|( 1887); James v. Bowman, 190 U.S. 127 ( 1903); Hodges v. United States, 203 U.S. 1 ( 1906); Butts v, Merchants & Miners Transportation Co., 230 U.S. 126 ( 1913).|
|29.||Monongahela Navigation Co. v. United States, 148 U.S. 312 ( 1893); Adair v. United States, 208 U.S. 161 ( 1908); Adkins v. Children's Hospital, 261 U.S. 525 ( 1923); Nichols v. Coolidge, 274 U.S. 531 ( 1927); Untermyer v. Anderson, 276 U.S. 440 ( 1928); Heiner v. Donnan, 285 U.S. 312 ( 1932); Louisville Joint Stock Land Bank v. Radford, 295 U.S. 555 ( 1935).|
|30.||"Constitutional law and cases with constitutional undertones are of course still very important, with almost one-fourth of the cases in which written opinions were filed [in the two most recent terms] involving such questions. Review of administrative action. constitutes the largest category of the Court's work, comprising one- third of the total cases decided on the merits. The remaining . . . categories of litigation . . . all involve largely public law questions." Frankfurter, op. cit. supra note 1, at 793.|
|31.||Rice v. Elmore, 165 F.2d 387 (C.A. 4th, 1947), cart. denied 333 U.S. 875 ( 1948); United States v. Classic, 313 U.S. 299 ( 1941); Smith v. Allwright, 321 U.S. 649 ( 1944); Grovey v. Townsend, 295 U.S. 45 ( 1935); Brown v. Board of Education, 347 U.S. 483 ( 1954); Bolling v. Sharpe, 347 U.S. 497 ( 1954).|
Richard Tench. Whose side are the lawyers on?
What ever happened to Oliver Wendell Holmes, Jr.? Literally he is dead, of course. He was dead in that sense before I first knew that he still lived on in his cultural contributions, those creative acts that make a man everlasting in a practical way, not in the way we pray for immortality in our churches. For him, practical immortality took the form of pieces he added to the mosaic that we recognize as man's organized common sense, and that we call constitutional law. His literal dying was but an event, perhaps no more than an occasion for other men to renew their faith in the part of him that lives beyond death.
If you happen to have forgotten Holmes's cultural contributions, you are at least in good company. Constitutional lawyers have too, men specifically charged with remembering them. However, what is worse for those lawyers Is that they have forcibly displaced those concepts of law that Holmes once erected as a foundation for a constantly growing civility. So that today, when American law is so thoroughly represented by our own native versions of what the Russians call "Apparatchiks" and the Germans "Gauleiters," an active exercise of will is needed to jog the memory about Holmes's life and contributions.
Holmes, then, was a United States Supreme Court Justice. He was appointed to that Court by Theodore Roosevelt, who later came to wish that he had never heard of Holmes, since, like all Roosevelts, Theodore had a very personal view of the presidency, and Holmes had a most catholic attitude towards the law. Even when Holmes was appointed, there were old senators who complained, with no apparent sense of irony, that he was too old for the job, the same old senators who subsequently opposed Justice Brandeis because he was too Jewish. Hypocrisy masquerades; the higher the setting, the more outlandish the costumes. Actually, those old senators knew that Brandeis, like Holmes, would interpret the Constitution too "liberally." They were right. He did. They were right too that Holmes when appointed had almost reached the retirement age set by corporations, universities, and virtually every segment of society except the United States Congress.
Yet Holmes sat on the Supreme Court for more than thirty years, with such intellectual virility that along with Brandeis and Pound he fathered the sociological view of constitutional law. Their brainchild was not named "sociological" until much later, and is still not recognized publicly for what it is by Supreme Court justices, bar associations that recommend them, presidents who appoint them, senators who confirm them, and most teachers of constitutional law, not excepting those at Holmes's alma mater, Harvard, where he once lectured on the