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Excerpted From: Thomas Halper, Justice Holmes and the Question of Race, 10 British Journal of American Legal Studies 171 (Spring, 2021) (220 Footnotes) (Full Document)


ThomasHalperBorn into a life of intellectual and social privilege, where “the flowering of New England was almost a family affair,” Oliver Wendell Holmes, Jr., as a young man was a bit of an idealist. As the nation was careening toward what William H. Seward was famously to call an “irrepressible conflict” between slavery and freedom, Bostonians in the Holmes' circle immersed themselves in the question of race. Holmes' mother, normally reserved, was emphatic in denouncing slavery as evil and in lauding its antidote, abolitionism. His father, on the other hand, a renowned essayist, dean of the Harvard Medical School, and one of the nation's most prominent public intellectuals, disapproved of slavery but regarded it as a “physical act” to be accepted “to the minimum consistent with our existence as a united people.” Some members of his monthly Saturday Club, however, like Hawthorne and especially Emerson, were committed abolitionists, and bright, young Holmes, who often mixed with his elders, perhaps also felt their influence.

Years later, Holmes recalled that “in my day I was a pretty convinced abolitionist and was one of a little band intended to see [abolitionist] Wendell Phillips through if there was a row after the meeting of the Anti-Slavery Society just before the war.” His closest friend at Harvard, Penrose Hallowell, whom he called “the most generously gallant spirit [and] the greatest soul I ever knew,” had volunteered for the underground railroad. Holmes could easily have avoided service in the Civil War with a $300 payment his family could have afforded without difficulty, but, encouraged by his mother, he withdrew from Harvard and enlisted. When he learned that his unit would be based in Boston, he transferred to another that saw combat, the Twentieth Massachusetts Voluntary Infantry, which suffered more combat deaths than nearly any other unit in the army. A Boston abolitionist, recalling the euphoria of the day, said that “it was as if one had learned to swim in air, and were striking out for some new planet.”

Yet at a Memorial Day speech nearly twenty years after the war, Holmes remembered thinking only that “slavery had lasted long enough,” possibly the most tepid condemnation imaginable from a writer whose “words were feathered arrows, that carried to the heart of the target, from a mind that searched and saw.” The “issue of slavery [had] captured Holmes' attention” and sent him on to war, but the abolitionist commitment was not rooted in personal experiences with slaves or free blacks nor did it even induce him to avoid relationships with Southerners at Harvard from slave owning families. He later recalled of his generation that “our hearts were touched with fire,” but in truth it was a kind of kindling that quickly burned itself out.

Nonetheless, Holmes' war experiences were transformative, leaving him with “more cold steel in his make-up. “I am not the same man (may not have quite the same ideas),” he wrote his mother after the Overland Campaign. He was seriously wounded three times, very nearly died from dysentery, and saw his best friend, Henry Abbott, killed in action. The ignorance and stupidity of some of his commanding officers--an ignorance and stupidity that many soldiers and friends of his paid with their lives--left him shaken. “I see [a] youthful lieutenant ... when I looked down the line,” he recalled. “The advance was beginning, we caught each other's eye and saluted. When next I looked, HE WAS GONE.” The Battle of Ball's Bluff made an especially heavy imprint. Union soldiers were surrounded on three sides by Confederates and on the fourth by a sheer cliff overlooking a swift flowing river. The result was a massacre that left Holmes shot and contemplating taking poison his father had given him, if facing death. “I made up my mind to die,” he wrote his mother, but having passed the test for combat valor, he boasted, “I felt and acted very well and did my duty, I am sure.” Everywhere were men struggling to fight and to survive, all for no real purpose, and randomness so often seemed to determine life, death, injury. At one point in the war, he wrote home, “As you go through the woods you stumble constantly, and if after dark perhaps tread on the swollen bodies already fly blown and decaying, of men shot in the head, back, or bowels.”

By the time of the Emancipation Proclamation in 1863, which his mother hailed emotionally, he dismissed her high spirits and spoke of the fighting that lay ahead. In 1864, he wrote home that he had “felt for some time that I didn't any longer believe in this being a duty.” He had had enough of the war, perhaps suffering from undiagnosed post-traumatic stress disorder. By this time, he had drifted away from Hallowell and become close friends with Abbott, a courageous soldier (“In action he was sublime” who flaunted his contempt for abolitionists and blacks. He recalled Abbott's “splendid coolness,” and later celebrated a soldier's faith “to throw away his life in obedience to a blindly accepted duty, in a cause which he little understands, in a plan of a campaign of which he has little notion, under tactics of which he does not see the use.” But this was not his way. He wrote his mother that “I can no longer endure the horrors of the line .... war demoralizes me ... now I honestly think the duty of fighting has ceased for me.” When his three year enlistment ended, he returned to Boston. “I started in this thing as a boy,” he wrote, “and am now a man.”

Back home, Holmes found that his idealism had peeled away like bruised skin off a fruit. “The law had broken down in America,” wrote Edmund Wilson, and “the Constitution had gone to pieces. It was impossible for an honest man of Holmes' probing intelligence to pretend that the law was a sacred code, which had simply to be read correctly.” Louis Menand thought that the war had caused Holmes to “lose his belief in beliefs,” but that is not exactly so, for what remained was a belief, really a fixation, on struggle. As Holmes, Sr. had observed, “Every now and then a man's mind is stretched by a new idea or sensation and never shrinks back to its former dimensions.” Holmes, Jr.'s new idea, as he expressed it in an 1873 article, was that “the struggle for life [is] the law of human existence,” an idea that seemed validated by his war experiences and the now potent theory of evolution.

