Talk:Oliver Wendell Holmes, Jr.

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Contents

[edit] Buck v. Bell

Is Buck v. Bell really an exception to his progressivism? Eugenics was, in the 1920s, seen as a progressive philosophy (its primary opponents at that point was organized religion at that), unifying science with policy and all of that. Anyway I won't change it but I'm not sure Buck v. Bell was an exception to progressivism in Holmes' day, though it clearly is to a modern (post-WWII) sense of the term. --Fastfission 16:12, 16 Sep 2004 (UTC)

You are correct; the discussion has been changed.

Is Darwinism really an accurate term to describe Holmes' judicial philosophy, or his opinion in Buck v. Bell? Social Darwinist, maybe, if someone can provide some sort of evidence to that point, but the Darwinism article linked to here mentions only biological evolution.

I think his argument was more economic, to wit: "sapping the strength of the state". Here's a more fuller quote:

We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange, indeed, if it could not call upon those who already sapped the strength of the state for these lesser scarifies in order to prevent our being swamped by incompetents. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent their propagation by medical means in the first place. Three generations of imbeciles are enough.

Rklawton 21:17, 16 January 2007 (UTC)

"Social darwinism" is probably the better term. Holmes was a follower of Malthus and Herbert Spencer, believed that evolution proceeded through competition of groups over scarce resources; so economic terms are used to describe evolutionary pressures, but Holmes was sympathetic to biological, eugenic measures like forced sterilization of criminals and "incompetents," to improve the competitive position of his "race," and even looked forward to the prospect of infanticide at birth. Not a happy story, in retrospect, but in line with Progressive thought of the day (although the notion of infanticide was extreme, at least in the United States). For Holmes's views, see his essays "The Path of the Law" and "Law in Science, Science in Law." The whole question of Holmes's social darwinist views is discussed in Alschuler, "Law Without Values," cited in the article.Sheldon Novick 18:59, 23 January 2007 (UTC)

[edit] Retirement or resignation?

On List of Justices of the Supreme Court of the United States, it says retirement. On this page, it only says "step down". Better do something about it. -- Toytoy July 2, 2005 03:34 (UTC)

[edit] Boston Brahmins?

This phrase is used in the 2nd paragraph. What does it mean? Was Holmes a Hindu?

No, Holmes was not Hindu. Brahmin is a reference to the elite of Boston society. In the interest of clarity over colloquialism, Wikipedia should probably not be using undefined metaphors. --Blainster 18:37, 3 October 2005 (UTC)
It's not really a metaphor but is a fairly well-established way of referring to Boston's WASP elite during the 19th and early to mid 20th centuries.
"Well-established" is relative. I understand that it is familiar to Bostonians, and have corrected my earlier statement that implied it was a novel use, but specialized terms in a general encyclopedia should be either defined or linked, so that confusion of the type above is not generated. --Blainster 21:21, 7 October 2005 (UTC)
funnily enough, his father coined the term. Or at least "New England Brahmin."

[edit] Literature

I added a references to Louis Menand's The Metaphysical Club: A Story of Ideas in America (2001), which devotes a lengthy chapter to Holmes and his background. There certainly is significantly more.

[edit] URL

The URL for this page unfortunately ends in a full-stop (period). Consequently, many mail agents misinterpret the full-stop as sentence punctuation, thereby truncating the URL to: http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr

But clicking on this link leads only to the polite wikipedia version of a "page not found". It is therefore quite difficult to include this link in an email. The only way I can see around that is to use the following form: http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr%2E

Suggestion: change the URL from: "http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr." to: "http://en.wikipedia.org/wiki/Oliver_Wendell_Holmes%2C_Jr" yoyo 15:33, 23 October 2006 (UTC)

Problem has been solved by creating redirect from truncated title (missing full stop) to the existing title. --Blainster 21:28, 31 October 2006 (UTC)

[edit] The most opinions?

