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Edward J. Holmes to Thomas Corcoran, letter, March 10, 1935, Box 144, Thomas G. Corcoran Papers, Manuscript Division.

Reading SCOTUS: Justice Oliver Wendell Holmes and his Black Book

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The following is a guest post by Ryan Reft, a historian of the modern United States focusing on domestic policy and law in the Manuscript Division at the Library of Congress. Ryan previously contributed four other posts to In Custodia Legis – The Federal Paper Chase: A New Library Guide for the Federal Courts; Federal Courts, Judge Gerhard Gesell, and the Security State; Simon Sobeloff and Jewish Baltimore; and  Rights and Resistance: Civil Liberties during World War I Scholarly Panel.

During a 1972 conversation, New Deal-era Washington insider and former legal secretary for Justice Oliver Wendell Holmes, Jr., Thomas G. Corcoran, and his interviewer reminisced about the former justice. One story in particular, regarding a fellow clerk, captured at once both Holmes’ personality and intellectual tendencies.

According to their discussion, “a young clerk” at the Supreme Court had taken a relatively “short opinion” by the justice and built it into a law article spanning over 100 pages. When the clerk presented the article to Holmes, he read it with “glowing pleasure,” the “kernel of an idea” grown into an expansive and innovative legal theory. Eager to gauge Holmes’ appraisal, the clerk leaned in and asked eagerly, “Mr. Justice is that what you meant when you wrote your opinion?” To which, Holmes replied “very heartily, ‘No, boy, but it’s certainly what I mean now.’” (Corcoran, p. 1.)

This anecdote exhibits the justice’s famed reputation for humor but also playfully references another aspect of Holmes’ personality, his tendency to downplay his intellectual influences. Biographer G. Edward White argued that Holmes often diminished others to assert his own originality, or what legal historian David Rabban describes as Holmes’ “ceaseless quest for professional recognition.” (Rabban, pp. 226, 250-251.) George Mason University law professor and legal historian Ross Davies adds in an email, “Holmes was raised in the midst of literary greatness – his father was one of the great essayists of the 19th century, and the family circle was a who’s who of his peers – and a combination of appreciation for their work and renown and ambition to match or exceed might go far to explain his seemingly limitless appetite for reading and writing.” (Davies in a letter to the author of this post, 2024.)

Oliver Wendell Holmes, Jr., planographic copy of The Black Book, pp. 16-17, 1936, Box 145, Thomas G. Corcoran Papers, Manuscript Division.

Yet, as Davies points out, we know what Holmes read mattered a great deal to him; so much so that from 1880 forward, the justice kept a list of all the books he read in what has become known as his Black Book, of which only a handful of copies of the volume’s planographic reprints remain in existence. One resides in the Library’s Rare Book and Manuscript Division, and another was recently discovered in the papers of Corcoran, who oversaw numerous aspects of the Holmes estate after the justice’s passing in 1935. The original Black Book belongs to Harvard.

With the centennial of Holmes’s death in under a year and the discovery of another Black Book reprint along with the acquisition of the John Lockwood Papers, a former clerk to Holmes, by the Manuscript Division, this moment offers an opportunity to trace the justice’s intellectual development and use of history in his work, particularly since Holmes remains arguably the most famous justice of the 20th century.

For Holmes, the Black Book was part of a larger ritual. When Holmes returned every fall to Washington, D.C., from summering at Berry Farm in Massachusetts, he would have his printed opinions from the previous term bound and placed on his bookshelf. “I never feel that the last term’s work is finished until I have solemnly deposited my little vol[ume] of decisions on the shelf by the side of others,” he wrote Leslie Scott one year. After which he then added everything he had read that summer to the Black Book, telling Scott “I don’t feel as if books had been read until they are entered on my permanent list.” (Budiansky, p. 334.)

Davies recently co-edited and contributed to The Black Book of Justice Holmes: Text, Transcript, and Commentary which transcribed Holmes’ notes while also providing analysis of them. Davies notes the book reveals how deeply Holmes engaged pre-modern and early common law, but that it also demonstrates that the “cosmopolitan” Holmes enjoyed a variety of subjects and genres. “Holmes … read widely, in and outside the law, and from the serious to the frivolous,” Davies points out. Agatha Christie, Willa Cather, Virginia Woolf, and Dashiell Hammett were just among a few novelists and mystery writers Holmes favored. “What should it be this time? Shall we improve our minds, or shall we have a little murder?” he would say to his legal secretary, Alger Hiss, on occasion. (Budiansky, p. 443.)

Co-editor, Michael H. Hoeflich agrees arguing that reading the Black Book is “like opening a window into Holmes’ scholarly soul.” It includes many of Holmes’ notes and memoranda from the 1870s that led directly to his incredibly influential work, The Common Law, in 1881. It is, as Hoeflich argues, “one of the few pieces of evidence we have of Holmes’ development as a scholar.” (Hoeflich, xix.) As such, the Black Book exists as both a metaphorical and literal embodiment of Holmes’ intellectual ferment. Each book consumed was “a forebear’s footprint examined, every judicial opinion was another of his own footprints pressed into the sands of time,” adds Davies. (Davies, p. xviii.)

While one might never divine all the reasons for Holmes’ intellectual habits, an example from the recently acquired John Lockwood Papers, provides insight into the issue. Lockwood, who later served as the chairman of the New York Public Library and director of the Lincoln Center, served as Holmes’ clerk for the 1928-1929 term, the same term in which Holmes’ wife, Fanny, died.

