Once upon a time, Oliver Wendell Holmes Jr. was the great modern American jurist. The “Yankee from Olympus,” as Catherine Drinker Bowen’s 1944 biography called Holmes, was the first celebrity justice of the U.S. Supreme Court, as popular then as the Notorious RBG is now. Nearly a century ago, the Columbia Broadcasting System delivered a celebration of Holmes’s 90th birthday into living rooms around the country. After his death, Hollywood’s MGM produced a popular feature film about him, promoted with an adulatory trailer with acting legend Lionel Barrymore. Secretary of State Dean Acheson confessed dreamily that Holmes was the greatest man he had ever known.
OLIVER WENDELL HOLMES: A LIFE IN WAR, LAW, AND IDEAS By Stephen Budiansky
W.W. NORTON, 592 PP., $29.95
Veneration of Justice Holmes has, however, declined steeply. For a generation, critics have attacked him for his callousness toward the poor and disadvantaged, and for taking little interest in the fate of African Americans in civil rights cases, so long as the formalities of the judicial process were properly respected. Moreover, the legacies for which his admirers once lionized him are now in bad disrepair. His insistence on judicial deference to democratic majorities has little support in today’s Supreme Court. Still worse, in the era of Citizens United, the ideas of free speech for which Holmes once fought now obstruct the democratic outcomes he so vigorously defended. Justice Holmes’s two legacies—respecting democracy and defending the First Amendment—are in a slow-motion head-on crash.
In his new biography of Holmes, Stephen Budiansky adopts a creative new way of rescuing Holmes for our times. Although he updates many long-standing defenses of Holmes’s jurisprudence, his focus is on personality: This is a human Holmes, a man with whom one might like to have a drink, smoke a cigar, and discuss the meaning of life. Less than two decades ago, Louis Menand’s The Metaphysical Club offered us a superhuman Holmes who translated the lessons of the Civil War into a language for modern American liberalism. Now Budiansky presents a less ambitious, more private, and more plausible Holmes, one who exercised less influence and who made his share of mistakes, but who became a symbol of the law nonetheless.
