"Oliver Wendell Holmes: A Life in War, Law and Ideas" by Stephen Budiansky.  Norton Press 2019, 592 pages, $29.95

Among the various theories of history and its interpretations, questions are often asked: Does one individual matter? Or, more aptly for the subject of this biography of Oliver Wendell Holmes: Does one person stand out as a paradigmatic representation of an institution? For the U.S. Supreme Court, among historians and cognoscenti of lawyers and judges, John Marshall rests on the highest pedestal. Marshal, as a member of the elite founders class, was even more importantly a foundational implementer and builder of the central role that the Supreme Court has played in the nation's governance. (see, "John Marshall, The Man Who Made the Supreme Court" [Richard Brookshier]; book review by Joseph W. Bellacosa, NYLJ, May 24, 2019, p. 6 col. 4).

Among ordinary folks with just a passing knowledge of history, however, Oliver Wendell Holmes (sometimes hereafter as OWH) may be the most notable name in a kind of celebrity recognition test. Sadly, in modern days, most people might not be able to name even one member of the 114 justices in the history of the Supreme Court, including any among the present membership. While Holmes' jurisprudential contributions are considerably less than Marshall's, history and celebrity are hard task masters on fleeting fame, even for those notables.

OWH in his nonagenarian span of life and long judicial career during the last half of the 19^th and first half of the 20^th centuries, became and has remained, a celebrity Justice before that word acquired its modern paparazzi pizzazz. While he had—and still has—many admirers approaching an apotheosis, he had the sine qua non of heroic flair and a je ne sais quoi, joie de vivre personality.

This biography by Stephen Budiansky captures the essence of OWH and does "justice" to the life and ideas of his model subject. The book frames his singular significance as a figure in the Supreme Court's history in an easy flowing, well-organized narrative, without the heaviness of a legal treatise or jurisprudential tome. More poignantly and thoroughly, the book recounts the story of the young man, a thrice-wounded Civil War veteran who then rose to national and juridical fame.

The biographer blends the formative war experience along with OWH's creative contributions to the development and administration of the law at the highest levels of state and nation to convey a mosaic fullness of the man and his career. Young Holmes was unceasingly and intellectually curious, Harvard educated and titled, and very industrious, too; socially engaging within his own higher classes and sought after in high-end societal and governmental assemblages in his own land and in London and Europe. He was a 19^th and 20^th centuries world-class traveler—an elite bon vivant type befitting the mores of his age.

OWH's foundational blueprint is of the quintessential Boston Brahmin purest blue blood heritage. He was the product of one of father-son competitive types in that his father was famous in his own right and era, and at times they suffered a strained or distanced relationship.

For better or worse in the eyes of history, OWH won that contest and eclipsed his father, Dr. OWH, the physician and writer, in the long view of lasting historical assessment. The short-lived flame-out of the father, and his "flippancy" about the son whom he referred to as "a second edition of your old acquaintance, o.w.h." is hilariously summed up in this sentence when OWH at age 40 was appointed to the Supreme Court of Judicature of Massachusetts: To think of it—my little boy a Judge—and able to send me to jail, if I don't behave myself."

Budiansky sets the stage the OWH life story well. Rather than evading the most dangerous service in a time of national peril, the young Harvard student found himself thrown into action of major Civil War major battles. He was motivated by a desire to save the Union and ultimately came around to an understanding and acceptance, like Lincoln, that the end of slavery had to be the twin engine driving that monumental threat to the nation.

Yet, he was a man of his age about class and many people that he viewed as his inferiors in service of his needs. Despite that—even in this day and age of retrospective historical revisitation with a narrowed eye of moral superiority and faux virtuous condemnation, OWH's reward and legacy as a heroic veteran might have brought him stand-alone fame, over and above his "Yankee from Olympus" prominence (the outstanding title adopted by Harriet Drinker in her popular earlier biography of OWH).

Importantly, OWH proved, however, that he could be the comrade in arms with ordinary camaraderie, without that attitude of superior class differentiation. They fought side by side and were killed and wounded in the same horrific blood lettings for the same causes, irrespective of his patrician upbringing and their common-ness. He was accepted and appreciated for the noble sacrifice he was making, partly because they knew he had refused to buy himself out of that hard crucible of service, as he and his father could easily have done.

