to the beat of his own drum. Some people think of this as a sign of courage; others as an unwarranted smugness. The former group tends to see in Holmes a captivating idealist; the latter group may see nothing but a cranky old man. The truth, of course, is somewhere in between.

 

Question: In an essay published last year in the book “The Pragmatism and Prejudice of Oliver Wendell Holmes,” you wrote: “No expert on American law has been subject to as many differing interpretations as [Holmes].” In your own book, you concede that “it is hard to have a fresh outlook” on Holmes. Given that, how does your interpretation of the man and his legacy differ from what has already been offered up in the 6,275 biographical pages printed in books about Holmes?

Wells: What compelled me to write about Holmes was the feeling that, despite all that had been written, no one had gotten it quite right. I first read Holmes after completing a dissertation on Charles Peirce, the founder of American pragmatism.

Pragmatism is a complex philosophy. The men who formulated it were intelligent and well educated (even if self-educated) in philosophy. As philosophers, they had a somewhat contradictory vision. On the one hand, they sought to provide an analysis and justification of the scientific method. On the other, they were committed to recognizing the limits of scientific thought. Disagreeing with Kant, they believed that there was no objective foundation for science. Instead, they saw the value of science in its effectiveness as a guide for human action.

The essential insight of the pragmatists – whether Peirce, William James or John Dewey – was their recognition of the value of the subjective aspects of human experience. Thus, they did not view feelings and speculation as degraded junior partners to rational science. Rather, they understood them as an essential ingredient in the construction of meaning. As lawyers looked at Holmes, they did not see this aspect of his philosophy. Even Professor Thomas Grey, who recognized Holmes as a pragmatist, seemed to ignore it. It was this omission that challenged me to write one more book about Holmes. It was written in the belief that one had to take Holmes’ mystical statements seriously, and to treat them as an integral part of his pragmatism.

 

Question: The subtitle of your book is something of a riddle – “A Willing Servant to an Unknown God.” Can you unravel that a bit for us?

Wells: Yes, it is a bit of a riddle, but one that is central to Holmes’ life. Remember he was descended from Puritans who thought that the meaning of life was to serve God. But he was also an agnostic who lived in a city where zealous Calvinism had morphed into a more liberal Unitarianism. He did not believe in the biblical God, preferring instead to think broadly in terms of an unknowable power that transcended the physical world. Thus, he found himself inhabiting a paradox. On the one hand, he believed in serving God, and on the other, he had no sure knowledge of God or what it meant to serve God.

Some members of his generation resolved this conflict by embracing a faith that defied skepticism. Others simply shrugged, finding it impossible to serve a God they did not understand. But Holmes followed Ralph Waldo Emerson on a harder, middle road. He dedicated himself to duty, but at the same time recognized that the nature of his duty could only be gleamed by momentary insights. The best he could do was to remain open to his experience and allow himself to be guided by the love he felt for honor and country.

 

Question: As you see it, how does Holmes’ life experience (especially his Civil War experience) connect to his philosophy and jurisprudence?

Wells: The standard answer to this question is that three years of blood and gore made him cynical and detached. This is the central narrative for those who think that Holmes lacked the idealism necessary for a legal legend. But I disagree. One can see a similar detachment in others of his generation who did not go to war. Think, for example, of his friend Henry Adams or his cousin, the historian John Torrey Morse.

As I began to reconstruct his experience in the war, what stood out to me was the constant back and forth between the horrors of the front and the comfort of home. He was wounded three times and each time spent a significant period in Boston. We can see in his letters that he came to realize the unbridgeable gap between the war as it was understood on the battlefield and the war as it was understood by the civilians in Boston. He also understood that the soldiers of the South were as idealistic and committed to justice (their vision of justice) as he was. These were formative experiences. Through them, he learned in the most dramatic fashion that perception depends on context.

