17 September 2012


'The House that Built Holmes' by Brad Snyder in 30 (3) Law & History Review (2012) 661-720 argues that
Justice Oliver Wendell Holmes Jr. became the first modern judge to attain iconic status. G. Edward White, the preeminent Holmes scholar of his generation, has argued that Holmes's canonization began with the "dramatic upsurge in the amount of commentary" in the late 1920s by reformers who appreciated his "modernist epistemology" and that Holmes and Brandeis achieved "the status of professional and cultural icons in the decade of the 1930s." This Article argues that Holmes's canonization began a decade earlier because of his association with a group of young progressives at the 'House of the Truth'. During the 1910s, Felix Frankfurter, Walter Lippmann, and other progressives turned a Dupont Circle rowhouse into a salon, invited Washington establishment figures to frequent dinner and cocktail parties, and adopted Holmes as the House's hero. They canonized Holmes to attack the Court's anti-labor decisions. Holmes participated in his own canonization to further his ambitions of elite recognition. At age seventy, he was frustrated on the Court and considered retirement. He wrote for what Laurence Baum has described as a discrete judicial audience at the House of Truth. Holmes's canonization matters because it exemplifies canonization as political instrumentalism. The House wanted constitutional change; Holmes wanted recognition.
Snyder comments that -
There are many different types of constitutional canons. The canonization of a judge, however, is different than the canonization of a judicial opinion. A judge is canonized the way that saints are canonized, achieving an iconic or sacred status. Most judicial opinions are canonized the way poetry or literature becomes part of the literary canon. A few opinions such as Brown v. Board of Education, however, achieve iconic or sacred status. Although I have previously bifurcated the constitutional canon into upper and lower canons, I now refer to two different types of canons: the sacred canon and the literary canon. Holmes and other judges join the former, his classic judicial opinions and other writings the latter. 
The beginning of Holmes’s canonization matters because it represents another example of canonization-not because of philosophical agreement but because of political instrumentalism. My previous canonization article highlighted an example of canonization as political instrumentalism, arguing that conservatives canonized Brown v. Board of Education. Beginning with William Rehnquist’s 1971 Supreme Court confirmation hearings, conservatives recognized that they could not participate in the constitutional conversation without affirming Brown’s validity. As a result, conservatives were able to get confirmed to the Court and control Brown’s interpretation. 
The House of Truth’s and Holmes’s mutual frustration with the Supreme Court led to his canonization. The House canonized him to launch a political attack on an antilabor Court. The Court had struck down state legislation under a liberty of contract theory and federal legislation based on a narrow conception of the Commerce Clause, legislation that would have furthered the House’s progressive aims of leveling the playing field between labor and management. Rather than use the Court as an engine for social or political change, the progressives at the House of Truth viewed the Court as an obstacle. Their electoral hopes of constitutional change had ended with Theodore Roosevelt’s failed 1912 presidential cam- paign. Canonizing Holmes replaced electing Roosevelt. With little hope in electoral politics or in finding five votes on the Court, the House of Truth’s progressives clung to his dissents in Lochner v. New York and other labor cases. The House’s canonization of Holmes exemplified nonjudicial consti- tutional change and an elitist version of popular constitutionalism. 
