Guest Essayist: Daniel A. Cotter

Justice Oliver Wendell Holmes, Jr. (1841-1935): The Oldest Justice at Retirement from the Supreme Court

I, Justice Oliver Wendell Holmes, Jr., after serving as a Massachusetts Supreme Court judge for twenty years, was nominated to a vacancy on the Supreme Court of the United States and served for almost thirty years on the highest court in the nation, retiring at age 90.  Justice Holmes took his seat on the United States Supreme Court in 1902, at the age of 61, becoming the 58th Justice of the Supreme Court, and one of the most quoted justices in the Supreme Court’s history as well as one of the best known of the justices.

Early Life and Career  

Holmes was born in Boston, Massachusetts on March 8, 1841, to Oliver Wendell Holmes, Sr., a doctor and prominent writer, and Amelia Lee Jackson, an abolitionist.  Holmes grew up among a wide swath of intellectuals, as his family was friends with Henry James, Ralph Waldo Emerson and other prominent writers.  Holmes received his early education in private schools, then attended Harvard College (now University), receiving his A.B. in 1861, returning from the Union Army to participate in graduation ceremonies. In the spring of 1861, Holmes enlisted in the Massachusetts militia at the beginning of the Civil War.  Holmes became a Captain in the 20th Massachusetts Volunteer Regiment.  During the Civil War, Holmes was injured in action three times and also suffered from dysentery.  In 1864, his commission ended, and Holmes returned home.

Holmes then enrolled in Harvard Law School, receiving his LLB in 1866 and soon passed the bar.  He joined a small firm in Boston and began his career in private practice, focusing on commercial law and maritime law.  In addition to his legal work, Holmes began to write and lecture on law, serving as an instructor in constitutional law at Harvard College from 1870 to 1871.  From 1870 to 1873, Holmes was the Editor of the American Law Review.  Holmes also prepared a new edition of Kent’s Commentaries.

In 1881, Holmes published a book, The Common Law, which remains in print.  The book was a collection of his essays and lectures, in which he described common law as evolving in tandem with society, rejecting the “formalist” theories of other legal philosophers.  In fall 1882, Holmes became the Weld Professor of Law at Harvard Law School, an endowed position. However, shortly thereafter, a vacancy on the Supreme Judicial Court of Massachusetts opened when a justice resigned.  The governor of Massachusetts, whose term was ending, was permitted to replace the resigning justice, provided he did it within a matter of hours.  Holmes was suggested to the governor by Holmes’ law partner.  Holmes agreed to the appointment and was sworn in on December 15, 1882.  Holmes immediately resigned from his professorship without advance notice, which was a source of friction between Holmes and the Harvard Law School faculty going forward.

In 1897, Holmes published his essay, “The Path to Law,” in the Harvard Law Review.  This essay expounded on his views of the common law, told from the view of a practitioner dealing with his client.

Following the death of the Massachusetts Supreme Court Chief Justice in 1899, Holmes became Chief Justice of that court.  Holmes’ reputation as a jurist and a scholar grew based on his work on the court and his ongoing publications and speeches.

Supreme Court

Holmes served as Chief Justice of the Massachusetts Supreme Court for just over three years.  On August 11, 1902, President Theodore Roosevelt nominated Holmes as an Associate Justice of the Supreme Court to fill a vacancy opened by the retirement of Justice Horace Gray.  Holmes would be the first of three Justices nominated by Roosevelt and was one of the first instances where a Supreme Court justice was selected by a president without regards to the nominee’s political views.  Although Holmes was initially appointed during a congressional recess, Roosevelt resubmitted the nomination on December 2, 1902, and Holmes was approved by the United States Senate by voice vote two days later.  Holmes took his oath on December 8, 1902.

Holmes served on the Court for almost thirty years.  Holmes is known for his pithy opinions, which have been frequently quoted over the years.  In Otis v. Parker, his first opinion as a Justice of the Supreme Court, Holmes reiterated his views on the common law, holding that due process provided some protections to the people, but not to economic interests as they were not protected by the common law.

Holmes also was the drafter of the decision in Schenck v. United States (1919), which upheld Schenck’s conviction for violations of the Espionage Act after distributing pamphlets protesting the United States’ involvement in World War I.  Holmes wrote his famous statement on First Amendment rights in Schenck:  “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic.”

Holmes earned the nickname, “The Great Dissenter,” often disagreeing with his colleagues, even though in nearly thirty years, he only wrote 72 separate dissents compared to almost 900 majority opinions.  It is the quality, rather than the quantity, of Holmes’ dissents that earned his reputation.  Holmes’ dissents are known for their forcefulness and logic, and in the arenas of substantive due process and free speech, his dissents eventually became the Court’s positions.  His most notable dissents include his opinions in Lochner v. New York (1905) (disagreeing with the majority’s overturning a 60 hour workweek limitation for bakers, asserting that the majority engaged in judicial activism in their decision) and Abrams v. United States (1919), where the majority upheld the conviction of a number of Russian-born radicals under the same Espionage Act that was the basis of Schenck.  In the Abrams case, Holmes did not believe the “clear and present danger” test had been met, stating that “the ultimate good desired is better reached by free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market, and that truth is the only ground upon which their wishes safely can be carried out.”

Holmes’ 1904 dissent in Northern Securities Co. v. United States (his first written dissent) permanently strained his previously friendly relationship with President Roosevelt.  The majority opinion in Northern Securities held that in interpreting the Sherman Antitrust Act, the Court could not take into account the negative impact a decision to dissolve a company would have on the business community.  Holmes’ dissent, joined by three others, argued for strict interpretation of the Act to ensure constitutionality.


Holmes’ tenure on the Court spanned four Chief Justices (Fuller, White, Taft and Hughes).  He wrote more opinions for the Court than any other Justice during that time. Holmes tendered his resignation in January 1932 due to failing health.  Holmes’ approach to judging of allowing states to be arenas to experiment in law and politics and choosing fairly between competing forces led to decisions that at times appeared inconsistent (such as the two 1919 free speech cases, Schenck and Abrams).  Holmes also issued several opinions that, contrary to his image of being a judge of “the people,” were harsh in their holdings (such as the decision upholding state sterilization of the mentally handicapped in Buck v. Bell, where Holmes infamously wrote, “Three generations of imbeciles are enough.”).   Nevertheless, Holmes received considerable public acclaim in early biographies and a movie based on his life.  Producing opinions known not only for their flowery language but also their brevity, Holmes continues to be one of the most quoted Justices in the Supreme Court’s history.  According to, Oliver Wendell Holmes, Jr. is one of the nine greatest justices who have served on the Supreme Court; the site groups Holmes with Justices William Brennan and Louis Brandeis as the “Three Unyielding Contrarians.”

Dan Cotter is a Partner at Butler Rubin Saltarelli & Boyd LLP and an Adjunct Professor at The John Marshall Law School, where he teaches SCOTUS Judicial Biographies.  He is also Past President of The Chicago Bar Association. The article contains his opinions and is not to be attributed to Butler Rubin or any of its clients, The Chicago Bar Association, or John Marshall.

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