What we see, sense and understand is always dependent upon perspective – the way in which our past constructs and illuminates present experience. This emphasis on perspective was an important element of Holmes’ skepticism. On the one hand, he authentically held certain beliefs. On the other, he understood the substantial possibility that some or all of these beliefs were wrong.

 

Question: You write that “we need to reject the simple image of Holmes as a [legal] realist.” Please explain why you think that common portrayal is inaccurate.

Wells: When we approach Holmes through the lens of contemporary legal theory, it is natural to think that he must be either a formalist (someone who believes that legal decision-making is the result of applying logic to precedent) or a realist (someone who thinks that judges should decide on the basis of sound social policy). But this dichotomy overlooks a substantial middle ground.

Holmes was not a realist; he did not believe that judges should impose their own views of social policy. Nor was he a formalist, as is obvious from his criticism of Christopher Columbus Langdell.

Holmes understood something important about the common law. He saw that it was not the logic of precedent that constrained legal decision-making. Instead, he viewed the common law as a tradition with its own customs, norms and vocabulary. Judges were participants in the tradition and had to abide by its rules – both stated and unstated.

Sometimes, but rarely, there would be a right answer to a legal question because there was a stated rule that dictated the result. Mostly, however, the constraints were less formal. There might be a right answer or a range of right answers because the law dictated the form in which questions could be raised, the strategies that might be deployed in analyzing legal problems, and the vocabulary to be used in their resolution. This way of looking at the common law is neither realist nor formalist as those terms are understood today.

 

Question: You note your interest in Holmes’ “role as a judge” and your consequent focus on his method of deciding cases. One of the opinions that you dwell on is Holmes’ 1896 dissent in Vegelahn v. Guntner. Why is that case important, and what does Holmes’ dissent tell us about his judicial method?

Wells: I focused on the Vegelahn opinion because it illustrates the type of constraint I just described. It is a clear example of Holmes’ use of a common law method in deciding cases of first impression. In this case, there is no stated rule that determines the outcome. Nevertheless, Holmes’ approach in this case is a good example of how adherence to the common law – broadly understood – commits him to a specific outcome.

The method is dialectical in the sense that it cycles between form and substance. His first move is to frame the issue in traditional tort terms. Then he suggests that privileges in tort cases are always a matter of substantive policy. The next step is to compare the case to other cases that seem to raise the same issue of substantive policy. He then applies the vocabulary and doctrines embodied in this latter group of cases to the case at hand. He reformulates the issue through this lens. Once this is done, he is able to decide the case based upon the fundamental principle of the common law – like cases must be decided alike.

 

Question: All the chapter headings in the first part of your book come from lines in Holmes’ 1884 Memorial Day speech. In that speech, Holmes spoke words that would reappear in President John F. Kennedy’s 1961 inaugural address. Said Holmes: “[I]t is now the moment when by common consent we pause to become conscious of our national life and to rejoice in it, to recall what our country has done for each of us, and to ask ourselves what we can do for the country in return.”

Why is that 1884 speech so significant to your interpretive project?

Wells: I used the speech in the Prologue because it so clearly expresses Holmes’ basic attitude toward life. In it, we see the heart of his creed:

[Memorial Day] embodies … our belief that to act with enthusiasm and faith is the condition of acting greatly. To fight a war, you must believe something and want something with all your might. (This you must) do to carry anything else to an end worth reaching. More than that, you must be willing to commit yourself to a course, perhaps a long and hard one, without being able to foresee exactly where you will come out. All that is required of you is that you should go somewhither as hard as ever you can. The rest belongs to fate. One may fall – at the beginning of the charge or at the top of the earthworks; but in no other way can we reach the rewards of victory.

This summarizes not only his attitude toward fighting a war, but also his approach to studying law. I used phrases from the speech as chapter headings as part of an overall intention to tell Holmes’ story through his own words.

 

Question: You write about Holmes: “How was it … that the young man who had gone to war to fight for abolition had come to the Court forty years later seemingly uninterested in the project of restoring basic freedoms for those who had been emancipated?” Might you say a few words about this apparent conflict?

