Oliver Wendell Holmes

Holmes, Oliver Wendell (American jurist)

Oliver Wendell Holmes, 1841–1935, American jurist, associate justice of the U.S. Supreme Court (1902–32), b. Boston; son of the writer Oliver Wendell Holmes. He served (1861–64) with distinction in the Civil War, took a law degree at Harvard (1866), and began practice in Boston in 1867. Holmes taught (1870–73) constitutional law and jurisprudence at Harvard while editing the American Law Review and the 12th edition (1873) of Kent's Commentaries. In 1880, Holmes delivered a series of lectures on common law at the Lowell Institute. In them he attacked prevailing views of jurisprudence and proposed new conceptions of the origin and nature of law. He maintained that the law could be understood only as a response to the needs of the society it regulated, and that it was useless to consider it merely a body of rules developed logically by legal theorists. With the publication of the Lowell lectures in 1881, Holmes achieved international recognition. He became (1882) professor of law at Harvard and several months later was appointed to the Massachusetts supreme judicial court. There he served for 20 years, becoming chief justice in 1899. He was appointed to the U.S. Supreme Court by President Theodore Roosevelt in 1902.

The canons of Holmes's judicial faith were strict and demanding. He preached "judicial restraint" and firmly believed that popular majorities through their elected representatives should not have their will thwarted capriciously; when his colleagues on the court nullified social legislation—e.g., minimum wage and hour laws—as unconstitutional, Holmes vigorously objected. From his eloquent opinions in these cases he came to be regarded as the Great Dissenter. In cases dealing with free speech, however, Holmes felt it necessary for the judge to loose the bonds of restraint and prevent legislatures from assuming censorious powers. In defense of the First Amendment, he developed the "clear and present danger" rule, which allows for restrictions only when the public interest is faced with immediate threat. Set forth in the Abrams and Gitlow cases in dissenting opinions, the rule was generally accepted by the Supreme Court. Holmes's published works include The Common Law (1881), Speeches (1891, 1913), and Collected Legal Papers (1920).

See biographies by M. D. Howe (2 vol., 1957–63) and S. Bent (1932, repr. 1969); S. J. Konefsky, The Legacy of Holmes and Brandeis (1956, repr. 1974); F. Frankfurter, Mr. Justice Holmes and the Supreme Court (2d ed. 1961); A. W. Alschuler, Law without Values: The Life, Work, and Legacy of Justice Holmes (2000); T. Healy, The Great Dissent (2013).

The Columbia Encyclopedia, 6th ed. Copyright© 2013, The Columbia University Press.

Selected full-text books and articles on this topic

Justice Holmes: Natural Law and the Supreme Court
Francis Biddle.
Macmillan, 1961
Taft, Holmes, and the 1920s Court: An Appraisal
David H. Burton.
Fairleigh Dickinson University Press, 1998
Justice Oliver Wendell Holmes
Mark Dewolfe Howe.
Belknap Press of Harvard University Press, vol.1, 1957
FREE! Collected Legal Papers
Oliver Wendell Holmes.
Harcourt Brace and Company, 1920
The Common Law
Oliver Wendell Holmes Jr.
Little, Brown, 1923
American Thought in Transition: The Impact of Evolutionary Naturalism, 1865-1900
Paul F. Boiler Jr.
Rand McNally, 1969
Librarian’s tip: Chap. 7 "Oliver Wendell Holmes, Jr., and the Path of the Law"
"The Foundation of Our 'Regulatory Takings' Jurisprudence": The Myth and Meaning of Justice Holmes's Opinion in Pennsylvania Coal Co. V. Mahon
Brauneis, Robert.
The Yale Law Journal, Vol. 106, No. 3, December 1996
Clear and Present Dangers: The Importance of Ideas and the Bowels in the Cosmos
Baker, Thomas E.
Constitutional Commentary, Vol. 16, No. 3, Winter 1999
Our Constitution: Tool or Testament?
Beryl Harold Levy.
A.A. Knopf, 1941
Librarian’s tip: Chap. 3 "Holmes: Above the Battle"
Patterns of American Jurisprudence
Neil Duxbury.
Clarendon Press, 1997
Librarian’s tip: "Between Legal Formalism and Legal Realism" begins on p. 32
The Justices of the United States Supreme Court: Their Lives and Major Opinions
Leon Friedman; Fred L. Israel.
Chelsea House, vol.3, 1997
Librarian’s tip: "Oliver Wendell Holmes" begins on p. 874
Justices and Presidents: A Political History of Appointments to the Supreme Court
Henry J. Abraham.
Oxford University Press, 1992 (3rd edition)
Librarian’s tip: Chap. 8 "Into the Twentieth Century: From Theodore Roosevelt to Herbert Hoover, 1901-1933"
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