In the Shadow of Oliver Wendell Holmes

Guest Blogger

Jill Lepore

Oliver Wendell Holmes was born in 1841, when Andrew Jackson was still alive. When Holmes got to be an old man, he was said to be the only man living who remembered arguing with John Quincy Adams.[1] Holmes died in 1935, two days before his ninety-fourth birthday. He left the bulk of his estate to the United States.[2] He never explained what he expected the United States to do with the money, which was then the largest unrestricted gift ever made to the federal government.[3] “Taxes are the price we pay for civilized society,” he’d once written in a famous dissent.[4] Was the bequest a kind of tax he felt he owed the country? FDR asked Congress to think of some way to spend the money that would maintain the faith that Holmes placed “in the creative possibilities of the law” and be “worthy of the great man who gave it.”[5] But what?

There followed a feud. The Library of Congress, with the support of the American Bar Association, wanted to build a law library. But Holmes’s twenty-seven former secretaries, or what would now be called clerks, wanted to turn Holmes’s house into a museum, or to add a garden to the Supreme Court, or to establish scholarships for Harvard law school students.[6] In 1940 a congressional committee formed to figure out how to spend the money called for an edition of Holmes’s writings, to be edited by his former clerk Felix Frankfurter. That would scarcely have made a dent in the available funds and, in any case, Frankfurter, who joined the Supreme Court in 1939, never got around to it.[7]

Many years passed. Then, in August of 1954, three months after the Supreme Court issued its explosive decision in Brown v. Board of Education, the historian, former assistant U.S. Attorney General and all-around intimate of the Court, Charles Warren--no relation to Chief Justice Earl Warren--died in Washington. Holmes had greatly admired the historian Warren’s three volume The Supreme Court in United States History; he called the book, which won the Pulitzer Prize in 1923, a “pièce de résistance.”[8]

In the 1920s, when the Court was under fierce attack, Warren’s worshipful account of the Court’s history had helped to save it from Progressives’ calls for reform. In the mid-1950s, of course, the Court was under attack again, this time from white Southerners who carried signs that read “Impeach Earl Warren.” The chief justice might have wondered whether this history trick might work twice. In 1955, as the chair of a new, congressionally charged four-man Permanent Holmes Devise Committee, he convinced its members that the funds should be used to commission a complete, eleven-volume “definitive history” of the Supreme Court from 1789 to 1941. “There is no such work in existence, and as far as is generally known at least none is in contemplation,” he wrote. 

The Supreme Court has neither a historian nor any other attaché whose duty it is to make the writing of such a history possible. It is thought that the fund might finance such a historian, and that in addition to writing a history he might preserve for posterity much Supreme Court lore of the past century and a half that would otherwise be lost forever.[9] 

A plan was made, a contract signed. “How long it will take to compile the initial volume no one can predict,” the New York Times observed.[10] It took decades longer than anyone expected. The Holmes Devise Committee hoped to complete the series quickly. Harvard Law School’s Paul A. Freund was appointed the series’ editor. He appears to have given deadlines all the respect that Boston drivers give to STOP signs. The distinguished historian Stanley N. Katz would later write that, “For reasons that seem incomprehensible, the plan was to complete the writing of the Holmes Devise History in four years,” even though its authors were given—by the publisher, Macmillan—ten years to write. [11] None of them met that deadline.

One problem is that Freund appointed lawyers, not historians, to write the history of the Court. “They were Paul Freud’s friends, law school professors,” Katz told me. “By definition these were people who had never written a book.”[12] They were also former Supreme Court clerks, and they exhibited a certain deference, a reverence, for the institution, that most historians would view as interfering with their ability to write about it. Many were, understandably, daunted by the scale of the work, and also by the scrutiny to which it would be subjected. Charles Fairman was trying to write what became two volumes on Reconstruction during the racial upheaval of the 1960s. He told Freund he was afraid he’d be sued by heirs of Confederate lawyers and judges, not a worry that haunts most historians. Then, too, he was afraid people would read his work as a commentary on the Warren Court. “People will not view our history as merely some more books by some more professors,” he wrote to Freund in 1966. “Ours is a public enterprise to provide a definitive work on what at the moment is the most controversial feature of our Government.”[13]

Every book about the history of the Supreme Court is a verdict on the current Court. Freund’s writers found that paralyzing.