Wells: Such a hard question. Perhaps the simplest answer is that the conflict is based upon his differing roles as soldier and judge, but this could use some elaboration.

Holmes favored abolition, but that was not the main reason he enlisted in the Union Army. He explained his reason in the Memorial Day speech:

I think the feeling that a man ought to take part in the war unless some conscientious scruple or strong practical reason made it impossible was right – in the South as in the North. I think that, as life is action and passion, it is required of a man that he should share the passion and action of his time at peril of being judged not to have lived.

Note that his reason for enlisting was not necessarily a hope that his action would help end slavery. To some extent, it reflected his desire to participate in something larger than himself. This was a touchstone throughout his life — full participation was a continuous goal. Thus, he threw himself into learning the law with total and intense commitment.

The key to understanding Holmes is to understand how he thought about his place in the world. He often said that we should not set ourselves up as little gods outside the universe. By this he meant that individuals should not imagine that they are masters of the universe, that they can “improve” the world by imposing their own ideals. As a result, he did not believe in mandates for reform. He was a judge. That was his job, and doing one’s particular job was Holmes’ highest ideal. By the time Holmes got to the Supreme Court, he knew what this meant. His role required him to participate in the grand sweep of the common law, and this meant conformity to a very specific set of ideals. Common law judges, he believed, should resolve disputes by upsetting surrounding customs and usages at little as possible. He may have disapproved of slavery. He may have thought that Southern efforts to restrict voting rights were unfair. But it was not his personal beliefs that were at issue. As a judge he believed, rightly or wrongly, that he had no power or authority to overturn well-established social arrangements.

In our time, young people are idealistic; they often become lawyers because they want to change the world. But their desire would have puzzled Holmes. It was just not the way he thought about things. Possibly our attitude is better, but thinking about Holmes has convinced me of at least one thing – that arrogance and hubris are attached to a commitment to social change.

 

Question: In his 1960 Oliver Wendell Holmes Devise lecture, Francis Biddle (who once served as a secretary, the former term for a law clerk, to Holmes) took aim at the growing ranks of critics of his former boss. That criticism began in in earnest in 1941. By 1945 it was so strong that the American Bar Journal published an article by Ben Palmer (a prolific Minneapolis corporate lawyer) titled “Hobbes, Holmes and Hitler.” A more judicious, but nonetheless highly critical, portrait of Holmes was painted by Professor Albert Alschuler in his book “Law Without Values: The Life, Work, and Legacy of Justice Holmes” (2002). And that criticism continues today on various fronts. In your opinion, is any of the harsh criticism warranted?

Wells: In 2002, I wrote a review of Professor Alschuler’s book; it was titled “Reinventing Holmes: The Hidden, Inner, Life of a Cynical, Ambitious, Detached Old Judge without Values.” As the title suggests, I do not think that Alschuler’s negative assessment of Holmes is fair. His book is one of a number of works that distort Holmes’ record by cherry-picking quotes and discussing his worst opinions. Nevertheless, I do concede that there is a dark side to Holmes, especially in his later years.

The question is whether this dark side constitutes a real defect in character. What exactly were his “crimes?” In 50 years on the bench he wrote a few bad opinions – opinions that are “bad” in the sense that, 100 years later, we strongly disapprove of them. I wonder if Alschuler or any of the others could do better. I am pretty sure I could not.

 

Question: Ralph Waldo Emerson (philosopher, poet, essayist, lecturer and leader of a transcendentalist movement) receives a good dollop of attention in your treatment of Holmes. Tell us how you think he influenced the justice.

