Oliver Wendell Holmes, Jr.: Dissent in Lochner v. New York

About the Author

Oliver Wendell Holmes, Jr., like many before him, believed John Marshall, the “Great Chief Justice,” to be the one person who best embodied American law. But Holmes, for his part, so profoundly influenced American law during his own lifetime that many others, like the noted Court historian Bernard Schwartz, believe that “it was Holmes, more than any other legal thinker, who set the agenda for modern Supreme Court jurisprudence” (Schwartz, p. 190).

Born in 1841 into what Oliver Wendell Holmes, Sr.—himself a celebrated physician and writer—called “the Brahmin caste of New England” (Schwartz, p. 191), the younger Holmes spent much of his life struggling to free himself from the large shadow cast by his father. The Civil War presented him with an opportunity both to leave home and to distinguish himself in an endeavor outside his father's sphere. Holmes served with great distinction in the Union army. Seriously wounded three times, he was discharged after three years with the rank of brevet lieutenant colonel. He then returned to his father's home and, against the elder Holmes's wishes, enrolled in law school at Harvard University.

Holmes continued to live under his father's roof even after marrying at the relatively advanced age of thirty-one. During that period, Holmes assiduously applied himself to gaining distinction in the legal field, practicing as a litigator while at the same time pursuing legal scholarship as coeditor of the American Law Review. With the successful publication of his newly edited twelfth edition of James Kent's Commentaries on American Law in 1873, Holmes and his wife, Fanny, were finally able to move into a home of their own. Invited to deliver the prestigious Lowell Institute lectures in 1880, Holmes published them to great acclaim the following year as The Common Law, earning him such renown that he was soon invited to teach at Harvard Law School.

Holmes had been lecturing at Harvard for less than a year when he abruptly tendered his resignation. He had been appointed to the Supreme Judicial Court of Massachusetts a month earlier, but his university colleagues and students learned of his new position only upon reading about it in the newspapers. Holmes served as an associate justice of the state's highest tribunal for the next sixteen years. During much of that period he found the work trivial and repetitive, but he used the time to hone his style into the taut, epigrammatic form that would eventually earn him a place in the American legal pantheon. He also delivered a number of important public speeches, the most significant of which, “The Path of the Law” (1897) and “Law in Science and Science in Law” (1899), cemented his position as a pathbreaking legal realist who believed that law should be based on experience rather than on abstract principles and logic. In July 1899, when the chief justice of the Massachusetts supreme court died, Holmes was tapped to be his successor.

Holmes was not universally popular. His personal style was often characterized as combative, and in 1896 he had issued a notorious dissenting opinion in Vegelahn v. Guntner, arguing that furniture workers had a right to strike for better wages and hours, even at the expense of their employer, so long as they did so peacefully and without malice. Holmes's “actual malice” standard would later become a cornerstone of First Amendment law, but in 1902 his Vegelahn dissent threatened to derail a possible appointment to the U.S. Supreme Court. Finally, however, President Theodore Roosevelt overcame his qualms, and in August of that year, Holmes was nominated to succeed Horace Gray (who, like Holmes, had previously served on the Massachusetts supreme court) in occupying the Court's “Massachusetts seat.” Once again, Holmes declined to resign his previous post until the eleventh hour.

Holmes would serve on the Court for thirty years, during which he authored 873 opinions—more than any other Supreme Court justice has yet to write. The number of his dissents was proportionately low, but they were so eloquently and powerfully written that they have led to Holmes being dubbed the “Great Dissenter.” In what is perhaps his most celebrated opinion, his dissent in Lochner v. New York (1905), Holmes, joined by the maverick John Marshall Harlan, voted against the Court's long-standing deference to the doctrine of substantive due process, arguing for New York State's right to enact legislation limiting work hours and against unbridled freedom of contract. Writing for the majority in Schenck v. United States (1919), Holmes declared that the right of free speech was not absolute, but that same year he refined his restrictive “clear and present danger” standard in his dissenting opinion in Abrams v. United States, excluding most political dissent from government suppression.

Holmes's reputation is not unblemished. He was farsighted, to be sure, but he was also very much a creature of his times. A disciple of social Darwinism—a theory adapted to human society from Charles Darwin's “survival of the fittest” theory of evolution—he also absorbed principles of eugenics, popular in his day. He may have believed that jurists were obliged to set personal prejudices aside when deciding cases, but all indications are that Holmes contentedly upheld, in Buck v. Bell (1927), the Virginia statute mandating the sterilization of “feeble-minded” individuals.

In April 1929, Holmes's wife of fifty-seven years died. Holmes stayed on the Court, publicly celebrating his ninetieth birthday two years later, but then began to fail. Colleagues and friends hinted that it was time for him to leave, and on January 11, 1932, he did so, announcing only, “I won't be in tomorrow” (Aichele, p. 159); he submitted his resignation the following day. In 1935, two days before his ninety-fourth birthday, Holmes died of pneumonia in his home.