By his later-distinguished service on the Supreme Judicial Court of Judicature of the Commonwealth of Massachusetts and ultimately at the pinnacle of the Supreme Court of the United States, OWH enlarged and secured his lasting public fame in a way that has set him apart and alone on the highest pedestal in unique historical recognition. Make no mistake, though, the Civil War constituted the transforming force and bedrock of his adult formation and of his attitudes and ideas about people, events and history. He came out of the war, having survived his serious, near-fatal, injuries with a firm conviction that fatalism and hardened realism rule human affairs.

That experience, deep classical reading and study, and a gifted philosophical intuition informed his break-away originality and reformative contributions to American law and its modern understanding and development in his uniquely important book "The Common Law." In some ways, it can be said that his book influenced, and is at least the companion, to "The Nature of The Judicial Process" authored by Justice Benjamin Nathan Cardozo written before he succeeded OWH on the Supreme Court. Their personal relationship is captured in a "treasured private letter" from OWH to BHC that answered the question of how to measure success in life: It is "the trembling hope of striving each day to achieve one's ideals, not the power, place, prominence or prestige one might attain," said the idealist, always nonetheless a tough extroverted realist, to his friend, another idealist, but with the soul of a gentle introverted realist, too!

OWH, however, carried himself with an imperious snobbery that held little regard for fools or for those he viewed as societal or intellectual inferiors. Budiansky is very blunt to balance his admiration for Holmes with a deserved criticism for that noblesse oblige character flaw. "[Holmes'] zeal to write into the law his draconian views about risk led him to render one of his most notoriously bad decisions on the Supreme Court just a few months after Buck v. Bell ['three generations of imbeciles are enough']. In Baltimore v Goodman, Holmes held that a railroad was not at fault in a fatal grade crossing accident [reflecting that he Holmes had never even learned to drive] and ruled as a matter of law that it was the driver's duty to stop, get out of his car, and look down the tracks to see if a train was coming." Ironically, his wrong-view standard was overruled by none other than Justice Cardozo in an opinion seven years later. [Pokora v. Wabash RR Co.]. Budiansky adds this lovely comment: Cardozo sounded "more like Holmes than Holmes on this occasion, emphasized that the law had to take account practical realities. *** 'To get out of a vehicle and reconnoitre is an uncommon precaution, as everyday experience informs us.'"

Another of OWH's vast array of famous friends was Judge Learned Hand of the Federal 2^nd Circuit Court of Appeals in New York. Hand had an epigrammatic exchange with OWH, mentioned in the biography, that epitomizes Holmes' down-to-earth practicality over pure idealism. When they parted one day at the steps of the Supreme Court after a lunch, Hand airily quipped "do justice," to which OWH crisply replied: "our job is to apply the rules!" (One can almost hear the echo to Chief Justice-Nominee, John Roberts' comment at his Senate confirmation hearing about the limits of judging power being like that of a baseball umpire, calling balls and strikes. ("Guardian of the Institution," New York State Bar Journal, Vol. 91 No. 9 p. 44 [December 2019]).

OWH's aristocratic air can be imagined from his customary formal attire including high hat, sweeping mustache, and that erect power-gait with an intimidating cane, striding with Brahmin and exceedingly overall handsome mien. The biographer nicely portrays OWH's more important intellectual complexity along with his human qualities and failings that, taken together nevertheless, continue to endear him to posterity because his North Star guiding principle was Excellence as a Judge and as a Person. That may explain in part why his legacy star still shines so brightly in the firmament of permanently lasting contributions to the history of the Nation's judicial story.

It was early 19^th cenury contemporary satirist, H L Mencken, who may have best summed up Holmes' deft avoidance, of being handcuffed to a judicial philosophy. Budiansky incorporates this perceptive assessment: "His decisions were difficult to reconcile with 'any plausible conception' of liberalism [because] My suspicion is that the hopeful Liberals, frantically eager to find at least one judge who was not violently and implacably against them, seized upon certain of Mr. Justice Holmes' opinions without examining the rest *** a sworn advocate of the rights of man. But all the while *** he was no more than an advocate of the rights of law-makers." [Emphasis added to Mencken's point of paradox.]