Is there a source for the statement that Holmes wrote more opinions than any other justice or judge of courts of last resort? I'm skeptical that anyone has validated this, but it's important if true, so a reference would be good. Newyorkbrad 12:51, 31 October 2006 (UTC)

Um, statement made on my authority, based on work for forthcoming final volumes of Holmes's Collected Works. But you are right that hard to demonstrate, and anyway maybe not needed. I will delete. Sheldon Novick 15:38, 2 November 2006 (UTC)

I should have checked who added it; I would have trusted you implicitly. Does he hold the record for a U.S. Supreme Court Justice? That would be easy enough to verify (maybe it's in the Compendium). Regards, Newyorkbrad 17:19, 2 November 2006 (UTC)

Thanks for the vote of confidence, but I think you had a good point. Holmes was nowhere near a record number of opinions for US Supreme Court, easy to verify because all are in Lexis and Westlaw databases; his record, if it is one, rests on my own database of his Mass SJC opinions (commercial databases start at 1890 for state courts). I am reasonably confident of number of Holmes opinions - the problem is in knowing what other state court justices might have done. I was silently comparing with known claims, but it is not really possible to tell. And the number of Holmes opinions alone is not very interesting. So maybe best left off? I have had the thought for some time to make my database accessible online, but don't really have the knowledge or tools. But that would be the place to make the point, if it can be made. . . Anybody out there want to help turn an ancient WordPerfect CD into an online database? Sheldon Novick 13:35, 3 November 2006 (UTC)

[edit] A.D Club?

Does anyone know what this is, or why it is important to include in Holmes's undergraduate career? Sheldon Novick 13:38, 3 November 2006 (UTC) Oh, I see that it is one of the dining clubs. But Holmes was in Porcellian, not A.D. Sheldon Novick 12:59, 4 November 2006 (UTC)

There seems to be a friendly rivalry among these clubs, resulting in mini-vandalism here as different clubs try to "claim" Holmes (and probably other famous Harvard graduates) as an alum. Thanks for fixing; the article read "A.D." for awhile; someone changed it to "Fly Club" the other day.... Is the Porcellian the club that Learned Hand was blackballed from? Newyorkbrad 13:10, 4 November 2006 (UTC)

[edit] Date of Appointment

Gray resigned from Court in July, after long decline into illness; Holmes had already been chosen for seat and Roosevelt sent his name up promptly on Aug. 11. See Friedman and Israel, The Justices etc. vol 2, p. 1388, my Honorable Justice p. 236. Sheldon Novick 16:02, 29 November 2006 (UTC)

