More Than Just a Judge: The Legacy of Oliver Wendell Holmes, Jr.

When a series of improbable political events brought Oliver Wendell Holmes, Jr. to the U.S. Supreme Court in 1903, he was not the most famous person named Holmes. His own author-father and Sir Arthur Conan Doyle’s fictional detective both merited more acclaim, and even the mass murderer known as “Dr. H. H. Holmes” still likely attracted more notoriety. Holmes Jr. often worried that his legal talent, for which he himself had the highest regard, would never be recognized properly.

How, then, did Holmes finally become, when he was in his eighties, a much-lionized public figure? During the Progressive Era, as Justice Oliver Wendell Holmes: Law and the Inner Self tells the story, a group of prominent, largely Jewish intellectuals adopted Holmes; these younger men, led by Felix Frankfurter, saw him merging judicial modernism with a Victorian aristocrat’s sense of noblesse oblige. Seeking legitimacy for their own reform agenda, Frankfurter and his allies used both legal journals and popular publications such as The New Republic to create the image of an enlightened “Yankee from Olympus.” This Holmes was not only a great legal mind but a committed progressive and a firm defender of civil liberties, particularly First Amendment freedoms. This legend always attracted doubters and dissenters, particularly from natural law jurists who equated Holmes’s brand of legal positivism with “totalitarianism,” but Holmes never lacked for equally passionate advocates, particularly among the devotees of legal realism who praised him for recognizing that judicial decision making often demanded social policy making.

For many years, however, the debate over the “real” Holmes had to proceed with access to his personal papers controlled by authorized biographers. Mark DeWolfe Howe, a professor at Harvard Law School who had once served as the Justice’s private secretary, offered such a detailed account of Holmes’s early life and legal work that two biographical volumes ended without Holmes ever having rendered a single judicial opinion. After Howe’s death in 1967, Holmes’s literary executor chose Grant Gilmore of Yale Law School to finish the project, but Gilmore died in 1982 without publishing any formal biographical work on Holmes. Eventually, overseers of the Holmes legacy gave up on an authorized biography, and Harvard Law School (which had regained the papers after Gilmore’s death) arranged for a microfilm edition of the Holmes papers. The result has been a number of specialized studies and several biographies, including this superb entry by G. Edward White, a law professor-historian whose previous projects have extended from the Marshall to the Warren Courts.

Holmes’s life is now well enough known that White’s book can assume that the general outlines of his private and public lives are familiar, at least to students of legal and constitutional history. Seeking to distinguish itself from other recent contributions to the Holmesian literature, this biography promises to concentrate on the “interaction” between the private and public Holmes, between his “professional endeavors” and his “inner self.” In addition to this focus on “the relationship between personality and thought,” it also hopes “to describe Holmes’s personal and intellectual life so as to emphasize the presence of certain central personal characteristics,” to explicate “certain distinctive ideas” that Holmes held, and to explore certain “themes” (such as a “vast and driving ambition”) evident in every phase of his life (pp. 4, 5).

Pursuing this ambitious agenda, the book moves back and forth between the personal and the professional. It must, as its author freely concedes, traverse sometimes familiar ground: the friction between Holmes and his famous father, the wounds (physical and psychic) that Holmes suffered during the Civil War, the early legal writings (particularly The Common Law, published in 1882), the twenty years on the Supreme Judicial Court of Massachusetts, and the nearly three decades on the U.S. Supreme Court.

Departing from a strictly biographical format (which includes a carefully argued chapter on...