Transcripts For CSPAN2 Stephen Budiansky Oliver Wendell Holmes 20240714

Of events like this all throughout the year and one such event we are doing this coming wednesday june 5 David Epstein for his new book triumph and a specialized world before we start if you could turn off or silence your cell phone we would appreciate it. Please step up to the microphone here before asking your questions or we can no we cannor and enjoy the conversation but make sure that its going to be recorded there are copies right behind the Cash Register sound front. Last, please keep your chairs where they are because we are going to have another events after this one. Now the reason we are all here im here to introduce stephen to all of you. He is a historian and biographer and writer whos appeared in many publications including the atlantic hes the author of 17 books including his last one before this code breakers into the secret intelligence war against the soviet union Oliver Wendell holmes a life in order and ideas. In the book she tells the story of one of the most Influential Supreme Court justices in American History in the american jurisprudence purpose review calls the topnotch turning the influential judges likened to a page turner seems a highly difficult task but he succeeds admirably everyone let us welcome stephen. [applause] thank you very much. Its very nice to be back here at politics and prose bookstore in washington, d. C. Can you hear me now is the microphone on . How about now. Its very nice to be back here at politics and prose bookstore in washington, d. C. We keep reading predictions about how the Publishing Industry is going down the tubes and independent bookstores are doomed, but no one seems to have told politics and prose which goes from strength to strength and offers love coming here because there is always an audience of engaged interested readers so thank you to politics and prose for helping to keep her alive. Its always daunting to reach this point in the process of writing the book when you have to somehow distilled years of work into a speech and its particularly difficult in the case of a subject like the life of oliver llima holmes junior in part because he lived so damn long. He was buried at Arlington Cemetery in march, 1935 on the day that would have been his 94th birthday. Thats not only that, he did enough in his almost 94 years to fill four or five peoples lives. A young Union Officer in the civil war right out of harvard, he saw almost every major battle the army of the potomac fought in the first three years of the war. He was wounded seriously three times and twice nearly fatally. As a pioneering legal scholar, he wrote still considered one of the most important and significant books in the history of legal scholarship that common law and it was only a milestone in legal scholarship, but he was one of the most important intellectual achievement in any field by an american in the 19th century. It really helped american scholarship on the map and earned a Great Respect of the british scholars who said america is beginning to surpass britain. And the notion of using objective standards of behavior rather than subjective judgment for criminal cases and court cases. The charge to juries that is absolutely standard today where jurors are told you are not to consider motivation and intent but only if the defendant behaved the way a reasonable man would under these circumstances. That comes directly from homes important decisions that he helped to advance as the massachusetts Supreme Court justice. At age 61 when most normal people are thinking about retiring, he was appointed to the United States Supreme Court by roosevelt where he served for nearly 30 years writing a series of famous and usually dissenting opinions that were later recognized by the full court having the better of the argument to secure freedom of speech, the rights of criminal defendants to manifest those injustices and ending decades of reactionary opposition on the court to opposition regulating the rights of workers , consumers and the economy. And if that were not enough , he deserves to be recognized as one of Great America literary figure from the letters that he wrote. There is an estimated 10000 personal letters of his in the Harvard Law School archives and every one of them is a gem. He writes about his philosophical thoughts, friendship, aging, deh , he writes with very raw humor and wit about the folly of mankind in the writes about Washington Society and washington personalities in the books he is reading and the original reactions to them. Keeping up friendships over decades and distance that constantly writing these marvelous letters his friends treasured he asked many of them to burn his letters and none of them did thank goodness. He would rarely let a day go by without answering a letter from a friend. Even while serving on the massachusetts a prank or in the us Supreme Court. Several of his letters went on the Massachusetts Court in particular he would complain you could tell in a minute where a lawyer is going that he will go on for another 15 or 20 and would use the time to write letters to his friends while sitting on the bench his irish friend and he said im now listening to an argument to determine who will be the mayor and a distraction when one is trying to write to a lady. [laughter] they are Literary Masterpieces in their own right. I thought i would read to you a portion of my prologue where i really tried to lay out why i find him such a fascinating figure and of enduring importance. As he approaches 75th year in the winter of 1916, justice Oliver Wendell holmes was almost as unrecognizable as those wondering the capital as the Washington Monument or the smithsonian institution. Every afternoon when the court was in session the justice