Wells: Holmes first read Emerson in his early teens. In his later years, he would say that it was Emerson who had stood the test of time. Emerson’s influence was important because it shaped the way in which Holmes thought about the world. We can see this clearly if we contrast Emerson’s views with those of the British empiricists. The empiricists thought of human beings as observers. They equated experience with the passive reception of sense data. Emerson, on the other hand, thought of the natural world as a teacher. It interacted with human spirits, teaching them not just about the characteristics of a physical world but also about the meaning of a greater, transcendent world. Experience, he thought, was a relationship between himself and a larger world of which he was a part. This difference affected Holmes’ understanding of law in many ways. The British empiricists, for example, thought that experience taught only the “facts.” For Emerson and Holmes, it taught not only facts but also values. We should learn from our experience not just how to do things but also what is worth doing. This is an especially important insight for one who is studying law. Note, for example, how this larger conception of experience enlightens Holmes’ famous phrase – “The life of the law has not been logic: it has been experience.”

 

Question: You devote time and attention to a two-volume book Holmes read in 1897, written by Fridtjof Nansen, the Norwegian explorer, scientist, diplomat and Nobel Peace Prize laureate, and titled “Farthest North: Being the Record of a Voyage of Exploration of the Ship FRAM, 1893-96 and of Fifteenth Months’ Sleigh Journey.”

Can you give us a nutshell account of why this wild-eyed explorer caught Holmes’ – and your — attention? 

Wells: It is obvious why Holmes liked it. At the turn of the century, a trip to the North Pole was the greatest possible adventure, and Holmes admired action and passion. Nansen’s trip was filled with insurmountable obstacles and seemingly certain death. I think Holmes saw this narrative as the ultimate expression of a life well lived. He also clearly identified with Nansen’s experience, thinking not only of his trials during the Civil War, but also of the rather grueling trip he took through the Alps with Leslie Stephen.

In his 1897 Brown University commencement speech, Holmes used Nansen’s book as a metaphor for his own life. In the speech, he compared the perils of Nansen’s journey with his own lonely struggle to understand the common law and the universe that it illuminated. Like Nansen, he saw his journey as a series of difficult challenges that required heroic efforts.

 

Question: The second half of your book makes ample use of the Brown commencement speech. All the chapter headings in Part Two come from lines in that speech. Apart from Max Lerner’s inclusion of it in his 1943 book on Holmes, that speech has received relatively little attention from Holmes scholars. What made you decide to focus on it?

Wells: When I first read the speech, I was struck by the fact that it so accurately described Holmes’ intellectual life. It is easy to overlook the fact that, from 1865 to 1880, Holmes spent virtually all his spare time studying law. Essentially, he was glued to a seat in the Social Law Library in Boston reading dusty legal texts and wondering what they said about the human condition. This was lonely work, and like Nansen’s trip to the pole, it was not accompanied by assurance of success. I wanted to emphasize this aspect of Holmes’ life, because it was so formative for him. If you ignore this period of his life, it is easy to suppose that Holmes was just one more well-bred, well-connected young man who was in the right place at the right time to make his mark on the world.

 

Question: On a chilly Friday in March of 1935, there was a service for Holmes at All Souls Unitarian Church, located at 16th and Harvard Streets NW in Washington, D.C. You fold Unitarianism into your biographical/jurisprudential account of Holmes. Please tell us more.

Wells: Someone in Washington once asked Fanny Holmes about their religious affiliation. She said that they were Unitarians, and added: “In Boston, one has to be something and Unitarian is the least you can be.” The Holmes were not joiners. They did not actively involve themselves in religious or social organizations. Nevertheless, as Fanny’s statement indicated, they were comfortable with the agnosticism of the more liberal wing of the Unitarian Church.

 

Question: For a variety of political reasons, it is hard to imagine that any modern president would nominate a jurist in the jurisprudential mold of Holmes to the Supreme Court. The “public,” you observe, “has come to understand ‘good’ judging in terms of political ideology. This is a tragedy. … [But] Holmes reminds us there are alternatives” – namely, “acting impartially.” Absent that, we would confront a troubling prospect: “With ten more years of ideological struggle, how much legitimacy will the Court retain?”

