Holmes, the Law, the Author and the Reader

For years, I’ve been curious about Oliver Wendell Holmes. His name seemed to show up in other people’s biographies, and I knew he was an important U.S. Supreme Court Justice, but I didn’t know much more. That’s why I was excited about reading a relatively new biography by Stephen Budiansky.

After early chapters about growing up wealthy and connected in Boston, the son of a famous father, the younger Holmes and his Harvard buddies sign up to lead a Civil War regiment and make a complete mess of it. “The officers [Massachusetts Governor Andrew] chose for the Twentieth [Regiment] read like a page from Boston’s social register…one-half of the regiment’s officers literally were Harvard graduates and at least two-thirds were drawn from the city’s social elite. None had military experience…”

What could possibly go wrong? They found out at Ball’s Bluff, “the first place they could face fear and death the courage they knew was expected of them…” However, “most performed with extraordinary bravery in the midst of the chaos and bungling leadership for which Ball’s Bluff is primarily remembered by military historians today. A military disaster…” Holmes was seriously injured and narrowly escaped death, but hundreds of others, including officers, were not so fortunate. It is a crackling good war story–the first of several, in fact, as we move from Antietam to Fredricksburg to Chancellorsville– and a most unlikely first act for a man mostly known for his work some forty years later as an independent-minded justice on the high court.

Unfortunately, the author attempts a fairly balanced look at Holmes’s whole life. In many biographies, that would be the best approach, but here, Holmes’s many friendships with rich women, in the U.S. and the U.K. fill so many pages, the distraction outdistances the narrative value. Granting the importance of context, even a tenth as much would have been sufficient.

Reading about the war experiences set my hopes high for the author’s discussion of Holmes’s life on the court. Sadly, more than half the book and two-third of his life are gone before Oliver Wendell Holmes becomes a Supreme Court justice. Certainly enough for a deep dive.

Seeking clarity on Holmes’s thinking, his approach to the law, his most important cases, I struggled. I do not believe this to be a failing of the book, but instead, my lackluster background in the law. Many of the cases seemed to turn on technical details and fine points, so the overview and thrust were difficult to grasp. I loved the relationship between young Felix Frankfurter, a good friend mentored by Holmes and deeply affected by his approach to judicial restraint. Frankfurter later became a Supreme Court justice as well. Stories about the warm relationship between Holmes and Louis Brandeis, who served alongside Holmes, and also became both an ally and a good friend. To see the Supreme Court justices as human beings, good friends who care so deeply about the underlying structures of democracy was thrilling.

Still, I kept coming back to the deliberations, the opinions, the cases that were so much a part of Holmes’s daily life, and the country’s decision-making processes, for three decades. (He served until 1932.) Consulting Wikipedia for a review of his most significant court cases, feeling as though I’d learned too little by reading an important book, I confirmed my self-assessment.

And that leaves me with a question. Is it the job of the reader to come to a well-written, well-researched biography of a significant U.S. Supreme Court Justice with an understanding of legal philosophies and cases from a century ago, or is the job of the author of such a book to hold the hand of an ill-informed student (me) to make certain that he or she comprehends the subject’s thinking and accomplishments, knowing full well that the reader (also me) is likely to read the book and then move on. Move on not to a book about Brandeis or Frankfurter or another Justice, but to Doris Kearn Goodwin’s Leadership in Turbulent Timesand then, probably, Robert Caro’s Working, with an Ian Stewart math/science book (perhaps Flatterland, or Visions of Infinity) or, more likely, conductor John Mauceri’s For the Love of Music: A Conductor’s Guide to the Art of Listening. With some poetry, some short stories, and probably a fiction book or two or three along the way? Did I fail because I didn’t take the time, or did Budiansky fail because he didn’t inspire me to read and learn more? I’ll take responsibility. And I will learn more about the Supreme Court, the Justices, and their thinking, but I may need another decade or two before I come around again.

A Founding Father, Less Famous

If his name is mentioned in a history book, he’s often overshadowed by Washington, Adams, Jefferson, Franklin, and perhaps even John Jay. Certainly, his image would be much more clear if he was the subject of a Broadway musical, and indeed, an enterprising composer and storytelling would find a great deal of strong raw material in Without Precedent, an extraordinarily compelling biography of Chief Justice Joh Marshall written with clarity and impact by a University of California law professor, John Richard Paul.

9780525533276He wasn’t a rich man, and he wasn’t a well-educated man. “Marshall grew up in a two-room log cabin shared with fourteen siblings on the hardscrabble frontier of Virginia. His only formal education consisted of one year of grammar school and six weeks of law school.” And yet–this is the part that would make a terrific Broadway musical, or perhaps even an opera–Marshall becomes a military officer, influential attorney of local and then national renown, a diplomat to France, a congressman, U.S. Secretary of State, the biographer of George Washington, and eventually, the first really effective chief justice of the new United States of America (John Jay was the first, but the high court was just beginning to take shape; he was followed by one short-termer whose nomination went unapproved, and another, who was also operating in the early days of our judicial system).

As Chief Justice, Marshall kept his justices close (they all lived together), and ran a most agreeable, remarkably non-contentious court through friendship and a model of positive social interaction.  This congenial group firmly established the Supreme Court as the arbiter of laws in the young nation, a way of working that continues today.”From 1801 to 1835, the Court issued more than one thousand decisions–nearly all unanimous–and about half that number were written by Marshall. No other chief justice comes close to that record, and no Supreme Court before or since has issued even a majority of its decisions unanimously. Marshall was not President John Adams’ first choice for the job.

The tale begins in the dark days of the American Revolution, when our forces were hopelessly untrained, unfed and unable to perform as the fighting force necessary to gain independence. Marshall was twenty one years old, and remarkably upbeat given the pathetic circumstances. That’s what caught the eye of the new military leader from Prussia, Baron von Steuben, and soon after, Lafayette, Washington and Hamilton, too. He already knew Jefferson, a family relation (from the wealthy side of the family), who makes his first appearance in the Marshall story while ineffectively running Virginia as its governor (Jefferson does not do well in this book; the author is critical of his distracted approach to public service).

Marshall becomes a small town lawyer–at the time, Richmond Town (now Richmond) had recently become the state capital, but it was an exceedingly small place. He marries well, and becomes a member of the House of Delegates, a Virginia legislative body. He is the model social networker, joining every significant organization, building his reputation by inviting people to his home (which doubled as his law office) for relaxed dinners. He lived in that house for a long time–decades, in fact–in part because his beloved wife Polly struggled with health issues for much of her adult life.

There is so much story to tell, and this essay can do little more than introduce the man, the book and the author with the strongest possible encouragement to read up on John Marshall. I’ve read a lot of books about American history, founding fathers, and the early nation to identify when a new volume is unique and valuable. This one wins on both counts because the material is so central to the development of the nation and our approach to governance, and because the stories told are not the same stories that appear in dozens of other books about the founders. Instead, this seems to be fresh, or, at least, generally unfamiliar or, at least, new to me. It’s helpful that the biographer’s keen interest in providing a clear picture of Justice Marshall is equal to my own curiosity.

 

 

 

 

 

 

 

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