Justice Oliver Wendell Holmes, Jr.

Justice Oliver Wendell Holmes, Jr. joined the U.S. Supreme Court on December 8, 1902, replacing Justice Horace Gray. Holmes was born on March 8, 1841 in Boston, Massachusetts. His father was a famous doctor and writer who exposed Holmes to the brilliant minds in the Boston area at an early age. Holmes graduated from Harvard in 1861 as the Civil War was beginning. He served in the Union Army during the war and fought in several of its bloodiest battles. Holmes was wounded in the chest, the neck, and the heel during his service.

Leaving the army in 1864, Holmes enrolled at Harvard Law School. He received his law degree two years later and was admitted to the Massachusetts bar in 1867. Holmes spent the early stages of his career in private practice, while lecturing at Harvard. In 1882, he was appointed a professor of law at Harvard, but he did not stay in that position for long. At the end of that year, Holmes joined the Supreme Judicial Court of Massachusetts. He became Chief Justice of that court in August 1899 and would serve in that capacity for the next three years.

On December 2, 1902, President Theodore Roosevelt nominated Holmes to the U.S. Supreme Court. The Senate confirmed him on December 4, and he took the judicial oath four days later. Holmes would serve on the Court for nearly three decades, voicing his views confidently and succinctly on topics from taxes and pollution to music and baseball.

In the aftermath of the First World War, Holmes penned several opinions that shaped the evolution of free speech doctrine. Writing for the Court in Schenck v. U.S., he outlined a "clear and present danger" test for the boundaries of First Amendment protection. Holmes noted that "[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic." In a dissent in Abrams v. U.S., meanwhile, Holmes observed that "the best test of truth is the power of the thought to get itself accepted in the competition of the market." This theory of the "marketplace of ideas" persists today as a justification for freedom of expression, although the Court left behind the "clear and present danger" test in the late 1960s.

Holmes also dissented in Lochner v. New York, the most famous of several decisions in which the Court relied on substantive due process to strike down economic regulations. He wrote that "a constitution is not intended to embody a particular economic theory" and urged greater deference to legislatures in this area. The Court eventually would embrace his view.

Holmes is rightly admired for his contributions to many fields of law, but he wrote one notable opinion that most modern readers would not applaud. In Buck v. Bell, he upheld a Virginia law that provided for the compulsory sterilization of inmates of state institutions found to have hereditary insanity or imbecility. Holmes bluntly summed up his view by proclaiming "three generations of imbeciles are enough."

Holmes left the Supreme Court on January 12, 1932 at the age of 90. He remains the oldest Justice in Supreme Court history. Justice Benjamin Cardozo replaced him on the Court. Holmes died on March 6, 1935 in Washington, D.C. and was buried in Arlington National Cemetery.

Selected Opinions by Justice Holmes:

U.S. v. Kirby Lumber Co. (1931)

Topic: Taxes

When a corporation purchased and retired some of its own bonds for less than their par value, which it had received for them when issued, the difference was a taxable gain or income.

Lucas v. Earl (1930)

Topic: Taxes

The tax law can tax salaries to those who earned them and provide that the tax cannot be escaped by anticipatory arrangements and contracts, however skillfully devised, to prevent the salary when paid from vesting even for a second in the person who earned it.

Buck v. Bell (1927)

Topic: Due Process

A state may provide for the sexual sterilization of inmates of institutions supported by the state who are found to be afflicted with a hereditary form of insanity or imbecility.

Prestonettes, Inc. v. Coty (1924)

Topic: Trademarks

The ownership of a registered trademark consisting of a name designating the owner's goods generally does not carry with it a right to prohibit a purchaser who repacks and sells them (with or without added ingredients) from using the name on their own labels to show the true relation of the trademarked product to the article that they offer.

Moore v. Dempsey (1923)

Topic: Due Process; Criminal Trials & Prosecutions

A trial for murder in a state court in which the accused are hurried to conviction under mob domination without regard for their rights is without due process and void.

Pennsylvania Coal Co. v. Mahon (1922)

Topic: Property Rights & Land Use

If regulation goes too far, it will be recognized as a taking for which compensation must be paid.

Federal Baseball Club of Baltimore, Inc. v. National League of Professional Baseball Clubs (1922)

Topic: Antitrust

The business of providing public baseball games for profit between clubs of professional baseball players is not within the scope of the federal antitrust laws.

Missouri v. Holland (1920)

Topic: Powers of Congress

Treaties made under the authority of the United States, along with the Constitution and laws of the United States made in pursuance thereof, are the supreme law of the land.

Abrams v. U.S. (Holmes dissent) (1919)

Topic: Free Speech

It is only the present danger of immediate evil or an intent to bring it about that warrants Congress in setting a limit to the expression of opinion when private rights are not concerned.

Schenck v. U.S. (1919)

Topic: Free Speech

Words that, ordinarily and in many places, would be within the freedom of speech protected by the First Amendment may become subject to prohibition when of such a nature and used in such circumstances as to create a clear and present danger that they will bring about the substantive evils that Congress has a right to prevent.

Debs v. U.S. (1919)

Topic: Free Speech

The delivery of a speech in such word and such circumstances that the probable effect will be to prevent recruiting, and with that intent, is not protected because of the fact that the purpose to oppose the war and obstruct recruiting, and the expressions used in that regard, were but incidental parts of a general propaganda of socialism and expressions of a general and conscientious belief.

Frohwerk v. U.S. (1919)

Topic: Free Speech

The First Amendment, while prohibiting legislation against free speech as such, was not intended to give immunity to every possible use of language.

Herbert v. Shanley Co. (1917)

Topic: Copyrights

The performance of a copyrighted musical composition in a restaurant or hotel without charge for admission to hear it but as an incident of other entertainment for which the public pays infringes the public performance right.

Bi-Metallic Investment Co. v. State Board of Equalization of Colorado (1915)

Topic: Government Agencies

When a rule of conduct applies to more than a few people, it is impracticable that everyone should have a direct voice in its adoption. Thus, an order of the state board of equalization increasing the valuation of taxable property in a city did not violate due process just because no opportunity was given to the taxpayers of the city to be heard before the order was made.

Bugajewitz v. Adams (1913)

Topic: Immigration & National Security

Deportation is not a punishment but instead a refusal by the government to harbor persons whom it does not want. The constitutional prohibition on ex post facto laws has no application to deportation.

Georgia v. Tennessee Copper Co. (1907)

Topic: Climate Change & Environment

In its capacity of quasi-sovereign, the state has an interest in all the earth and air within its domain, independent of the titles of its citizens. It is fair and reasonable for a state to demand that the air over its territory should not be polluted on a great scale, and that its forests, crops, and orchards should not be destroyed or threatened by the acts of parties beyond its control.

Missouri v. Illinois (1906)

Topic: Role of Courts; Climate Change & Environment

The Supreme Court should only intervene to enjoin the action of one state at the demand of another state when the case is of serious magnitude, clearly and fully proved. Only such principles should be applied as the Court is prepared to maintain. (This case involved sewage-polluted water.)

Swift & Co. v. U.S. (1905)

Topic: Antitrust

Even if the separate elements of a scheme are lawful, when they are bound together by a common intent as parts of an unlawful scheme to monopolize interstate commerce, the plan may make the parts unlawful.

Bleistein v. Donaldson Lithographing Co. (1903)

Topic: Copyrights

The least pretentious picture has more originality in it than directories, which may be copyrighted.