would walk back from the capital from his brownstone just west of the white house. Impeccably dressed in the manner of the perfect gentleman he was a commanding figure as he walked his daily 2 miles home walking a rack like the soldier he was like a calvary kernel always turned out in formal top out top hat with a collar and a topcoat in his trousers with his best shops in london. He reported so far he escaped being referred to as the venerable jurist which is the sacramental phrase. He was one of those men who would grow more handsome with age with a full white head of hair and blue eyes that show his intensity and the beautiful baritone voice and the accent that ordinary americans would become familiar with from fdr fireside chat. Certainly no signs of him slowing down. Feeling as i did 50 years ago except i am much happier he told the american diplomat Louis Einstein one of his considerably younger friends. He bounded up the stairs to his study to at a time and begin each day with a bracing cold bath the practice he carried on through age 88 when he finally gave it up for a warmer bath at that time. With the mental and physical vigor in the extraordinary embodiment and as a Union Officer in the civil war he barely escaped death at antietam when musket balls tore through his chest and neck meese missing his heart and his spine and carotid artery. Pnc lincoln dodge enemy fire in the raid on washington as a boy he knew Ralph Waldo Emerson is a family friend and remember a summer neighbor as a gruff and taciturn man traveling europe after the war and the father of Virginia Woolf and then became friends with henry james and brother william to become respectfully the novelist and philosopher of their generation to homes they were hairy and bill. Also meeting John Stuart Mill churchill and washington Bertram Russell would stop by more than once youre taught philosophy a quiz show in the sixties pose the question which american met during his lifetime both John Quincy Adams and alger his . Of course it was homes who had met six president s of the United States and another family friend when he was five years old and when to employ the future soviet spy as the favorite law secretary in 1929 but the civil war was the touchstone. I hate to read about those days he told friends and had no interest in any more squalid preliminaries with the works of battles. When a cousin sent him the biography of lincoln he felt compelled to tackle about halfway through confessed i should praise god if i finish the book or somebody stole it. He was keenly aware of the wars meaning for him with that terrible experience of youth that had shaped his life fort stevens was always part of the program for outoftown visitors he marked each anniversary of his brush with death while drinking to the living and the dead and never fails well writing oletter postcard to know the occasion the anniversary of antietam where 19 oh eight that equals 46 years ago i was shot to the neck. If the war destroyed forever the idealism and optimism of the world of his boyhood the naive unitarian faith and moral virtue guided only by education and rationality substituted the practical courage of everyday life. The men soaked in the sea of death somehow had survived had got something from it that transfigured their world he said at a speech to the veterans of the Old Army Corps year he arrived in washington to take his place. They know the passion and irony of life. They have no allusion the role she has played to determine who lived and who did not it almost humiliates me to think of my lucky remarked years later but felt his fortune in merging with skin intact but having had the chance to learn at an early age that for most things in this world that will vanish when you walk up to tackle them and it comes off when the donkey is underneath. Or as he summarizes his philosophy of life and work approaching the 90th year, a man should be an enthusiast in the head and the skeptic in the back to do his damnedest without believing the collapse if he failed that should be the same courage for failure that many had for death. If all else fails one could still be a good soldier he thought it was simple bad form to parade the fears or to drum on the void intellectual friends adams. Do your damnedest its the only solution. The only way to real happiness also more likely to do some more good than those altruistic ends and in washington he ran his life with military promptitude with breakfast every day at 9 30 a. M. Alger kiss was a standard holmes morning meal with coffee and a whole orange with the justice would always try to peel than a single continuous piece a large bowl of porridge with cream s poached egg a slice of toast with anchovy paste enough to take the head off in ordinary person kiss said later he was described as one writer as morose and fundamentally unhappy but he dismissed that idea out of hand nobody could possibly be unhappy could dispatch breakfast like that with such gusto. At precisely 1125 he would prepare to leave for court he was helped on with his shoes and housecoat in sukkoth and his docket handed over a few minute lastminute words from his life his wife on the way out the door. Down the steps where his driver waited at the curb for the horse and buggy return at five dinner at 730 work until mind then downstairs to play solitaire. Midnight to bed and lights out at one. They schedule their return from their summer home at the last possible moment before the start of the courts term on the first monday of october the usually took the overnight train in washington his new secretary selected each year from the graduating class from Harvard Law School was to show up on friday at 11 00 a. M. And anxious young man arrives only to discover the judge meant to be taken literally. He would forever