168-538: Oliver Wendell Holmes Jr. (March 8, 1841 – March 6, 1935) was an American jurist who served as an associate justice of the U.S. Supreme Court from 1902 to 1932. Holmes is one of the most widely cited and influential Supreme Court justices in American history, noted for his long tenure on the Court and for his pithy opinions—particularly those on civil liberties and American constitutional democracy—and deference to
336-727: A British citizen in 1915, a year before his death. James was nominated for the Nobel Prize in Literature in 1911, 1912, and 1916. Jorge Luis Borges said "I have visited some literatures of East and West; I have compiled an encyclopedic compendium of fantastic literature; I have translated Kafka , Melville , and Bloy ; I know of no stranger work than that of Henry James." James was born at 21 Washington Place (facing Washington Square) in New York City on 15 April 1843. His parents were Mary Walsh and Henry James Sr. His father
504-478: A case, has led some to characterize him as unfeeling, however. George Washington University law professor Jeffrey Rosen summarized Holmes's views this way: "Holmes was a cold and brutally cynical man who had contempt for the masses and for the progressive laws he voted to uphold ... an aristocratic nihilist who once told his sister that he loathed 'the thick-fingered clowns we call the people'." Although Holmes did not dissent frequently—during his 29 years on
672-657: A commission as second lieutenant in the Twentieth Regiment of Massachusetts Volunteer Infantry . He saw considerable combat during his service, taking part in the Peninsula Campaign , and the Wilderness , suffering wounds at the Battle of Ball's Bluff , Antietam , and Chancellorsville , and suffered from a near-fatal case of dysentery. He particularly admired and was close to Henry Livermore Abbott ,
840-402: A democracy: [W]hen men have realized that time has upset many fighting faiths, they may come to believe ... 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. That, at any rate, is the theory of our Constitution. It is an experiment, as all life
1008-616: A dramatisation of his popular novella Daisy Miller in 1882. From 1890 to 1892, having received a bequest that freed him from magazine publication, he made a strenuous effort to succeed on the London stage, writing a half-dozen plays, of which only one, a dramatisation of his novel The American , was produced. This play was performed for several years by a touring repertory company, and had a respectable run in London, but did not earn very much money for James. His other plays written at this time were not produced. In 1893, however, he responded to
1176-511: A fellow officer in the 20th Massachusetts. Holmes rose to the rank of lieutenant colonel, but eschewed command of his regiment upon his promotion. Abbott took command of the regiment in his place and was later killed. In September 1863, while recovering at the Holmes family home on Charles Street in Boston from his third major combat injury, Holmes was promoted to colonel, but he never returned to
1344-633: A fire. This injury, which resurfaced at times throughout his life, made him unfit for military service in the American Civil War. His younger brothers Garth Wilkinson and Robertson, however, both served, with Wilkinson serving as an officer in the 54th Massachusetts . In 1864, the James family moved to Boston, Massachusetts, to be near William, who had enrolled first in the Lawrence Scientific School at Harvard and then in
1512-477: A generation later by the "legal realist" school in America. Holmes practiced admiralty law and commercial law in Boston for fifteen years. It was during this time that he did his principal scholarly work, serving as an editor of the new American Law Review , reporting decisions of state supreme courts, and preparing a new edition of Kent's Commentaries , which served practitioners as a compendium of case law, at
1680-447: A judgment of their own, it by no means is true that every law is void which may seem to the judges who pass upon it excessive, unsuited to its ostensible end, or based upon conceptions of morality with which they disagree. Considerable latitude must be allowed for differences of view .... If the state thinks that an admitted evil cannot be prevented except by prohibiting a calling or transaction not in itself necessarily objectionable,
1848-599: A king, you must kill him." He supported the abolitionist movement that thrived in Boston society during the 1850s. At Harvard, he was a member of Alpha Delta Phi fraternity, the Hasty Pudding and the Porcellian Club ; his father had also been a member of both clubs. In the Pudding, he served as Secretary and Poet, as had his father. Holmes graduated Phi Beta Kappa and cum laude from Harvard in 1861, and, in
SECTION 10