Oliver Wendell Holmes, Jr., planographic copy of The Black Book, pp. 70-71, 1936, Box 145, Thomas G. Corcoran Papers, Manuscript Division.

In a memorial to the justice, Lockwood drafted a lengthy account of his year with the justice. Of his wife’s ill health and eventual death, Lockwood noted Holmes said little.” “I remember that, during this time, I found myself rather running dry of conversation. The Olympian detachment which made him regard reading the newspaper as the equivalent of watching the minute hand of a watch go round and round made it rather difficult.” (Lockwood, John, p. 13.)

Despite the occasional conversational ravine, Lockwood offered perspective regarding the justice, perhaps most perceptibly in Holmes’ worldview. Lockwood recalled Holmes’ interpretation of both nature and art, which he believed informed Holmes’ use of history. In the former, it “was one tree or one flower, or one bush that pleased him generally, rather than a landscape as a whole.” In the latter, “it was a particular squiggle to which he drew attention most often rather than the picture as a whole,” wrote Lockwood. “The squiggle itself, I think, interested him for its place in the history of the art. His admiration was for the man who first invented that squiggle rather than for the later man who used it. This latter, of course, fits in perfectly to his broad sense of the historical process.” (Lockwood, p. 5.)

If Holmes was guilty of obscuring his influences, Lockwood’s anecdote makes logical sense. Holmes wanted to be the artist who invented the squiggle, not the artist who popularized it. History served as one of the central tools of this innovation. For Holmes, however, history more generally existed to “emancipate the present and future from the irrational constraints of the past.” History’s importance in this process was subordinate to legal analysis. (Post, Robert, p. 170.)

All writers, be they novelists or Supreme Court justices, are products of intellectual ferment; the works they choose to read or are engaged by shape their thoughts and by extension their work. During his over three decades on the Supreme Court, Justice Oliver Wendell Holmes, Jr., developed a jurisprudence that echoed across the 20th century. In contrast with the dominant thought of the day, Holmes believed the legislature to be the expression of the public. “It was through legislatures rather than courts, that divided and embattled societies expressed their conscious intentions,” writes legal historian, Robert C. Post. (Post, p. 170.)

Holmes did not only influence the future of the nation’s law with majority opinions, but also in dissent; what one might describe as akin to the legal “squiggles” noted by Lockwood that Holmes so respected and hoped to establish. “A dissent in a court of law resort is an appeal to the brooding spirit of the law, to the intelligence of a future day, when a later decision may possibly correct the error into which the dissenting judge believed the court to have been betrayed. Nor is this appeal always in vain,” Holmes once wrote. More than a few Holmes dissents became rhetorical classics that eventually shaped future law. (Budiansky, p. 347.)

Oliver Wendell Holmes, Jr., planographic copy of The Black Book, pp. 72-73, 1936, Box 145 Thomas G. Corcoran Papers, Manuscript Division.

Opinions by Holmes came quickly and were “plentiful, compact and beautifully written,” observes Post. (Post, 176.) Whether speaking for the majority or bucking it, Holmes worked remarkably fast, and even when in the minority, he made his mark. During the Taft Court, dissents were discouraged. Under Taft, conference cases between 1922 and 1928 were unanimous 86 percent of the time out of a total of 1,381. (Post, pp. xxxvi-xxxvii.)

On a court that viewed dissents pejoratively (Taft “hated” them, argues Post), Holmes’ dissents, along with his writing style (obviously derived in part from his broad reading habits embodied in the Black Book), rankled some of his fellow justices who critiqued his deployment of colloquial language, literary allusions, epigram, and innovations of common knowledge.” (Post, p. 610; Budiansky, p. 341.) The more conservative members of the Taft court dismissed Holmes’ fame as little more than the product of the enthusiastic support of law school professors and younger college professors. (Post, p. 173.) Justice Harlan Fiske Stone, who arrived at the court a Holmes skeptic and left it a Holmes enthusiast, simultaneously lamented and envied Holmes’ style. “The old man leaves out all the troublesome facts and ignores all the tough points that worried the lower courts …. I wish I could make my cases sound as easy as Holmes makes his,” Stone confided in his law secretary. (Budiansky, p. 341.)

The workings of Holmes’ mind, and the ideas that fed it, were of interest not only to academics and jurists but members of the justice’s family, who also sought a means to peer into his head. “Although a generation intervenes between us, I feel such sympathy that I hope you will forget the handicap of years and consider me a brother in affection for the Justice,” Holmes’ nephew, Edward, wrote to Corcoran following the justice’s passing. In his will, the late justice had bequeathed 100 books of Edward’s choosing from his library. “I want to choose the books that touched his mind and heart and I don’t think that anyone knows his mind and heart as you do,” Edward wrote. (Holmes, Edward J., 1935.)

What remained after his death could not be described as dead, at least not by Edward. “I cannot use the first tense for to those who love him he will always be a living fire.” Many of his opinions, especially his dissents, more than lived on, they thrived in later decades. In many ways, the Black Book is a burning ember of Holmes’ intellectual conflagration that ultimately lit 19th-century jurisprudence ablaze, clearing the proverbial legal landscape for a bold vision of 20th-century law.


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