The original project, Katz once said, was “like getting seven of the smartest lawyers together and asking them to write a novel.” [14] There were other problems. Several men, including Alexander Bickel, died before completing their commissions. Benno Schmidt abandoned his volume when he became dean of Columbia law school; Gerald Gunther abandoned his to write a biography of Learned Hand. Freund turned down Kennedy’s request to serve as solicitor general, citing his work on the Devise. (“I thought you would prefer to make history than to write it,” Kennedy told him, miffed.[15]) But Freund himself was unable to complete his own assignment, a volume on the Hughes Court. He turned the project over to Richard Friedman, who didn’t finish it, either. The first volume in the series was not published until 1971.

“The time has come to blow the whistle on the Holmes Devise History of The Supreme Court,” a young professor of law at the University of Wisconsin named Mark V. Tushnet wrote in 1976. “Paul Freund is a great constitutional scholar and an inspiring teacher but the three volumes of the history that have appeared to date show that he has not done the job that the general editor of the series should have done.” Reviewing the volume on the Taney Court, Tushnet described it, quite accurately, as out of date, banal, misconceived, disappointing, and bearing “no indication that it was published in the 1970’s rather than the 1950’s.”[16]

            The delays led to lawsuits, returned advances, and threats of lawsuits. “Frankly, I can't give any explanation for why the authors have been so dilatory,” Daniel Boorstin, Librarian of Congress, told the New York Times in 1983. “It’s not a happy story.” [17] Boorstin brought Katz on board. “First thing, we’ve gotta get rid of Paul Freund,” Boorstin told Katz. “It’s very simple. You go and have lunch with him and tell him he’s fired.” Katz replaced Freund. Gerald Gunther had been working for decades on the volume on the Marshall Court. “He sent me 1500 pages of some text, which was multiple versions of the first three chapters of the book,” Katz told me. “We decided to thank him for his service.”[18] Gunther sent his successor, G. Edward White, 4500 pages of manuscript. [19]

A new target was set for 1985, the fiftieth anniversary of Holmes’ death. That got pushed back to 1987, the bicentennial of the Constitution, and then to 1991, the bicentennial of the Bill of Rights. The Librarian of Congress joked that the tricentennial of the Constitution, 2087, seemed more reasonable.[20] It’s nearly come to that. Despite the delays, the Committee expanded the scope of the project from eleven to thirteen volumes, the twelfth, by William Wiecek, covering the era from 1941 to 1953, and a thirteenth, on the Warren Court, from 1953-1969. Robert Bork, who was on the Devise Committee at the time, objected. “Nobody could do that fairly and anyone you guys would choose would be the wrong person to do it.” After Robert Cover died of a heart attack in 1986 at forty-two, Katz assigned Cover’s volume, on the Taft Court, to Robert Post. “I am quite sure that the Post and Wiecek volumes will be sent to the publisher well before the end of the century,” Katz wrote, fatefully, in 1997. “The end is in sight.” [21]

Mark Tushnet took on the twice-abandoned volume on the Hughes Court. His The Hughes Court: From Progressivism to Pluralism, 1930-1940, a brisk and illuminating twelve hundred and thirty-eight pages, came out last year. Wiecek’s volume came out in 2006. The last of the originally planned volumes-- Post’s The Taft Court: Making Law for a Divided Nation, 1921-1930—has just been published, nearly ninety years after Holmes’s death (I’ve reviewed it here). Laura Kalman is writing a volume on the Warren Court. The Devise Committee is considering adding more volumes that would presumably cover the Burgher and Rehnquist Courts.[22] Someday, someone will probably write the Devise History of the Roberts Court. Its longest chapter will likely be the story of what the Court did in 2024, with the Trump cases.

Once the history of the Supreme Court is finally finished, Katz once wrote, “I, for one, am comforted in the knowledge that it will have to be done all over again.” [23] History being yet another price people pay for civilized society.

Jill Lepore is David Woods Kemper '41 Professor of American History, Harvard College Professor, and Affiliate Professor of Law at Harvard University. You can reach her by e-mail at jlepore@fas.harvard.edu.