#17327810557732016-649: A letter to their parents in Paris, while the boys were staying in Bonn, that Henry and Garth Wilkinson would wrestle "when study has made them dull and sleepy." In 1860, the family returned to Newport. There, Henry befriended Thomas Sergeant Perry , who was to become a celebrated literary academic in adulthood, and painter John La Farge , for whom Henry sat as a subject, and who introduced him to French literature, and in particular, to Balzac . James later called Balzac his "greatest master", and said that he had learned more about
2184-513: A living thought". General propositions do not decide concrete cases. —Holmes's dissent in Lochner v. New York , 198 U.S. 45, 76 (1905) The provisions of the Constitution are not mathematical formulas that have their essence in form, they are organic, living institutions transplanted from English soil. Their significance is vital, not formal; it is to be gathered not simply by taking
2352-482: A living, however, and lacked the experiences of select schools, university, and army service, the common bonds of masculine society. He was furthermore a man whose tastes and interests were, according to the prevailing standards of Victorian era Anglo-American culture, rather feminine, and who was shadowed by the cloud of prejudice that then and later accompanied suspicions of his homosexuality. Edmund Wilson compared James's objectivity to Shakespeare's: One would be in
2520-525: A long visit to London to complete his education went into law practice in Boston. He joined a small firm, and in 1872 married a childhood friend, Fanny Bowditch Dixwell, buying a farm in Mattapoisett, Massachusetts , the following year. Their marriage lasted until her death on April 30, 1929. They never had children. They did adopt and raise an orphaned cousin, Dorothy Upham. Fanny "had a charming public persona. She could also be quiet and unassuming.... She
2688-806: A long visit, James refers jocularly to their "happy little congress of two". In letters to Hugh Walpole, he pursues convoluted jokes and puns about their relationship, referring to himself as an elephant who "paws you oh so benevolently" and winds about Walpole his "well-meaning old trunk". His letters to Walter Berry printed by the Black Sun Press have long been celebrated for their lightly veiled eroticism. However, James corresponded in equally extravagant language with his many female friends, writing, for example, to fellow novelist Lucy Clifford : "Dearest Lucy! What shall I say? when I love you so very, very much, and see you nine times for once that I see Others! Therefore I think that—if you want it made clear to
2856-568: A number of weeks in Italy in 1887, and his shock and grief over her suicide in 1894, are discussed in detail in Edel's biography and play a central role in a study by Lyndall Gordon . Edel conjectured that Woolson was in love with James and killed herself in part because of his coldness, but Woolson's biographers have objected to Edel's account. James is one of the major figures of trans-Atlantic literature. His works frequently juxtapose characters from
3024-430: A once-familiar paradigm in biographies of homosexuals when direct evidence was nonexistent. Novick also criticised Edel for following the discounted Freudian interpretation of homosexuality "as a kind of failure." The difference of opinion erupted in a series of exchanges between Edel (and later Fred Kaplan filling in for Edel) and Novick, which were published by the online magazine Slate , with Novick arguing that even
3192-422: A person whose conduct failed to reflect the prudence of a "reasonable man": [I]f a workman on a house-top at mid-day ... throws down a heavy beam into the street, he does an act which a person of ordinary prudence would foresee is likely to cause death, or grievous bodily harm, and he is dealt with as if he foresaw it, whether he does so in fact or not. If a death is caused by the act, he is guilty of murder. But if
3360-565: A popular figure, especially with American progressives . During his tenure on the U.S. Supreme Court, to which he was appointed by President Theodore Roosevelt in 1902, he supported the constitutionality of state economic regulation and came to advocate broad freedom of speech under the First Amendment , after, in Schenck v. United States (1919), having upheld for a unanimous court criminal sanctions against draft protestors with
3528-489: A position to appreciate James better if one compared him with the dramatists of the seventeenth century— Racine and Molière , whom he resembles in form as well as in point of view, and even Shakespeare , when allowances are made for the most extreme differences in subject and form. These poets are not, like Dickens and Hardy , writers of melodrama—either humorous or pessimistic, nor secretaries of society like Balzac , nor prophets like Tolstoy : they are occupied simply with
SECTION 20
