The Great Dissenter would have had a lot to say about the current Supreme Court–and none of it good.
This is a sad essay, for much of my reading recently has been in the opinions of the Supreme Court, and their narrow unyielding quality has sent my mind back to the towering figure by the side of whom Chief Justice Hughes seems merely a politician and Justice Sutherland a schoolmarm. The triumph of the present Supreme Court majority is in a real sense a triumph over Justice Holmes and the memory of Justice Holmes. In the same sense it is a triumph of legalism and business enterprise over literature and the philosophic mind. As I have watched the Supreme Court majority during the past fifteen months riding roughshod over every principle of humanism and tolerance that Holmes ever stood for, my mind has turned back with increasing frequency to Holmes himself–to his decisions and his speeches and his letters, all fit to stand with the great writing of America and its noblest thinking. I have turned back in quest of the roots of his flowering and defeat.
What emerges most clearly as one reads Holmes and reads about him is that here was a whole man. His genius–and it was genius-did not proceed from eccentricity, nor did it proceed from revolt. It was not the schizoid genius of a Poe, nor the tight austerity turned into flame of an Emerson, nor the truncated genius of a Melville. There was a wholeness about Holmes which could come only from the flowering of the sole aristocracy America has ever had–the New England intellectual aristocracy.
The picture that we have of Holmes as he grew into maturity is the picture of a young New England intellectual aristocrat, with literary and philosophical tastes, careening to success in his chosen profession of the law. He had chosen the law deliberately as a pathway to expression and not because some inner need or some cruel urge and pressure of the time dictated that career and that alone. He had a hunger for greatness or distinction of some sort and a hunger for adventure. He got his chance at the second during the Civil War, in which he was wounded three times and distinguished himself for bravery. When he came back from war he was ready to plunge just as intensely into the battles of peace, if only he could get an adversary formidable enough. That may be, indeed, why he chose law: simply because to fashion something great and enduring out of such barren and unyielding material one would need to have a firm sculptor’s hand, and ample heat of the brain with which to govern the chisel. “In our youths,” he afterwards said, “our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing.” It was this conviction that enabled him to master the technicalities of legal study, read his fill of the English Yearbooks, get out his edition of Kent’s “Commentaries” and his book on the “Common Law.” But even as a young lawyer he was still absorbingly interested in philosophy. In an office on Beacon Street, with the shades drawn, the gas-light flaring, a whiskey bottle on the table, and Holmes’s tall frame leaning against the mantel, he and William James would spend the evening in talk, “twisting the tail of the cosmos.”
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He seemed to have all the gifts the gods could offer: family, wit, elegance, grace, a profound belief in life, a quiet self-assurance, a deep sense of security. He was of the leisure class, he lived and talked in the grand manner, with just enough hint of the casual, the profane, and the shocking to make it clear that the grand manner was something he adopted deliberately while he viewed it objectively. His success was like an irresistible force. He taught at Harvard College; got the first professorship of law for which there was an opening; and, barely launched on legal teaching, was elevated to the Supreme Court of Massachusetts. No wonder that later he was able to touch the hearts of all young men with fire. For what he did for them was to take a profession that was rapidly becoming too commercialized and sordid even for the strong stomachs of American youth and invest it with nobility, grandeur, daring.
Holmes came to the bench already equipped with a philosophy which he had compounded somehow out of Plato, Emerson, and William James and out of his own already fabulous experience. It was not a self-contained philosophic system in which the ends always met. More often than not he brought to the writing of one of his opinions merely a series of sharp insights and sharper phrases, which he would proceed to lick into shape and give an organic structure mainly by his unflagging vitality. His thought flowed from an insistence that any fact had to validate itself before it could disturb his desire to let past experience stand. “All that I mean by truth is what I can’t help thinking …. But I have learned to surmise that my can’t helps are not necessarily cosmic.”
But he had not rid himself of the influence of Plato, or of Plato in Emerson. Try as he would to wash his thought in the cynical acid of pragmatism, he still lived considerably in the realm of essences. There was always a straining for the universal, a restlessness until he had shown “the relation of his fact to the framework of the universe.” Although he was called a sociological jurist, the values and experience he cared most about were of invariance rather than change. He had his eye peeled always for the curious uniformity with which the human animal behaves, whatever the century: he sought identities, whereas his colleague Brandeis always sought mutations. His equipment in the lore of human uniformity was profound; his equipment in the sciences of social change was negligible He gave lip-service to economics, and said that the man of the future in law was not the black-letter man but the economist; yet his own economics was fragmentary and almost archaic.
But beyond philosophy or economics, Holmes was ridden by two myths: that of the soldier and that of the gambler. Life was a campaign, requiring heroic and disciplined individual qualities. Life was a throw of the dice, but the stakes were worth the risks. Both myths, it will be seen, are of the leisure class. His memory of the war made his approach to life that of the good soldier; his philosophy was an aleatory philosophy-the gods playing at dice with human destinies; his theory of law was that it was merely “the rules of the game.’ With this framework it was amazing how successful Holmes was in handling the problems of a complicated industrial world. On the Massachusetts bench his tough and skeptical conservatism allowed the existing legal rule–embodying all the changes and chances of the past–to stand unless the new doctrine forced its way in. On the United States Supreme Court he turned his skepticism toward the process of judicial interpretation itself, and would allow the action of the legislature–embodying men’s experience and the risks they were willing to take in learning how to govern themselves–to stand unless it seemed entirely unreasonable. What had seemed conservatism at first now seemed radicalism.
But Holmes was no radical. He was against any “tinkering with the institution of property.” “The notion that with socialized property we should have women free and a piano for everybody seems to me an empty humbug” After rendering an opinion favorable to some strikers he went on very sedulously to disclaim having any illusions that strikes were economically valid. He saw them merely as “a lawful instrument in the universal straggle for life.” In fact, his whole conception seems at times an aristocratic refinement on Darwinism. He believed in the law of the economic jungle, but he wanted to see the beasts behave like gentlemen and observe the rules of the game. He was able to come out in protection of trade unionism on the ground that it gave the employees “equality of bargaining power”- that is, a good gambling chance. But to apply an individualistic approach or a philosophy of risk and gamble to American business was a thankless task. Business was more adept at that than was anything dreamed of in Holmes’s philosophy: it had Holmes licked even before the word go. Given monopoly conditions, law could not be regarded with Olympian calm. To view thus the position of the worker as against the large corporation, or the small business man as against the holding company, was at best a bitter sort of irony.
Like Henry Adams, Holmes was the flowering of an aristocracy that felt itself bewildered under the impact of the new industrialism. But while Adams analyzed with a poignant awareness the sources of his defeat, Holmes gallantly and robustly proclaimed that one could still live in a world like this. Even aristocrats could. The function of the aristocrat was to maintain the great traditions while the forces loose in an industrial world battled it out to a conclusion. But Holmes is dead, and his influence lingers only with a few dissenters, protesting in a diminuendo. The prevailing tone of style and thought in the Supreme Court decisions is now set by Justice McReynolds and Justice Sutherland. But while Holmes’s defeat shows that the preindustrial aristocratic tradition cannot grapple with the problems of finance capitalism, he will always be proof that the tradition could generate a superb personality and a great style.
