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.”