Holmes participated in his own canonization because his association with the House of Truth’s young progressives helped him achieve an elusive goal: immortality. At the age of 70, he was frustrated on the Court and considering retirement. Despite having authored groundbreaking legal scholarship with The Common Law and The Path of Law and having sat for nearly 20 years on the Supreme Judicial Court of Massachusetts (including several as chief justice), Holmes was a relatively obscure justice overshadowed by the reputation of his more famous physician–poet father. His “jobbist” philosophy, doing his job better than anyone else, had failed to win him widespread recognition. Although he never espoused their reformist ideas, Holmes liked his young friends and sought to please them with his opinions. He exemplified what political scientist Laurence Baum has described as “judges writing for discrete audiences.” The progressives at the House of Truth, in turn, helped Holmes eclipse the repu- tation of his father and cement his judicial legacy. ... After Holmes’s 70th birthday, he had found a specific audience in the House of Truth’s progressives, a group of experts who appreciated his esoteric language, colorful epigrams, and intellectual shorthand. He was now writing for an intelligentsia who appreciated his opinions most, who quoted them, wrote articles about them in the Harvard Law Review and New Republic, and made him more famous than his father. Writing for his discrete audience at the House of Truth helped Holmes achieve what he most wanted (and what Posner says judges maximize): prestige. Holmes was not motivated by money or mass popularity but by the desire for a lasting reputation among his elite peers. Or, as he put it, “the only reward that counts for much is when those whom he deems competent say that he has touched the superlative.” The recognition that he sought was not only among legal elites but also elites in American society. He was deeply moved when he received the Roosevelt Medal in 1925, stole the show during the national radio program celebrating his ninetieth birthday, and enjoyed Roosevelt’s visit to his home on his 92nd birthday. The House of Truth’s progressives provided Holmes with both types of elite recognition and even the mass publicity that he claimed not to need but still wanted. Holmes had found an intellectual cheering section that spread the gospel of his greatness. 
Holmes wrote most often for his audience at the House of Truth in dissent. His dissents resonated with them, consoled them in defeat, and gave them ammunition to build his reputation and to attack the Court’s doctrinal intransigence in labor and free speech cases. Fortunately for Holmes, he enjoyed writing dissents more than majority opinions. “One of the advantages of a dissent,” he wrote Laski, “is that one can say what one thinks without having to blunt the edges and cut off the corners to suit someone else.” Upon becoming chief justice, Taft agreed: “He has more interest in, and gives more attention to his dissents than he does to his opinions he writes for the Court, which are very short and not very helpful.” Holmes’s best-known opinions are his dissents not only because the House of Truth publicized them but also because his language and his epigrams could be as colorful as he wanted them to be. Holmes knew which dissents mattered to Croly, Frankfurter, Hand, Laski, Lippmann, the Harvard Law Review, and the New Republic. They let him know which cases they were interested in by writing to him in advance of oral argument or before they had read certain opinions. He sent them copies of those opinions. He basked in their praise. And, in the area of free speech, his interest grew when theirs did. It is possible that the House of Truth’s interest in labor and free speech cases may have affected his votes in those cases. It is even more likely that the House’s interest in those subjects may have caused Holmes to write a full-fledged dissent rather than join one of Brandeis’s or (as was common then) simply note his dissent at the bottom of the majority opinion. As much as the House’s progressives played on his ego and vanity, he played on their enthusiasm and mutual frustration with the Court. He knew they would outlive him and carry on his legacy. 
Fortunately for Holmes, he had several factors in favor of his canonization. First, he was fortunate to inherit an extraordinary set of genes that enabled him to live for nearly 25 years past his 70th birthday. His longevity gave his canonization a long incubation period. It allowed him to tackle many legal issues (economic regulation, labor relations, privacy, and free speech) with modern resonance and brought him to the attention of the young progressives who created and perpetuated the Holmes legend. 
If, like his best friend John Chipman Gray, he had died in 1915 of a heart attack, Holmes would have fallen short of his goal of escaping his father’s shadow and achieving his own lasting fame. He would be known today for The Common Law, The Path of Law, and his Lochner dissent - great achievements all - but he would not be known as one of twentieth century America’s greatest jurists. He would largely be considered a nineteenth-century jurist on par with the first Justice Harlan. 
Second, Holmes was savvy enough to recognize that he needed the progressives at the House of Truth as much they needed him. He cultivated and wrote for the approval of this discrete audience because he needed their approval to achieve what he had worked so hard and so long for: the elusive mystique and immortality that causes him to be the object of continued fascination by legal scholars and historians and to be quoted in high-profile Supreme Court opinions.