But where the typical Social Darwinists of his day imagined that the struggle led inexorably to the improvement of the race, Holmes believed that the randomness of life meant that the results might be negative as well as positive. In his eyes, the optimists' assumption was simply an act of faith, bereft of evidence. All one could say for certain was that struggle led to more struggle. Beyond that, it was hard to know where it led. But Holmes did not collapse in existential despair. For him, as for Nietzsche, the discovery of truth may be beyond human capacity, but we can at least honor the will to struggle for individual autonomy and greatness. For Holmes, this meant launching his legal career with enormous drive and ambition. Toward the world, though, he looked with his famous (or notorious) detachment: “If my fellow citizens want to go to hell I will help them,” he wrote a friend. “It's my job.”

By the time he was a famous judge, Holmes' abolitionism had quite evaporated. What remained was a distaste for its intensity and moral certainty. Indeed, he admitted that he “came to loathe in the abolitionists the conviction that anyone who did not agree with them was a knave or fool.” He derided them for putting “their ideals and prophecies with the slight superior smile of the man who is sure that he has the future .... I can only say that the reasoning seems to me inadequate.” They seemed to him like the temperance advocates of prohibition.

By this time, too, the Civil War's goal of freedom for the slaves had in peace time turned to ashes. Legally required racial segregation, augmented by violence and terror, had enshrined white supremacy in the South and left the black population in poverty and subjugation. Most whites in the North hardly seemed to notice, but not Holmes. To complaints about the Sacco and Vanzetti trial, for example, he answered, “If justice is the interest why do they not talk about the infinitely worse cases of the blacks?” And again, “A thousand fold worse cases of negroes come up from time to time but the world does not worry over them.”

Holmes' service on the Supreme Court, particularly in the first two decades or so, coincided with an explosion of race riots that inflicted heavy losses in life and property, almost exclusively on blacks. In the South, riots took place in Pierce City, Missouri (1901); Statesboro, Georgia (1904); Atlanta (1906); Houston (1917); Elaine, Arkansas; Jenkins county, Georgia; Charleston; Longview, Texas; Washington; Norfolk; Knoxville; and Annapolis (1919); Ocoee, Florida (1920); Tulsa (1921); Perry, Florida (1922); and Rosewood, Florida (1923). At the same time, rioting also occurred in the North at Denver (1901); Evansville, Indiana (1903); Springfield, Ohio (1904 and 1906); Greensburg, Indiana (1906); Springfield, Illinois (1908); East St. Louis, Illinois (1917); and Indianapolis and Omaha (1919). DuBois had predicted that the “problem of the twentieth century is the problem of the color line.” Holmes might have been vaguely aware of that. Consider his voting and opinion record on the race related cases decided during his tenure on the Supreme Court.

[. . .]

Holmes' habitual self-restraint clearly frees him from the charge of having been cursed by a hunger for power. Yet he was plainly smitten by the claims of vanity, as was evident in his “striking,” look-at-me appearance--the old-fashioned shirts and collars, the huge white moustache that nearly covered his mouth. As a former clerk put it, “He cut a dashing ... figure.” Holmes might not have concerned himself with the opinion of the rabble of the hoi polloi, but after two decades of unearned relative obscurity on a Massachusetts court, he very much wanted the approval of intellectuals--perhaps, the same kind of intellectuals he had encountered in childhood congregating around his father. As Wilson observed, “It is Holmes' special distinction ... that he never dissociates himself from the great world of thought and art,” that is, from a realm inhabited not by the lawyers and law professors that normally follow judges, but by the larger intellectual community. Advancing causes well established in these circles, like free speech or government regulation of business, would earn him plaudits for his bold sagacity, and his dissents in these areas have become legendary. As one Progressive wrote, “No judge who has sat upon the bench has been more progressive in his outlook.”

On the other hand, safeguarding the interests of blacks, whom these same intellectuals had all but forgotten, offered no comparable rewards. Holmes did not want Harlan's Don Quixote mantel, which offered in place of adulation merely the label of self-righteous troublemaker. “Deep seated preferences,” he wrote, “cannot be argued about,” and what preferences seemed more deep seated than racism? Yet if Holmes were unwilling to argue about this preference, he was more than willing to argue about deep seated preferences concerning free speech or government regulation of business. “Congress cannot forbid all efforts to change the mind of the country,” he wrote in his much quoted Abrams dissent. Insisting that anti- peonage and jury exclusion legislation be enforced, however, was evidently a step too far. These preferences were left untouched.

Holmes, unsurprisingly, would have an answer to all this. “Belittling arguments,” he once said, “have a force of their own,” which reminds us that all of us (and not merely Holmes) are radically imperfect. “Out of the crooked timber of humanity,” in Kant's words, “no straight thing was ever made.” Holmes remains a towering figure in American law: it was Holmes who breathed life into the First Amendment, who battled liberty of contract and a constricted construction of the commerce clause, who modernized the takings clause, who gave inspiration to legal realism--and this impressive list is incomplete. Holmes was truly “a bridge between the old regime and the new order.” On his retirement, Cardozo called him “the greatest of our age in the domain of jurisprudence; and one of the greatest of the ages.” Even a modern critic conceded “there is something grand about the man.” Yet Holmes failure to address the question of race with realism and compassion remains, beyond all doubt, a great stain on his reputation.

Baruch College & the CUNY Graduate Center

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