Justice Oliver Wendell Holmes: Law And The Inner Self

Justice Oliver Wendell Holmes ALSO BY G. EDWARD WHITE The Eastern Establishment and the Western Experience (1968) The American Judicial Tradition (1976) (Expanded, 1988) Patterns of American Legal Thought (1978) Tort Law in America: An Intellectual History (1980) Earl Warren: A Public Life (1982) The Marshall Court and Cultural Change (1988) Intervention and Detachment: Essays in Legal History and Jurisprudence (1993) Justice Oliver Wendell Holmes Law and the Inner Self G. EDWARD WHITE OXFORD UNIVERSITY PRESS New York Oxford Oxford University Press Oxford New York Toronto Delhi Bombay Calcutta Madras Karachi Petaling Jaya Singapore Hong Kong Tokyo Nairobi Dar es Salaam Cape Town Melbourne Auckland and associated companies in Berlin Ibadan Copyright © 1993 by Oxford University Press, Inc. First Published in 1993 by Oxford University Press, Inc. 198 Madison Avenue, New York, New York 10016-4314 First issued as an Oxford University Press paperback, 1995 Oxford is a registered trademark of Oxford University Press All rights reserved. No part of this publication may be reproduced, stored in a retrieval system, or transmitted, in any form or by any means, electronic, mechanical, photocopying, recording, or otherwise, without the prior permission of Oxford University Press, Inc. Library of Congress Cataloging-in-Publication Data White, G. Edward. Justice Oliver Wendell Holmes : law and the inner self / G. Edward White, p. cm. Includes bibliographical references and index. ISBN 0-19-508182-X ISBN 0-19-510128-6 (PBK.) 1. Holmes, Oliver Wendell, 1841-1935. 2. Judges—United States—Biography. I. Title. KF8745.H6W47 1993 347.73'2634—dc20 [B] [347.3073534] [B] 92-43974 2 4 6 8 109 7 5 31 Printed in the United Stales of America On acid free paper For Susan Davis White This page intentionally left blank Preface I FIRST wrote about Holmes in 1971, and he has continued to fascinate me over the years. As my scholarship turned to other subjects he remained in the back of my mind, and I expected to do a book on him at some point. But each time I considered my next book, one on Holmes did not seem to be the appropriate choice. My reluctance was partly due to the subject. Holmes had a very long and accomplished life: there was a good deal to wade through. I had heard stories about previous biographers: one was disconcerted by the prospect of plowing through twenty years of Holmes' decisions on the Supreme Judicial Court of Massachusetts; another alienated by an intensive exposure to Holmes' sometimes cold and distant personality. There were a great many pieces of scholarship and judicial opinions to be considered, and there were his voluminous papers, no longer restricted. Perversely, the very fact that a book on Holmes seemed more of a formidable undertaking the closer one approached provided a reason for me to undertake one. One could not predict how long such a book might take, or how many more productive years one would be granted—few people live as long as Holmes. The relatively recent availability of the Holmes Papers and the continuing interest in Holmes among scholars and others ensured that other Holmes biographies would appear. When I started the project, no full-scale one-volume life of Holmes had appeared since 1943; since then two such treatments have been published and more may be on the way. I did not want to have begun a project on Holmes knowing that someone else had just completed a particularly distinguished portrait of him. If such portraits were taking shape, I felt, I was better off doing my work ignorant of them. I also felt that despite the activity that was undoubtedly taking place with respect to studies of Holmes' life, I could bring to the project some interests and experience that others might not share. I had written a fair