Judging Holmes.(Review)

Law Without Values: The Life, Work, and Legacy of Justice Holmes, by Albert W. Alschuler (Chicago, 325 pp., $30)

Oliver Wendell Holmes Jr., the author informs us at the beginning of his book, "is the only justice of the Supreme Court to have been the subject of a bestselling historical novel, a hit Broadway play, and a motion picture. A mountain in Alaska bears his name, and when letters could be mailed for 15 cents, he peered from their corners on purple postage stamps."

Holmes seems to have known everyone in the course of his 94 years. His father was a poet and founder of The Atlantic Monthly; Emerson, Hawthorne, and Melville were part of Holmes Sr.'s circle. The younger Holmes's claim to have shouted "Get down, you damn fool!" at Abraham Lincoln during a Civil War battle may have been false, but he was certainly on the same battlefield. He knew both Jameses, and both Roosevelts. One of his last clerks on the Court-Holmes served from 1902 to 1932-was Alger Hiss.

It is difficult to overstate Justice Holmes's place in the pantheon of American law. He is widely held to have brought American legal thought into the modern age by subjecting it to his skepticism. Left and Right unite in praising Holmes. Since the '20s, liberals have idolized him for his decisions protecting freedom of speech and permitting social- welfare legislation. Contemporary conservatives have tended to claim Holmes as an exemplar of "judicial restraint," since he was willing to uphold the constitutionality of social-welfare legislation he disliked. (He was fond of saying that "if my fellow citizens want to go to hell, I will help them. It's my job.")

Yet there has long been an undercurrent of skepticism about the grand old skeptic himself. Two authorized biographers of Holmes were unable to produce books because of the distaste they acquired for their subject. One of these, Grant Gilmore, summed up ten years of research thus in a lecture at Yale: "The real Holmes was savage, harsh, and cruel, a bitter and lifelong pessimist who saw in the course of human life nothing but a continuing struggle in which the rich and powerful impose their will on the poor and weak."

Gilmore's view is shared by Albert W. Alschuler-with the added indictment that Holmes at best looked on that struggle with detachment, and at worst rooted for the powerful. Law Without Values frankly aims to knock Holmes off his pedestal.

Alschuler argues, as others have, that the horrors of the Civil War killed Holmes's idealism. Holmes was an ardent abolitionist when, at age 20, he volunteered for the war. Three months after he enlisted, he almost died of a serious chest wound at Ball's Bluff. He would be shot through the neck at Antietam, and wounded again at Chancellorsville. He suffered scurvy and dysentery, saw dead men piled up six deep in trenches, learned about army mismanagement. His commitment to abolitionism flagged. Later in life, he would often express disdain for all -isms, abolitionism very much included, and the sort of passionate commitment they inspire.