The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes Jr

National Review, May 25, 1992 by Terry Teachout

The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes Jr., edited by Richard A. Posner (Chicago, 328 pp., $24.95)

OLIVER Wendell Holmes was a double man. A lifelong atheist who "sneered" at the concept of natural law, he took a libertarian line on freedom of expression, strongly arguing in Abrams v. United States, his best-known dissenting opinion, that "when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas." Yet Holmes believed no less devoutly in the right of legislators to conduct "social experiments that an important part of the community desires, in the insulated chambers afforded by the several states," going so far as to allow the state of Virginia to forcibly sterilize an unwed mother on eugenic grounds. Such a man cannot easily be bundled into a tidy intellectual package, although H. L. Mencken did a pretty good job of it when he described Holmes, who was wounded three times in the Civil War, as "a soldier whose natural distaste and contempt for civilians, and corollary yearning to heave them all into Hell, was cooled and eased... by occasional doubts, hesitations, flashes of humor, bursts of affability, moments of sneaking pity."

Holmes's reputation has oscillated wildly in the six decades since he retired from the U.S. Supreme Court at the age of ninety. In the Twenties and Thirties, American liberals claimed him as one of their own; today, Holmes's ferocious epigrams and unswerving commitment to the austere tenets of judicial restraint and social Darwinism ("I have no respect for the passion for equality, which seems to me merely idealizing envy") are likely to horrify the grandchildren of his early admirers. Yet scholarly interest in Holmes continues to run high. Two full-length biographies have appeared in recent years, and Richard A. Posner, who sits on the U.S. Court of Appeals for the Seventh Circuit, has now produced the first comprehensive anthology of Holmes's writing since Max Lerner's creaky 1943 volume The Mind and Faith of Justice Holmes. Brilliantly edited, lucidly organized, and equipped with a compelling introduction by Judge Posner, The Essential Holmes is one of the finest single-volume samplers of any author's work I have seen.

It's easy to see why Richard Posner, godfather of the controversial law-andeconomics school of legal theory, is interested in Holmes. Like Holmes, Posner is a pragmatist who rejects the concept of natural right, preferring to view the law as a functional instrument rather than a moralistic one; like Holmes, Posner is very much the literary jurist, as his excellent book Law and Literature: A Misunderstood Relation shows, and he obviously responds not merely to Holmes's legal doctrines but to his style and personality as well: "Not only was Holmes a great jurist, a great prosodist, a great intellectual; he was a great persona, a great American, a great life."

"Personality always contains something unique," Holmes wrote in Bleistein v. Donaldson Lithographing Co. Because Holmes was so vigorous and pithy a stylist, his own personality comes through strongly in his writings, lending them a permanent interest that transcends their judicial significance. Not surprisingly, this aspect of Holmes has been underappreciated of late. One of Holmes's recent biographers, doubtless aware that unguarded praise of his subject might be used against him in a court of sensitivity, nervously described the author of "The Soldier's Faith," that most provocative of Memorial Day addresses, as "a violent, combative, womanizing aristocrat ... who in personal letters seemed to espouse a kind of fascist ideology." Certainly Holmes's ruthless philosophy ("Doesn't this squashy sentimentality of a big minority of our people about human life make you puke?") was and is strong medicine, not to be casually quaffed by prigs. "The real Holmes," Grant Gilmore has written, "was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak." Richard Posner is infinitely more comfortable with the real Holmes than was Max Lerner. Moreover, Posner has the advantage of being able to draw on the many Holmes letters that have been published since 1943. Holmes was one of the great letter-writers, and his correspondence reveals him to have been a man of formidably wide culture, a bred-in-the-bone Brahmin who nonetheless devoured modern writers like Colette and Ernest Hemingway with relish and whose casual comments on literature invariably stick in the mind. Here, for instance, is Holmes on George Santayana: "I said (considering his possible retention of his membership in the Catholic Church) that he stood on the flat road to heaven and buttered slides to Hell for all the rest, so well does he state the fundamental skepticisms without committing himself."