Harvard professor, later justice, Felix Frankfurter, one of OWH's renowned proteges (an unrenowned law clerk protege turned out to be the infamous Alger Hiss), tried unsuccessfully also to portray his mentor as a "liberal" proving once again how unhelpful such labels often are.

I urge people to read the whole of this fine biography for its nicely illustrated coverage of OWH's various and vast array of opinions on many issues of import, alive even today in the field of free expression and aliens, just as a couple of key subject areas. OWH's shift of positions on aliens and free speech is fairly and comprehensively laid out [(see, e. g., his differing, one might say maturing, evolving opinions, thanks in part to Hand and Harold Laski and Frankfurter,  in Patterson, Balzter,  Debs, Schenk, and finally the turnabout-in-attitude dissenting opinion  (with Brandeis, J. in Abrams; see also, his limited non-opinion point of view on the Sacco-Vanzetti case, largely drawn from his mentor-protégé relationship with Felix Frankfurter who was in the vanguard protesting the death penalty in that notorious case of the Roaring early Twenties). In sum, OWH's entire judicial treasure trove is rich and deep, and it offers a complex full picture, not some cookie-cut configuration – as is true, for most judges whose entire body of work usually contradicts the lazy type-castings, generated for media consumption by catchy sound bites.

One of his most enduring aphorisms about constitutional free speech, of course, is in Schenck, in which he declared "The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic." Budiansky notes that its "fame may have added more confusion than clarity" to the subject, proving that jurisprudence by aphorism may not be worth its salt. The renowned phrase is often coupled with the "clear and present danger" one, both of which are used as much as shields as swords by advocates on all sides and at both ends of the free speech ideological tug of war, even today, and yes without added clarity.

To close off this section of the book review, I must add a few words, however, about one of the illustrious jurist's most famous dissents in Lochner. There is some renewed debate on the purport of the precise breadth of legislative and judicial powers concerning burning public and social policy issues of any era. Budiansky smartly imports Posner's summation of the dissent as "a rhetorical masterpiece" "merely the greatest judicial opinion of the last hundred years," barely 600 words long and free of legal jargon.  The author then treats his readers with a quote of the essence of the dissent concerning OWH's view of the restraints on judging, with a pithy theme sentence: "General propositions do not decide concrete cases."

President Theodore Roosevelt was, at first, a button-busting proud nominator of OWH to the Supreme Court. Like many other presidents, he came to complain when his appointee exercised his oath to rule independently of the views of the appointing chief executive. Because of OWH's dissent in the famed Northern Securities monopolies case, Roosevelt was angered to declare, with his inimitable flair, that he could "carve out of a banana a justice with more backbone than that."

That reference reminded me in a special way for I once drew the assignment on the New York Court of Appeals to write an opinion that displeased the still-sitting governor who had appointed me. Matter of King vs. Cuomo ruled against executive authority vis-a- vis the legislature concerning an important practical and constitutional prerequisite in the law enactment process. Shortly after the decision was announced, I was present at a ceremonial function in the Red Room at the Capitol, presided over by Governor Mario M. Cuomo. He smiled and recognized the presence in the audience of a "Judge Independent" from across the street, dripping with smiling sarcasm, as he said it. We talked over that wise crack privately some days following the event just to clear the air about what should be expected of any Judge once the oath is undertaken.

A final anecdote from the biography also amused me about OWH from his service on the Massachusetts Supreme Court of Judicature. It echoed a venerable bit of New York Court of Appeals lore. In OWH's late 19^th century era, he was called upon to review some of his own lower court decisions, even "affirming" himself. He surely thought little of it or about some latter-day chagrin that might be bruited out concerning such an obvious conflict of interest. Indeed, twice he even "overruled" his own previous trial judgment, "apparently after being convinced by his brethren that he had failed to properly apply relevant precedent which showed a certain manful willingness to face up to mistakes."