remember his introduction to the wellregulated household. I got to the house about 1030 and decided i was too early squirmed for 15 minutes on a bench at the quarter one corner of connecticut street rang the bell found out i was still too early and that would be received until precisely 11. On a walk through the neighborhood the justice shared his glee to point out the statue of the civil war at robel admiral was most amusing when viewed from one particular angle the unfortunate view of the telescope being held at waist level. This determination is disconcerting everyone. But in his mid fifties he took up a bicycle for the first time joking he proceeded. Nobody would have use those words to describe the pace he fired off a deal. As the court was sitting and they would vote on the cases they heard during the week after the conference he would decide which justice would write which opinion sending by messenger to the justices homes late seven saturday afternoon they wanted to work on their case until they went into a recess schedule throughout the term for that purpose better homes was positively uncomfortable until the assignment was completed. Now this was before the modern practice. He wrote every work himself if not always easy lead to cipher bowl still stands at that upright mahogany desk was a judge on the massachusetts Supreme Court and launch into the work at once the moment since the assignment arrived to put in an hour or two before dinner continuing on sunday and then to deliver the final draft in time to be printed and circulated to the other justices by and then offering to take the load off the slower breath. And then to occasionally delay getting out these assignments until monday it was unbearable. Dear chief let me know as soon as as convenient the case you assigned to me i worry until i know. That he follows that with a latin quotation from the epic poem about caesar and the transfixed and got nothing done as long as anything we meet undone. I would like to write them all if i could he confided to his friend shortly after joining the court he was not joking he did not write them all they did produce 873 signed opinions which is still a record even those that exceeded his 29 years on the bench 30 separate concurrences answer d to consen consent. He brought the same access to everything. With every book that he read. Then known as but then the list exceeded 4000 which is more than one book a week for 70 years. The range was extraordinary philosophy, sociology, literatur mysteries and the classics of the latest authors Virginia Woolf dickens and freud in Saint Augustine karl marx and voltaire. Hemingway, spinoza, james joyce. He tells nothing much he read homer in greek. He said he did not know but can you imagine a drawl dash trying on his. And one who has duty in his bones, he attributed his reading to the inability to shake the gospel of selfimprovement absorbed in his youth in the eighties reading greek for the first time. To his friends he explained preparing for my final examination. He ruled book once started had to be finished. s last secretary remembered the then retired justice would literally groan yet steadfastly refusing to abandon it neither of the secretaries could remember him giving up with a scandalous novel. He was then in his 90th year and had begun to have the secretary read aloud to him. The increasingly redfaced young man reaching one page 107 before he interrupted. We will not finish this book. It is not redeemed by the pornography. But his deep strain of phyllis cap one dash will be an equally deeper since. Average intelligence of what smile over the aspirations have you give the homespun . Have you made up your mind you are not god but it causes worry. And then to more seriously explain the other things of life for me to have a swelled head. He thought it was a saving grace and conversely that selfimportance was incompatible with selfawareness so when i see a man with a swelled head he told his old friend i revere his innocence and on sophistication. The whip that crackled through was part of the enduring legend like mark twain churchill and wild many old and new were attributed to him although he never said that sophomore by his father and namesake also renowned by his wit. And he holds an indelible place in art and literature even if there is no basis in reality and then to remark and then to go back at least a century before him. And the comments about aging were his. What are the greatest problems he observed one day is to find those vices for old age. Starting at age 70 he always warned the young man selected to be secretary it was subject to my right to die or resign. As for washington personalities they have achieved welldeserved immortality. It only held a larger options. America was not country to make a celebrity of a judge much less an intellectual which is the only thing homes ever really wanted to be known for his score and ambition of office for its own sake i would not do much more than walk across the street to be called chief justice instead of justice or whether as he said before i can find my aspirations to be the greatest legal thinker in the world. Certainly not members of the public knew he was the author of the single most important book in scholarship the common law appeared in 1881 when holmes was just 40 and a work of profound learning revolutionary and shocking implications. Pricing the development. The law embodies the story of the Nations Development for many centuries and cannot be dealt with that is if it contains only the axioms and corollaries of a book on mathematics. It was the genius of the coleman law common law that there were Workable Solutions that Society Needs even in individual cases. Standards of conduct for the relation between landlord and tenant and buyer and seller in