The Many Contradictions of Oliver Wendell Holmes

By 1926, Holmes was on the cover of Time, hailed as the leading judge of the age. What happened in the meantime to make Holmes into a legend may be summarized in two words: Felix Frankfurter. As a young Progressive government lawyer and then as a Harvard law professor, Frankfurter wanted a symbol who would embody rejection of the then-libertarian-conservative Supreme Court majority.

Holmes, the Boston Brahmin war veteran with the military mustache, was a hero from central casting — and usefully different from nearly all Frankfurter’s left-wing allies, like the Jewish Progressive Louis Brandeis, who would ultimately join Holmes on the court. The image Frankfurter and others created is captured in the title of a popular Holmes biography written by Catherine Drinker Bowen and published in 1944: “Yankee From Olympus.”

Frankfurter courted Holmes, cajoled him and surrounded him with brilliant young lawyers who told him he was the greatest American judge ever, and maybe in the whole Anglo-American legal tradition. Holmes responded to the treatment with a steadily increasing line of important opinions that advanced Progressive causes, all the while eschewing Progressive beliefs. But if Frankfurter’s goals in lionizing Holmes are easy to discern, the same is not true of Budiansky’s biography, which self-consciously rejects critical studies of the justice over the past 40 years in favor of a worship that can verge on apologetics.

This Holmes is in any event a fighter. Budiansky, a prolific historian and journalist, devotes more than 50 pages to Holmes’s Civil War career, including diagrams of battlefield movements. This material has not been dealt with in the same detail in previous biographies. These pages are exciting and well written, their subject presumably more to Budiansky’s taste than the mere work of the law, to which Holmes devoted the next 71 years until he died at 94.

Budiansky’s warrior Holmes is not permitted to be an intellectual, despite devoting a decade of his life to a work of dense scholarship, his pathbreaking book, “The Common Law.” He must share Budiansky’s outspoken contempt for academics, despite having sought and accepted a professorship at Harvard Law School, resigning only because he was appointed to the bench. This Holmes could not possibly have had sex with one or more other young men, as an earlier biographer, Sheldon Novick, has suggested. He cannot have had a troubled marriage. His law clerks cannot have been surrogate sons for the childless justice. Holmes’s enthusiastic embrace of eugenics must be the product of his time, not an expression of the distinctive contempt that he considered as proof of his own tough-mindedness.

Budiansky’s playing down of the contradictions that make Holmes infuriating and interesting is particularly mystifying because he has dived into the sea of Holmes’s voluminous writings and even contributed to Holmes scholarship. Budiansky goes through the mass of Holmes’s state court opinions and tells previously untold tales of Holmes’s several years of experience as a trial judge riding circuit through the state.

Budiansky also does a fine job of telling the story of Holmes’s gradual move to embracing free speech under the influence of Judge Learned Hand and the Harvard Law School professor Zechariah Chafee. Along the way, Budiansky makes good (if grudging) use of Louis Menand’s “Metaphysical Club,” relying on its brilliant aperçu that the war made Holmes “lose his belief in beliefs.”

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