By Daniel Kornstein, Author House, 360 pages, $31.99

When he retired at age 90 from the Supreme Court in 1932, Oliver Wendell Holmes, Jr. was lauded as one of the greatest justices in the court's history. Over the years, however, he has been criticized as a power-worshipper, insensitive to the underprivileged, and cold to civil rights. In his latest book, attorney Daniel Kornstein attempts to refurbish Holmes's reputation as a great jurist and American.

Although the book's title is hagiographic, Kornstein's account succeeds in reminding us that Holmes led a life of impeccable public service that produced enduring contributions to the law. According to the author, “Holmes was the rarest of human beings—an original thinker.”

Born to wealth and privilege in Boston, Holmes was the son of the famous physician and writer, Oliver Wendell Holmes, Sr., and the abolitionist, Amelia Lee Jackson. Exposed at an early age to Boston luminaries such as Ralph Waldo Emerson and Henry James, Sr., Holmes aspired to become a man of letters.

In 1861, however, the Civil War intervened. A senior at Harvard College, Holmes enlisted in the Union Army. Over the next three years, he served with courage and distinction in the infantry. His service included several historical battles, such as Ball's Bluff, Antietam, and Chancellorsville. Amazingly, he survived bullet wounds on three occasions, almost dying on the battlefield at Antietam.

“The war for Holmes,” writes the author, was a moment of lost innocence and remembered intensity.” It was also “perhaps the greatest single influence on his mature personality, his world view, and his attitude to many issues that would come before him much later as a judge.”

Following his military service and graduation from Harvard Law School, Holmes practiced admiralty and commercial law in Boston for sixteen years. The author notes that, as a practicing lawyer, Holmes argued one case before the U.S. Supreme Court and 32 others before the Supreme Judicial Court of Massachusetts. But, “apart from arguing cases,” Holmes disliked the “the business” side of practicing law.

During his years as a practicing lawyer, Holmes served as an editor of the American Law Review and prepared a new edition of Kent's Commentaries. This research work served as the foundation for lectures that resulted in The Common Law (1881), Holmes's seminal work and one of the most influential books in the annals of American law. Published when Holmes was 40, the book has continuously been in print ever since.

One of the book's strengths is its central focus on The Common Law, in which Holmes served as “the bridge from an older legal philosophy to modern jurisprudence.”

Before Holmes, legal formalism prevailed. It “assumed that the law is a closed logical system.” Judges “did not make law,” but “merely declared law that already existed from a set of clear, consistent and comprehensive legal rules,” which Holmes later identified as a “brooding omnipresence in the sky.” To the legal formalist, law constituted “a coherent system of fixed axioms from which particular decisions and rules could be logically deduced.”

Holmes disagreed with formalists, writing that the “life of the law has not been logic, it has been experience.” The author writes that, in Holmes's view, “sterile deductive reasoning” should be replaced by “sensitive analysis and [the] weighing of competing policy considerations.”

As explained by the author, Holmes believed that “legal rules are not hard and fast and should not be enforced mechanically, nor judicial decisions made purely deductively.” The author further notes that “Holmes thought one must consider such rules as constantly evolving to adapt to changed conditions,” and that the common law should move “away from subjective personal moral responsibility to external, objective standards.”

Holmes' “evolutionary view,” writes the author, considered the law as “a living, growing thing that develops depending on human needs, changes in society, and public society. The postulates themselves change.” According to the author, “[t]his was Holmes's famous thesis.”

Famous it was. Over the next century, Holmes's thesis inspired several schools of legal thought, including legal realism, critical legal studies, legal pragmatism, sociological jurisprudence, law and economics, and legal positivism.

According to the author, Holmes's “separation of law and morals in The Common Law” made him a legal positivist, who “views the law as it is rather than as how it ought to be.” He notes that Holmes believed that “legal rules are valid not because they are evoked in moral or natural law, but because they are enacted by a legitimate authority and are accepted by the society as such.”

In 1882, Holmes was appointed to the Massachusetts high court, where he served with distinction until 1902, when he was appointed to the Supreme Court. During his long Supreme Court tenure, Holmes developed a celebrated reputation for protecting free speech and supporting a legislature's authority to pass statutes that regulated business.

Holmes has been criticized, however, for being unsympathetic to the plights of African Americans. In Giles v. Harris (1903), Holmes wrote to uphold an Alabama voter registration system that excluded blacks. In Bailey v. Alabama (1911), Holmes dissented from the reversal of a harsh prison sentence imposed on a black defendant over a $4 labor dispute, arguing that the majority should have ignored the racial aspect of the case.

In Holmes's defense, the author writes that, when Holmes first joined the Supreme Court, he was inclined to defer to virtually every legislative act. He notes that, over the years, Holmes became less deferential, particularly in cases involving race, as shown in Nixon v. Herndon (1927), which invalidated a Texas primary election law that excluded blacks.

This defense seems flimsy in light of Buck v. Bell (1927), in which Holmes, a Social Darwinism devotee, wrote to uphold a Virginia sterilization statute targeting so-called “mental defectives.” The author's defense posits that Holmes should be judged in light of the standards of the 1920s, not today's. But this was no time for deference to the legislature. In the words of Holmes's successor, Benjamin Cardozo, the “final cause of law is the welfare of society.”