Thanks. The confusion arises from the fact that Gray's biography on the Federal Judicial Center site indicates that Gray served until his death on September 15, 2006, so that's what's used here in the Wikipedia Horace Gray article as well as in List of Justices of the Supreme Court of the United States. Newyorkbrad 16:08, 29 November 2006 (UTC)
This gets a little curiouser, as the front matter of volume 187 of the United States Reports, which one could think of as an authoritative source for this sort of thing, states that "Oliver Wendell Holmes, Associate Justice, appointed in place of Horace Gray, Associate Justice, who died September 15, 1902, took his seat December 8, 1902." (187 U.S. iii) The same volume contains an allotment of the Justices dated October 20, 1902, which does not include Justice Holmes, and then there is a subsequent allotment dated December 8, 1902, which includes the assignment of Justice Holmes to the First Circuit. This allotment was issued in view of "[t]here having been an associate justice of this court appointed since the commencement of this [October 1902] term]." (187 U.S. xxxiii) There is no indication that Holmes participated in any cases decided in October or November. Meanwhile, our list of Massachusetts Supreme Judicial Court#Notable members indicates that Holmes was a member of that Bench until December 8, 1902; of course, he could not have served on that Court and the United States Supreme Court simultaneously. All of this seems to suggest that if President Roosevelt intended a recess appointment of Holmes in August, it never came to fruition, despite discussion in several recent studies, partisan and non-partisan, of recess appointment authority to the contrary. When I have a chance I should check the Senate Executive Journal for further data there. Newyorkbrad 00:40, 5 December 2006 (UTC)
My apologies to all. I have not checked back to see who first said "recess appointment," but that was not correct. Roosevelt did announce Holmes's appointment on Aug. 11, during a recess, but it was not a recess appointment. It was not confirmed by the Senate until Dec. 4, because Sen. George Hoar wanted to show his displeasure. Holmes took the oath and took his seat on Monday, Dec. 8, 1902, and did not submit his resignation to the Mass SJC until then (a bit tacky, that). I don't know when Gray's resignation took effect,but possibly it was held until his death, for the sake of his widow. I am relying for all this on Holmes's papers, or rather my notes taken from them some years ago, but it squares with the chronology that Newyorkbrad has kindly compiled. Sheldon Novick 00:38, 7 December 2006 (UTC)
No one is to blame; a quick Google search on "Oliver Wendell Holmes recess appointment" produces lots of non-Wikipedia-derived sources making this claim. As indicated, I will check the Senate Executive Journal to see if I can turn up anything else. Newyorkbrad 00:48, 7 December 2006 (UTC)
It occurs to me, although it's speculative, that Holmes might have declined to accept a recess appointment because it would have entailed giving up his seat on the state court, and then if the Senate failed to confirm him, it would have left him without either position. Newyorkbrad 00:49, 7 December 2006 (UTC)

[edit] "Get down, you damned fool"

This story is a meme that I have deleted before. There is some authority for its truth. It has its origin in Lincoln's amused account to his secretary, John Hay, of an incident that occurred on July 11, 1864, when Lincoln visited Fort Stevens in a Maryland suburb of Washington and observed the preparations for Jubal Early's assault, when an unnamed soldier shouted at him. Holmes most likely did not arrive at the fort until July 12, when Lincoln returned with a large entourage to observe the battle. Sixty years later, when Holmes had become a famous man, the story was attached to him, and it was repeatedly published; Holmes himself then claimed it, although his biographers think he most likely was stretching the truth. See Mark DeWolfe Howe, Justice Oliver Wendell Holmes: The Shaping Years: 1841-1870. Harvard University Press, 1963, pp. 171-175; Sheldon M. Novick, Honorable Justice: The Life of Oliver Wendell Holmes. Boston: Houghton Mifflin, 1989, pp. 88, 422n. As the story is contested, and of no particular importance in Holmes's life, I think it best to omit. It might be added to the "quotations" list if someone thinks it worth the trouble; many of these are apocryphal. Sheldon Novick 14:15, 29 December 2006 (UTC)

[edit] Wasn't the "Clear and Present Danger" Test replaced by the "Imminent Lawless Action" Test?

From this article, under the Supreme Court section: "This remains the test applied by the Supreme Court in cases where an application of an otherwise valid law, is in question."

From the Brandenburg v. Ohio article: "The imminence element was a departure from earlier rulings. In Schenck v. United States, 249 U.S. 47 (1919), the Court had adopted a "clear and present danger" test that Whitney v. California had expanded to a bad tendency test: if speech has a "tendency" to cause sedition or lawlessness, it may constitutionally be prohibited. Dennis v. United States, a case dealing with prosecution of alleged Communists under the Smith Act for advocating the overthrow of the government, used the clear and present danger test while still upholding the defendants' convictions for acts that could not possibly have led to a speedy overthrow of the government. Brandenburg explicitly overruled the bad tendency test and made the time element of the clear and present danger test more defined and more rigorous."

I thought Brandenburg v. Ohio narrowed the "Clear and Present Danger" Test. --Db099221 12:40, 13 February 2007 (UTC)

So, doesn't Brandenburg v. Ohio "remain the test applied by the Supreme Court in cases where an application of an otherwise valid law, is in question"? --Db099221 12:42, 13 February 2007 (UTC)
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