#17327810557733696-409: A repeated exposure of this wickedness, a reiterated and passionate plea for the fullest freedom of development, unimperiled by reckless and barbarous stupidity. Philip Guedalla jokingly described three phases in the development of James's prose: "James I, James II, and The Old Pretender," and observers do often group his works of fiction into three periods. In his apprentice years, culminating with
3864-610: A reputation as the most analysed and ambiguous ghost story in the English language and remains his most widely adapted work in other media. He wrote other highly regarded ghost stories, such as " The Jolly Corner ". James published articles and books of criticism, travel , biography, autobiography, and plays. Born in the United States, James largely relocated to Europe as a young man, and eventually settled in England, becoming
4032-573: A request from actor-manager George Alexander for a serious play for the opening of his renovated St. James's Theatre, and wrote a long drama, Guy Domville , which Alexander produced. A noisy uproar arose on the opening night, 5 January 1895, with hissing from the gallery when James took his bow after the final curtain, and the author was upset. The play received moderately good reviews and had a modest run of four weeks before being taken off to make way for Oscar Wilde 's The Importance of Being Earnest , which Alexander thought would have better prospects for
4200-663: A series of adverbs. The overall effect could be a vivid evocation of a scene as perceived by a sensitive observer. It has been debated whether this change of style was engendered by James's shifting from writing to dictating to a typist, a change made during the composition of What Maisie Knew . In its intense focus on the consciousness of his major characters, James's later work foreshadows extensive developments in 20th-century fiction. Indeed, he might have influenced stream-of-consciousness writers such as Virginia Woolf , who not only read some of his novels but also wrote essays about them. Both contemporary and modern readers have found
4368-405: A serious disease, and her impact on the people around her. Some of these people befriend Milly with honourable motives, while others are more self-interested. James stated in his autobiographical books that Milly was based on Minny Temple, his beloved cousin, who died at an early age of tuberculosis. He said that he attempted in the novel to wrap her memory in the "beauty and dignity of art". James
4536-457: A ship and sneaked them through customs, allowing her to bury him in their family plot. James regularly rejected suggestions that he should marry, and after settling in London, proclaimed himself "a bachelor". F. W. Dupee , in several volumes on the James family, originated the theory that he had been in love with his cousin, Mary ("Minnie") Temple, but that a neurotic fear of sex kept him from admitting such affections: "James's invalidism ...
4704-446: A system imposed by a deity. Being a legal positivist , Holmes brought himself into constant conflict with scholars who believed that legal duties rested upon natural law , a moral order of the kind invoked by Christian theologians and other philosophic idealists. He believed instead "that men make their own laws; that these laws do not flow from some mysterious omnipresence in the sky, and that judges are not independent mouthpieces of
4872-454: A time when official reports were scarce and difficult to obtain. He summarized his hard-won understanding in a series of lectures, collected and published as The Common Law in 1881. The Common Law has been continuously in print since 1881 and remains an important contribution to jurisprudence. The book also remains controversial, for Holmes begins by rejecting various kinds of formalism in law. In his earlier writings he had expressly denied
5040-602: A unanimous Court that an attempt, purely by language, could be prosecuted if the expression, in the circumstances in which it was uttered, posed a "clear and present danger" that the legislature had properly forbidden. In his opinion for the Court, Holmes famously declared that the First Amendment would not protect a person "falsely shouting fire in a theatre and causing a panic". Later in 1919, however, in Abrams v. United States , Holmes dissented. The Wilson Administration
5208-516: A view of Florence by Thomas Cole hung in the front parlor of this house on West Fourteenth. His education was calculated by his father to expose him to many influences, primarily scientific and philosophical; it was described by Percy Lubbock, the editor of his selected letters, as "extraordinarily haphazard and promiscuous." Once, a cousin of the James family came down to the house in Fourteenth Street and, one evening during his stay, read
Oliver Wendell Holmes Jr. - Misplaced Pages Continue