If a Holmesian jurist were to be nominated and confirmed, would such a justice have any real allies on the Roberts court? Or would they be no more than an anomaly, without even a Justice Louis Brandeis to join in thoughtful dissent? Put another way: Are the days of a Holmesian jurist long past, both as nominee and justice?

Wells: Holmes placed law above politics without exception. As you know, he dissented in Northern Securities v. United States (1904) soon after he was appointed by Theodore Roosevelt. This was no small matter, as can be seen in a March 24, 1904 press account in The Citizen Republican:

The president is angry at Justice Holmes … (for his) dissenting opinion in the Northern Securities case, and Mr. Roosevelt is not going to any great trouble to conceal his displeasure. The trouble with Justice Holmes was that he reached his conclusion with his own interpretation of the law, instead of deciding the question as Mr. Roosevelt wanted him to.

And Northern Securities was just the tip of the iceberg. Over and over again, he made decisions that he knew would be unpopular among those in power.

Of course, the situation is different now. The country is polarized and there is no one opinion that pleases the powers that be. But the basic lesson is the same – putting law over politics would strengthen the Supreme Court’s ability to fulfill its constitutional function. This notion has support among several of the justices, including Chief Justice John Roberts.

Unfortunately, there are countervailing factors. Bickering over abortion and gun rights has created a sense that law is irrelevant to constitutional decision-making. In addition, the court continues to make openly partisan decisions, inserting itself into the very heart of the electoral process by explicitly benefitting one party over the other. Bush v. Gore (2000) is an example, but there are others dealing with voting rights, campaign finance, etc. In each of these cases, the Supreme Court could have emphasized its neutrality by deferring to state courts or to the Congress. To make matters worse, the president unequivocally promised that he would make appointments that had been individually approved by one of his constituent groups. Obviously, these factors are very harmful to the credibility of the court.

 

Question: Thomas Jefferson wrote: “We hold these truths to be self-evident.” Holmes countered: “No concrete proposition is self-evident, no matter how ready we may be to accept it.” Do you think those two statements can be reconciled? If not, what does that tell us about Holmes’ grand view of things?

Wells: Holmes and the other pragmatists adopted Alexander Bain’s definition of belief as something upon which one was prepared to act. Looked at in this way, we understand that even Jefferson did not believe his “self-evident” proposition. Had Jefferson acted on it, he would have freed his slaves, but infamously he did not.

It is easy to assemble a number of positive qualities and say that we should all aspire to them. Perhaps, for example, it is self-evident that we should all eat healthy meals. But this statement does not tell us what a healthy meal is, nor does it do much to change unhealthy eating habits. It is not, in Holmes’ terms, a “concrete” proposition. Aspirations of this type have an obvious power to command acceptance, but acceptance does not always result in a commitment to act. When the Supreme Court decided Dred Scott v. Sandford (1856), for example, it simply overruled one of Jefferson’s self-evident propositions.

Then again, there are times when what is aspirational becomes real. One example of this was a suit by Quock Walker, an enslaved African American who sued for his freedom. The suit was based on the Massachusetts state constitution, which had been adopted a year earlier. He relied on a 1780 provision, similar to the one in the Declaration of Independence, which provided: “All men are born free and equal, and have certain natural, essential, and unalienable rights; among which may be reckoned the right of enjoying and defending their lives and liberties; that of acquiring, possessing, and protecting property; in fine, that of seeking and obtaining their safety and happiness.”

Based on that provision and good lawyering, a jury found in Walker’s favor, ending the custom of slavery in Massachusetts. In Commonwealth v. Jennison  (1783), the state’s highest court agreed. For the Massachusetts court, the idea that all men are created equal was a concrete proposition that had consequences for legal decision-making. At the same time, we must recognize that as the proposition became more concrete, it also became more controversial and less self-evident.

Ron, I thank you for this opportunity to discuss my book on Holmes.