A few decades earlier, in the mid 19^th century (1849), Judge Reid Brosnan in the very first opinion of the new Court of Appeals at 1 N Y 1 explained the justification for his fare-thee-well adjudication of his own earlier lower court rulings: "wise enough to know that he is fallible, and therefore ever ready to learn, great and honest enough to discard all mere pride of opinion and follow the truth wherever it may lead—and courageous enough to acknowledge his errors—he is then the very best man to sit in review of his own judgments. He will have the benefit of a double discussion. If right at first, he will be confirmed in his opinion, and if wrong, he will be quite as likely to find it out as anyone else." He then affirmed himself with the concurrence of the rest of the court.

(Can't lose, one might say, unless you happen to be the appellant, showing up in court to see the judge who ruled against you below sitting on the higher perch to rule next on your appeal!)

One of the most meaningful and endearing parts of the biography for me is the hard realist's blunt exposition of his beliefs and philosophy about life, fame and end-days, and the meaning and acceptance of ever-approaching death. Modestly and paradoxically, one might say about an impressively self-important gentleman of his age, OWH left behind a bequest that he could care less about his legacy. "Part of the greatness of life, I think, [said he in a private letter to a friend] consists of leaving it unadvertised." In a speech at Harvard in 1886, he further described the reward for a well-lived life is "the secret isolated joy of the thinker, who knows that, 100 years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought."

Biographer Budiansky nicely sums up the story of this extraordinary "Thinker-Doer-Jurist" as a man with a zest for life, service and ideas as follows: "the war *** has become both a metaphor and a lesson for life. 'Repose is not the destiny of man.' *** Life is a struggle, and it is the struggle that gives it meaning. The only thing to do was to give one's all, and leave the consequences to fate." He nicely segues a private letter to Barton Leach, in which OWH posed the rhetorical question: "Why should people be afraid to die?"  He then answers: "I'm not. I'll know the old fellow when he comes around and he'll know me because I've seen him before. I've seen the army doctor pass me by with a shake of the head as they looked over the wounded [OWH then described the valley of death he had trod, through memories of the battles at Ball's Bluff and Antietam]. The old fellow will look like an old friend when he finally does come around to take me."

Later for his 90th birthday, he participated as a listener on an early live radio broadcast, celebrating his life and accomplishments, at the end of which he uttered this magnificent poetic anticipatory peroration: (a recording exists preserving these words in his own voice):

"to express one's feelings as the end draws near is too intimate a task.

But I mention one thought that comes to me ***. The riders in a race do not stop short when they reach the goal. There is a little finishing canter before coming to a standstill. There is time to hear the kind voice of friends and to say to one's self: The work is done.

But just as one says that, the answer comes: The race is over, but the work is never done while power to work remains.

The canter that brings you to a standstill need not be only coming to rest. That is all there is in living.

And so, I end with a line from a Latin poet who uttered the message more than 1,500 years ago:

Death—death plucks my ear and says, "Live—I am coming.'" (Emphasis added)

The soaring beauty of these selective closing expressions is quite extraordinary. It resonates to St. Paul in his Second Letter to Timothy (Chapter 3, Verses 6-8): "For I am already being poured out like a libation and the time of my departure is at hand. I have competed well; I have finished the race; I have kept the faith. From now on the crown of righteousness awaits me, which the Lord, the just Judge, will award me."

As can be discerned finally from this review, I thoroughly enjoyed getting to know a lot more than I ever knew about Mr. Justice OWH, even though I had read the "Yankee from Olympus" biography in my youth. Budiansky's literate narrative portrait of Holmes' life, times, ideas and times is a wonderful glimpse into a different age and offers a clear-eyed, fair view looking back and then fast-forwarding into the present through one outstanding historical figure. OWH would surely be a delightful dinner companion if I could but channel him to get his views on the zeitgeist and state of the nation and Supreme Court today!

Joseph W. Bellacosa is a retired judge of the New York Court of Appeals and a retired dean and professor of law, St. John's University School of Law.