5376-583: Is an experiment. In writing this dissent, Holmes may have been influenced by Zechariah Chafee 's article "Freedom of Speech in War Time". Chafee had criticized Holmes's opinion in Schenck for failing to express in more detail and more clearly the common-law doctrines upon which he relied. In his Abrams dissent, Holmes did elaborate somewhat on the decision in Schenck , roughly along the lines that Chafee had suggested. Although Holmes evidently believed that he
5544-406: Is best known for its prediction theory of law, that "[t]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by law", and for its "bad man" perspective on the law, that "[i]f you really want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict". Soon after
5712-608: Is broad enough to cover cutting the Fallopian tubes . [citation omitted] Three generations of imbeciles are enough. Sterilization rates under eugenics laws in the United States climbed from 1927 until Skinner v. Oklahoma , 316 U.S. 535 (1942), in which the U.S. Supreme Court declared unconstitutional an Oklahoma statute that provided for the sterilization of "habitual criminals". Buck v. Bell continues to be cited occasionally in support of due process requirements for state interventions in medical procedures. For instance, in 2001,
5880-404: Is considered one of the greatest judges in American history and embodies for many the traditions of the common law. A eugenicist, he authored the majority opinion upholding forced sterilization. Tens of thousands of the procedures followed. From the departure of William Howard Taft on February 3, 1930, until Charles Evans Hughes became chief justice on February 24, 1930, Holmes briefly acted as
6048-459: Is exercised well or badly. His protagonists were often young American women facing oppression or abuse, and as his secretary Theodora Bosanquet remarked in her monograph Henry James at Work : When he walked out of the refuge of his study and into the world and looked around him, he saw a place of torment, where creatures of prey perpetually thrust their claws into the quivering flesh of doomed, defenseless children of light ... His novels are
6216-400: Is generally straightforward and, though personally characteristic, well within the norms of 19th-century fiction. Roderick Hudson (1875) is a Künstlerroman that traces the development of the title character, an extremely talented sculptor. Although the book shows some signs of immaturity—this was James's first serious attempt at a full-length novel—it has attracted favourable comment due to
6384-458: Is remembered for prescient opinions on topics as varied as copyright law, the law of contempt, the antitrust status of professional baseball, and the oath required for citizenship . Holmes, like most of his contemporaries, viewed the Bill of Rights as codifying privileges obtained over the centuries in English and American common law, and he established that view in numerous opinions for the Court. He
6552-456: Is set mainly in Europe, especially in England and Italy. Generally regarded as the masterpiece of his early phase, The Portrait of a Lady is described as a psychological novel , exploring the minds of his characters, and almost a work of social science, exploring the differences between Europeans and Americans, the old and the new worlds. The second period of James's career, which extends from
6720-580: Is the subject of contention among James's biographers, but the letters to Andersen were occasionally quasierotic: "I put, my dear boy, my arm around you, & feel the pulsation, thereby, as it were, of our excellent future & your admirable endowment." His numerous letters to the many young homosexual men among his close male friends are more forthcoming. To his homosexual friend Howard Sturgis , James could write: "I repeat, almost to indiscretion, that I could live with you. Meanwhile, I can only try to live without you." In another letter Sturgis, following
6888-440: Is the theory of our Constitution . It is an experiment, as all life is an experiment." He added that "we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death...." The Journal of Legal Studies has identified Holmes as the third-most-cited American legal scholar of the 20th century. Holmes was a legal realist , as summed up in his maxim, "The life of
Oliver Wendell Holmes Jr. - Misplaced Pages Continue
7056-443: Is to have lived & loved & cursed & floundered & enjoyed & suffered—I don't think I regret a single 'excess' of my responsive youth". The interpretation of James as living a less austere emotional life has been subsequently explored by other scholars. The often intense politics of Jamesian scholarship has also been the subject of studies. Author Colm Tóibín has said that Eve Kosofsky Sedgwick 's Epistemology of
7224-411: Is what he attributed to the law, rather than his personal philosophy. Central to his thought was the notion that the law, as it had evolved in modern societies, was concerned with the material results of a defendant's actions. A judge's task was to decide which of two parties before him would bear the cost of an injury. Holmes argued that the evolving common law standard was that liability would fall upon
