93-09-28 New Biography of Oliver Wendell Holmes Jr. Shows Human Side of a Supreme Court Justice NEW BIOGRAPHY OF OLIVER WENDELL HOLMES JR. SHOWS HUMAN SIDE OF A SUPREME COURT JUSTICE CHARLOTTESVILLE, Va., Sept. 28 -- A new biography of U.S. Supreme Court Justice Oliver Wendell Holmes Jr. by a University of Virginia legal historian aims to shed light on the deep interconnections between a judge's private and public lives. The book, "Justice Oliver Wendell Holmes: Law and the Inner Self" by G. Edward White, to be published next month by Oxford University Press, reveals one of the most recognizable symbols of a judge in American history to be a complex and driven man, fiercely dedicated to his legal work while holding a highly romantic view of his own life. In attempting to penetrate "the human dimension" of a Supreme Court justice beyond the level of anecdote, gossip or dry chronology, White, a professor of law and history and author of a previous acclaimed study of Chief Justice Earl Warren's career, chose not only a towering figure in American law but a colorful one whose life and work have already been much written about. White's unique aim, however, is to show how the "life" and "work" of a judge are, as for everyone else, crucially linked, notwithstanding Holmes's effort to separate the two arenas. Tall, with piercing eyes, a shock of white hair and prominent moustache, Holmes sat on the U.S. Supreme Court for thirty years, retiring just before his 91st birthday in 1932. Before that he served on the Massachusetts Supreme Court for some 20 years and before that was an influential scholar and law professor at Harvard. Even if he had never been a judge, he would left a mark on the philosophy of law through his significant legal writing, which included a landmark book, "The Common Law." The son of a famous father, the poet and writer Oliver Wendell Holmes Sr., the younger Holmes too became known for his writing style. His writings are sprinkled with often-cited pithy sayings and aphorisms: "A word is the skin of a living thought," "Great cases like hard cases make bad law," and "The life of the law has not been logic but experience." He also became closely identified with two of the major themes in American legal history: he was both a strong advocate of constitutional protection for free speech and of judicial restraint, the idea that courts should leave the making of laws to legislatures. In his precedent-setting opinion that a "clear and present danger" is the only basis for curtailing the right of freedom of speech, he gave a now-famous example: "The most stringent protection of free speech would not protect a man falsely shouting fire in a theater and causing panic." His career is "a blueprint for judicial influence," says White, whose research has included close readings of Holmes's voluminous public and private writings. "One: serve a long time and consequently have an extended opportunity for handling important cases; two: have a memorable writing style, especially one that the lay public can grasp." Adding to Holmes's mystique was that he was a thrice-wounded survivor of the Civil War, intimately connected with both "Brahmin" Boston and English high society, was a sparkling conversationalist and was known in social circles as something of a "ladies' man." Late in his life, he was held in high esteem by much of the country; on his 90th birthday he was invited to give a nationwide radio address. White, who has written over a long period on aspects of Holmes's career, says he began eventually to feel that "there was no essential difference" between these other many sides of Holmes and Holmes "the great jurist," that they all had bearing on each other. Because judges, unlike other political figures, must appear detached and unemotional as part of their role, they rightly go to great lengths to keep their private lives to themselves, White points out. "But the more we can know about the human dimension, the more we know about their thinking as the political actors and human beings they also are," he says. For example, White makes clear how Holmes's desire to distinguish himself from his poet-father and from what he felt was the "soft" literary culture of his father's generation drove him to pursue legal scholarship of a particularly demanding kind. Yet Holmes incorporated a "poetic" approach to his intellectual work: In his brilliantly written opinions, "he typically left out many of the steps in his reasoning," White notes. Two other key elements of Holmes's life that were intertwined with his work were his driving ambition and a feeling he himself called "passion." He once famously said in a speech about his generation's Civil War experiences: "Through our great good fortune, in our youth our hearts were touched with fire. It was given to us to learn at the outset that life is a profound and passionate thing." And, to a more advanced age than any other Supreme Court justice in history, he tackled his work with a passion, dashing off opinions faster than his colleagues could keep up with. Yet he could also be cold and distant, isolated and deeply absorbed in his work. One of White's findings, revealing new information on an extramarital romantic relationship Holmes had in England, also sheds light on the connection between his private life and his work. The existence of the relationship, with a woman named Clare Castletown, has long been known; in letters and diaries, Holmes charges the affair with high romance, and he even sent Clare Castletown copies of his speeches. White, however, found letters between Castletown and another man with whom she was also having a relationship that make it clear she feels her unconsummated affair with Holmes is primarily a coquette's game. To Holmes, it was dashing adventure. For White, this "romantic" side of Holmes is "at odds with Holmes the thinker and philosopher, who is a skeptic who professes to believe life is hard and only to be endured," that individuals are at the mercy of great forces beyond their control. "His skepticism runs through his writings as a judge. His interpretation of the Constitution is that judges must defer to the legislatures, elected by the majority. He often sides with the state against the individual. Yet when it comes to his own life, the Castletown relationship shows that Holmes doesn't fully apply that world-view to himself," says White. His own life appears full of individualism and "passion" and is "touched with fire." "He was an extraordinarily complex person," says White. "He wanted to be on the Supreme Court and worked hard to get there. He says he's writing only for an educated elite, yet when newspapers criticize him, he says he's hurt. I don't think I admire Holmes in all respects, but I found him fascinating to be around." In the long hours of biographical research, "he was a pleasure to be with." Both the Book-of-the-Month Club and the History Book Club will feature White's biography of Holmes as alternate selections during the coming year. A lawyer and a historian, White has long been interested in how "the personal and intellectual dimensions" of historical figures fit together. After receiving a Ph.D. in American studies at Yale in 1967, he went to law school, receiving a degree at Harvard in 1970. He then served as a clerk with Chief Justice Warren before joining the U.Va. faculty in 1972. The two interests naturally merged in the field of legal history. At that time, "it was a field that historians found too technical and law professors not contemporary enough," he says, and he was happy to try to show its possibilities. He also found himself drawn to biographical approaches, and in addition to the award-winning book on Warren, most of his other widely respected studies of legal history, including "Patterns of American Legal Thought" and "The Marshall Court and Cultural Change," have had biographical elements. "I felt strongly when I began with legal history that I didn't want my work to be dry and tedious," he says. "I enjoy taking people and ideas and making them come to life. With Holmes, I found I could make him to come to life through his own words." And, he adds, because of their isolated, specialized role in society, "that's not always possible with judges." One of White's next projects, however, promises to be on something of a different order. A lifelong baseball fan, he is planning a book on the historical and cultural significance of some of the major changes that have affected the sport over the years. Part of the book will examine, of course, baseball's "peculiar legal history." ### September 27, 1993 [For review copies contact Oxford University Press at 212-679- 7300, ext. 7219. For interviews, G. Edward White may be reached at 804-924-3455] Karen Castle, Office Services Specialist, University News Office P.O. Box 9018, Booker House, Charlottesville, VA 22906 (804) 924-7116, kac@virginia.edu [Submitted by: Karen A. Castle (kac@uva.pcmail.virginia.edu) Tue, 28 Sep 93 11:47:34 EDT]