Beyond the Bench: Insights into the Oliver Wendell Holmes Devise

This post is by Aadi Miglani, an intern at the Library of Congress Publishing Office.

It is an unusual story. Upon his death in 1935, a retired Associate Justice of the Supreme Court left the bulk of his estate to the United States to benefit the public, the largest unrestricted gift to the country up to that time. His bequest, or devise, is used to launch an ambitious series of publications chronicling the Court’s history. The first volumes were published in 1971, and 53 years later, the series is going strong.

This is the story of the Oliver Wendell Holmes Devise History of the U.S. Supreme Court. The publication of the most recent volume, “The Taft Court: Making Law for a Divided Nation, 1921–1930” by Robert C. Post (Cambridge University Press in association with the Library of Congress) presents an opportunity to reflect on the origins and history of a bequest that left an indelible mark on the legal and publishing sectors.

At the time of his death in 1935, Holmes’ will stipulated that $263,000 (a little less than $6 million in today’s dollars) would go to the federal government. This property included the copyrights to his written works, essays, and letters, and his bequest granted the U.S. government the authority to control and manage these copyrights. By placing the copyrights under government control, Holmes ensured that his intellectual legacy would be accessible to the public, fostering a spirit of knowledge dissemination and emphasizing his push for readily accessible government materials.

President Franklin D. Roosevelt suggested that the gift be set aside in a special fund and a small committee—Justices Harlan Fiske Stone and Felix Frankfurter and Holmes’s former clerk, Alger Hiss—convened to determine the best way to distribute the funds. In 1938, Congress established a nine-person Oliver Wendell Holmes Devise Committee with representatives from the United States House of Representatives, the United States Senate, and the United States Supreme Court.

The Committee recommended using the funds to build a memorial garden near the Supreme Court building and to publish a memorial volume with the assistance of the Library of Congress. However, official plans were delayed by World War II, labor and supply shortages, and increased costs for land and printing. The money remained in a non-interest-bearing account at the Treasury for twenty years. In 1955, Congress augmented the initial bequest and created the Permanent Committee for the Oliver Wendell Holmes Devise to oversee the creation of a history of the court. (Official History: The Holmes Devise History of the Supreme Court, page 299).

Professor Paul A. Freund of Harvard Law School was selected as editor of the project, and seven scholars were appointed to prepare 11 volumes on the history of the Supreme Court through 1941.

In a May 3, 1983, New York Times article, Freund articulated a clear vision for the series. The Holmes Devise project would not solely summarize and revisit the most famous law cases, it would deliver “history in the broad sense­—dealing with the impact of the world upon the Supreme Court and the impact of the Court on the world.” Freund was focused on giving the series a fully rounded perspective, expressing the rich history of the Supreme Court, the external pressures placed on it, and the long-lasting and evolving legacy of the Court on the United States as a country.

While the original intention was to have 11 volumes published within 10 years, progress was hampered by a variety of factors. Stanley N. Katz joined Freund as co-editor in 1978, and he took the reins as general editor in 1990. By 1993, the first nine volumes, through the chief justiceship of Edward Douglass White, had been published by MacMillan, but the publisher declined to take on future volumes.

While some of the volumes have been published out of order, Cambridge University Press resumed the series with the 2006 publication of Volume 12 and subsequently reissued the earlier volumes. Constitutional scholar Maeva Marcus was appointed as series editor in 2015, and Volume 11, titled “The Hughes Court,” was published in 2022. Written by Mark V. Tushnet of Harvard Law School, “The Hughes Court” explores the points of view and talents of the justices and how progressivism took center stage during the 1930s. Georgetown University’s Daniel R. Ernst praised the work, writing, “no one understands the politics of law better or takes the law more seriously than Mark Tushnet.”

Publication of “The Taft Court”—which recounts the court’s efforts to create a modern American administrative state out of the institutional innovations of World War I—has also been met with considerable critical acclaim, including an extensive review in the New Yorker. Anthony Kronman of Yale Law School called it a “work for the ages,” emphasizing the positive impact that such a long-spanning historical project can have on the public. The volume focuses on how the Taft Court established authoritative forms of constitutional interpretation despite the culture wars that permeated the decade of prohibition and labor unrest.

While 89 years have passed since Holmes made his historic bequest, Marcus and members of the Permanent Committee continue to look to the future.

“With twelve volumes of the OWH Devise History published and a thirteenth on the Warren Court in the works, the Devise’s Permanent Committee looks forward to future studies of the Burger and Rehnquist Courts and those that follow,” she said. “The pervasive influence of the Supreme Court’s jurisprudence on American life and culture calls for the continued examination of the Court as history unfolds.” (Maeva Marcus, general editor of the Oliver Wendell Holmes Devise History of the Supreme Court of the United States. Email on file with author.)

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