the ever changing and complex world for a century and a half later it is a classic note to every law student must have been quoted the life of the law is not logic but experience. But if the public did not know were care about homes as a scholar legally the remarkable way with words that he first displayed in common law was to the wider fame that would come. Like no one else with this style of no one else of whitman or between two feel that professional rivalry he had a gift of compression and the ability to reduce that idea and its essence expressing the complex. Releasing the concentrated meeting by almost a physical adult but even in his day he stood out. Now judges think of breeding that would be a minority of one. That judicious law that is not surprising given the lee all opinions are written by law clerks from law school. And the style is summarized by what presenting that inaccuracy as colorless platitudes with no is inclusion for lengthy citations and footnotes. Holmes never worried he to leave out an essential point because Everything Else was extraneous. To go after the jugular and let the rest go. Those long opinions that were treatise the explanation of the obvious like a Brigadier General written for an opinion he said was the ruling that judges would issue from the bench it should be that way he said. His secretary later attorney general under fdr struggled like many of his admirers what was so powerful or even magical about his legal problems. But as those were plucked to the bone so scarce and concentrated but phrased with such grace it was close to the nature of his thought and could not separate them another way to say holmes was a great judge at heart because he was a great thinker his jurisprudence not only a profound study of the law but more deeply of the purpose and meaning of the law in life indeed and life itself. He was never a snob. Nothing with pomposity youre putting on social errors. To teach me some great lessons to be prepared for catastrophe and to endure being bored no matter how i found myself in the usual routine they were other situations if i was not inferior i had maybe look down upon not experiencing to look out. Not talking about the anti summative one semitism fe despair is socialism the social and economic equality with utopian nonsense he was equally disdainful of the rich and their empty handed pursuits those who amassed works of art without understanding or appreciation but that brute power of wealth and then from the french chateaus in the Society Ladies playing bridge going to a lunch with dresses costing 1000 to use that manifestation with loathing. He knew from bitter experience but when you know that you do. Then to be the that it was a statement of the ideal of the judicial impartiality to put aside when those presumptions were far more in practice and then doubting his own principles is the mark of a civilized man. His philosophical skepticism was behind everyone of his most enduring contributions and what convinced him to lead but the reason there are complex issues. And then a remarkable triumph for the idea but the law should be based on external standards and not that subjective moral judgment. To be commonplace such as the reasonable man that is a yardstick to determine negligence and the balancing test with those formulas from air every branch of law much to the legal scholarship. All around in a philosophy which i did not see that principle. But those that are found is nothing more than tissue eating on and then from what the founders thought of that matter. And from the original list. He would be equally scornful of what the judges face binary choice of construction or judicial activism. Those questions of constitutional law come down to competing rights which the constitution does and then as precepts of the constitution he is guilty but to have those Workable Solutions. Trading the same skeptical eye on the constitution as everything and one of his less successful legacies when to routinely invoke the constitution as a final word of every partisan. For constitution is not a mathematical set of formulas or does not define fields of black and white. And it is in a partisan of a particular set of opinions but rather a frame of government for men of opposite opinions and for the future. Thank you. [applause] i will be happy to take your questions. Please come up to the microphone. I devote almost a whole chapter on the question of free speech. On one hand was very influential to shift goals by much more encompassing view of freedom of speech. He had issued a now famous opinion as a district judge with the masses. The postmaster general bands subversive literature. A case was brought of the First Amendment and then enjoying the government from confiscating. To say i bid farewell. To have one of the shortest voyages because he was overruled very quickly. But to say exactly what holmes believed as a skeptic. It is a very interesting point because not so much how we think of rights and it is part of me as a human being. He did work from washington to boston and i talked most of the way. And then to say you are talking about sacred right to free speech what about my right to kill the other fellow if i disagree cracks and then influential. And then to be extremely important with freedom of speech. And we rarely admitted we changed his mind but said we were simply ignorant that the common law had not been affected by the First Amendment. I actually went to Oliver Wendell Holmes Middle School in new york. Twopart question. In the last analysis how do you describe the relationship with his father quicksand second what about the use of lincoln . Studios are great questions. They were very similar and great conversationalist with great wi wit. Great sense of humor. His father was one of the most important