Susan-Mary Grant, Oliver Wendell Holmes, Jr.: Civil War Soldier, Supreme Court Justice

Spoiler alert, as they say these days. Or, more accurately, I must start with a disclaimer: this biography of Oliver Wendell Holmes, Jr. was not written with legal scholars as its intended audience. In the course of writing, I certainly had the voluminous legal scholarship on Holmes very much on my mind, but my interest in Holmes derives from a very different direction. This biography, part of a series designed, in part, to “show the impact everyday people can have on the course of history,” was actually written to try to assess what impact the course of history might have on an everyday individual.owh

One might well argue, of course, that Oliver Wendell Holmes, Jr. was anything but an everyday individual. A scion of New England’s intellectual elite, and a Civil War veteran—Holmes fought with the Twentieth Massachusetts—his post-war career in the law took him all the way to the Supreme Court in 1902, where he remained for the next three decades. He was over ninety when he finally retired, and his ninetieth birthday in 1931 was marked by a coast-to-coast radio broadcast, a technological marvel unimaginable in 1841, the year of Holmes’ birth, when the nation’s first telegraph message was still three years away. In further honor of his birthday, a valley in the Central Brooks Range in Alaska was named for him by explorer Robert Marshall. Holmes remains, to this day, perhaps the best-known justice to have served on the Supreme Court. Portrayed on stage, film and fiction, and on a stamp, no fewer than three substantial biographies and countless shorter studies have been produced that explore the life and legacy of a man born into a world where slavery was still legal, who was driven by abolitionist sentiment to fight for the Union in 1861, but who, when he finally ascended to the Supreme Court, did little to protect those rights that he had, four decades before, struggled to secure.

For an historian of the Civil War era, it is precisely this apparent volte face that is of interest. Holmes the Supreme Court Justice may have seemed a different man from Holmes the Civil War soldier; but the differences were more apparent than real. Indeed, they go to the heart of the difficulties that scholars still have with the American Civil War as they strive to compose a narrative that emphasizes emancipation, yet must also contain that conflict’s less uplifting elements: its staggeringly high rates of death and disease, its soldiers’ sometimes sharp disenchantment with the cause of Union, and their abandonment, over the decades after 1865, of many of the most idealistic components of the cause they had risked their lives for.

Frequently conceptualized in purely personal terms, post-war traumas—however one chooses to define these—had political repercussions for the American nation. And its legal landscape, inevitably, bore the scars of wounds sustained at Fredericksburg and Chancellorsville, Antietam and Gettysburg; wounds that the three post-war Constitutional Amendments—the “Reconstruction Amendments”—could not suture. Indeed, by upholding the “separate but equal” doctrine in race relations, the Supreme Court confirmed rather than corrected many of the most fundamental divisions at the heart of the nation.

Holmes’ apparently personal retreat from Reconstruction in civil rights cases such as Giles v. Harris (1903) or Bailey v. Alabama (1911) was, however, revealing as far as his personal philosophy was concerned. For him, life itself was an ongoing battle; the role of law was simply to level the field. Holmes had no faith in the idea of “natural law,” far less natural rights. For him, the law was not just man-made, but relied on men (and women) to implement it. A legal ruling, in and of itself, was unlikely to achieve grass-roots change. This was, for him, as true in 1903 as it had been four decades earlier, when the Emancipation Proclamation announced a new direction of travel for the nation. As a Union soldier, Holmes had charged his parents with failing to grasp either “the unity or determination of the South.” As a Supreme Court Justice, he understood “that the great mass of the white population [of the South] intends to keep the blacks from voting.” In both cases, he floundered in the face of white Southern intransigence, falling back on what he understood to be his duty but never going beyond that.

Protected, as many have accused him of being, by the psychological parameters imposed both by class and by conscience, Holmes was in some ways the Janus-face of the early twentieth-century Supreme Court; conditioned by an elitist antebellum upbringing, he was in some ways ill-suited to meet the challenges of a modernizing nation. In other respects, the Civil War had inculcated in him an appreciation of the modernist mentality, an admiration for those better suited, temperamentally, to the competitive commercial world of the later nineteenth and early twentieth centuries.

For some scholars, the origins of this aspect to Holmes’ personality, and the explanation for some of his harshest rulings, and dissents, as a Supreme Court Justice, can be traced to the Civil War, to a war-born cynicism that coarsened as it aged; and culminated in what remains possibly Holmes’ most contentious ruling in Buck v. Bell (1927). To locate the older justice in the youthful soldier in this way, however, is, I think, possibly an error; an excuse, rather than an explanation, for the perceived shortcomings of a man to whom so much had been given and of whom, consequently, so much was expected. That there was a cynical strain in his personality is without doubt; but it lay in him, and not in what he had experienced during the war. Ever the man of thought—he maintained a voluminous reading regime throughout his life—he had longed to be the man of action; yet on the Supreme Court he failed fully to seize the opportunity to act, in defense of civil rights or civil liberties, in ways that would have made a difference.

In some respects, therefore, this book is a form of backstory to Holmes the Supreme Court Justice. Growing out of a much larger project that tracks Civil War veterans throughout their lives, my fascination with Holmes derived from the fact that, put simply, he kept cropping up in my writing and teaching. In common with many Civil War historians, I frequently quoted and directed my students to Holmes’ famous Memorial Day speech of 1884, in which he told his audience of Union veterans that “in our youth our hearts were touched with fire.” But I gradually became aware that I was taking this pithy and emotive soundbite out of context; linking it neither to the Union soldier Holmes had actually been, nor to the Supreme Court Justice he became, far less to the chilling ruling of Buck v. Bell (1927). So this book is an attempt to get closer to the heart of one Civil War soldier, and one Union veteran, whose impact on his nation was profound but never, perhaps, all he had hoped it would be. It is, in effect, a window onto the fast-changing world of the Civil War generation, a world that fascinates me and that I wish to explore further. That is why I wrote this book.