literary figures in america at his age. A household name particularly cofounder of the atlantic monthly, founder of the first internationally known humorist book and could be plane with the refusal to take things seriously and his flippancy and needling his son. You can see him during the civil war in particular, he gets to the point tired of you at home giving me lectures. And it was great he was that his father criticize it but nobody else. And always referred to him as the governor or the old man. So it was intense in some ways but it was complicated. By god if you have the same name as your famous father it is pretty hard. He always felt the need to get out from under his fathers image. In fact there is a great story shortly after he arrived in washington from the washington post. Woman cames up at a reception and says i love your book. You are a household name and saying im out with my father and says she says you are much too modest and the article in the post and the headline was holmes side. Now ive already forgotten your second question. Lincoln . He told several in particular Louis Einstein many years late later, like many people from massachusetts had a very low opinion. I thought of myth was constructed. But i have since read things that made me realize i was probably wrong about that. I have a question after he was nominated but before he was confirmed he went around boston to say farewell and did one at the tavern club band in that address he was given a resume of his life and said talking about the civil war it was perhaps the great war experience of his life and then said perhaps a greater more experience was the first ten years of a profession becoming a lawyer. What are your thoughts quick. A consistent strain in his view was using the military metaphor but to be on the firing line of life. He felt having important decisions in your hands, life and death was facing up in its fullest. And he talks and says where do you with that particularly the first years in massachusetts he presided over and he saw side and life and he never would have seen but then to be exposed to those real parts of life event to be on the firing there are those. Because of a traffic jam i was 25 minutes late he may have already answered these questions. That two of his comments that did not bear well was three generations are enough. A terrible state on his reputation. And second you cannot shout fire in a crowded theater which has been terribly abused. Can you talk about those of you havent already quick. The fire in the theater metaphor is interesting. And holmes himself said as soon as a phrase becomes current it is an excuse for not thinking clearly to the end of a sentence. He was aware of the danger of the variability to come up with a great and memorable phrase could lead to abuse. And if you read the whole opinion in context, he really put it into the context that speech that that is the distinction but when it becomes a crime itself then it is in a different but if you would have seen if it were abused but it certainly has. But then to allow for the involuntary but one case came to the Supreme Court and in a decision so supposed of the three generations of Mental Illness in his family. And it is easy in retrospect, nobody today would defend the idea for sterilization and in state institutions but we have the perspective of the nazi atrocities and that it has fried but then to cut through the euphemisms. It is more shocking to us though and i am not defending him, but understand the historical context. But the most technical and medical terms of a and then to have more scientifically invalid. And there is a couple of other points for that of course those defenders of rights would be. But the former point that is hard to get our minds around the idea of how could this seem acceptable to have a but then to say and we the history and the only way i could not be shocking to us is if and when those worldviews. Did of the things justify this but what is fundamentally flawed in his character but to be completely in step with the public majority view in america at time. And it was open and shut because they knew that but that not to be at the state to observe a is power. But she was definitely more of a traditional busted per class and he kept saying a number of times i have for this way but all of these yellow red are great to cherish you that they were jewish. But they came to his house to lobby him out during world war i. Fanny sat in with a discussion and agreed with them and he thought holmes was being helpful to defend the right of the anarchist and the radicals. With a very long and devoted marriage, holmes had many but how much he was impressed to say she was content to play second fiddle but then with those legal decisions to reflect that. Yes that is an interesting development. He was an abolitionist. He was one of the small group as he recalls to defend it with the Anti Slavery Society that is what inspires him to list. He said i dont care about graduating. It was the ideal field for the cost. But what made him really skeptical of policies is that every cause is but certainty leads to violence. I could not find one race this word or any hint i would have plenty of time to but you do see his views beginning to change in the twenties and thirties with the cases of mob dominated trails in the south was but to holmes alone he was the center to say this is not justice. But those never reached him but he was very involved in the sand all of the progressive transfer of arms. But he said there are 1000 works things that lead to the blacks that lead to the blacks that lead to the blacks. [applause] thank you. [inaudible conversations] [inaudible conversations]. Good evening. I will be happy to welcome you to tonights event with patrick guarding keith berger that