7392-491: The Constitution of the United States . As a justice of the U.S. Supreme Court, Holmes rejected the argument that the text of the Constitution should be applied directly to cases that came before the court, as if it were a statute. He shared with most of his fellow jurists the belief that the Constitution carried forward principles derived from the common law, principles that continued to evolve in American courts. The text of
7560-570: The Massachusetts Governor's Council adjourned at 3 pm. Holmes's partner George Shattuck proposed him for the vacancy, Holmes quickly agreed, and there being no objection by the council, he took the oath of office on December 15, 1882. His resignation from his professorship, after only a few weeks and without notice , was resented by the law school faculty, with James Bradley Thayer finding Holmes's conduct "selfish" and "thoughtless". On August 2, 1899, Holmes became chief justice of
7728-656: The Massachusetts Supreme Judicial Court following the death of Walbridge A. Field . During his service on the Massachusetts court, Holmes continued to develop and apply his views of the common law, usually following precedent faithfully. He issued few constitutional opinions in these years, but carefully developed the principles of free expression as a common-law doctrine. He departed from precedent to recognize workers' right to organize trade unions and to strike, as long as no violence
7896-541: The Old World (Europe), embodying a feudal civilisation that is beautiful, often corrupt, and alluring, and from the New World (United States), where people are often brash, open, and assertive , and embody the virtues of the new American society—particularly personal freedom and a more exacting moral character. James explores this clash of personalities and cultures, in stories of personal relationships in which power
8064-536: The Sedition Act of 1918 , Holmes held that the freedom of expression guaranteed by federal and state constitutions simply declared a common-law privilege for speech and the press, even when those expressions caused injury, but that the privilege could be defeated by a showing of malice or intent to do harm. Holmes came to write three unanimous opinions for the Supreme Court that arose from prosecutions under
8232-647: The United States Court of Appeals for the Eighth Circuit cited Buck v. Bell to protect the constitutional rights of a woman coerced into sterilization without procedural due process. The court stated that error and abuse will result if the state does not follow the procedural requirements, established by Buck v. Bell , for performing an involuntary sterilization. Buck v. Bell was also cited briefly, though not discussed, in Roe v. Wade , in support of
8400-559: The nomination and Holmes was confirmed by the United States Senate on December 4. He was sworn into office on December 8. On the bench, Holmes did vote to support the administration's position favoring the annexation of former Spanish colonies in the " Insular Cases ". However, he later disappointed Roosevelt by dissenting in Northern Securities Co. v. United States , a major antitrust prosecution;
8568-466: The president to nominate, and with the advice and consent (confirmation) of the Senate , appoint justices to the Supreme Court. Article III, Section 1 of the Constitution effectively grants life tenure to associate justices, and all other federal judges , which ends only when a justice dies, retires, resigns, or is impeached and convicted . Each Supreme Court justice has a single vote in deciding
SECTION 50
#17327810557738736-411: The " New York Edition ", a 24-volume collection of his works. In 1910, his brother William died; Henry had just joined William from an unsuccessful search for relief in Europe, on what turned out to be Henry's last visit to the United States (summer 1910 to July 1911) and was near him when he died. In 1913, he wrote his autobiographies, A Small Boy and Others and Notes of a Son and Brother . After
8904-472: The 1880s was The Tragic Muse . Although he was following the precepts of Zola in his novels of the '80s, their tone and attitude are closer to the fiction of Alphonse Daudet. The lack of critical and financial success for his novels during this period led him to try writing for the theatre; His dramatic works and his experiences with theatre are discussed below. In the last quarter of 1889, "for pure and copious lucre," he started translating Port Tarascon ,
9072-441: The 1917 Espionage Act because in an earlier case, Baltzer v. United States , he had circulated a powerfully expressed dissent, when the majority had voted to uphold a conviction of immigrant socialists who had circulated a petition criticizing the draft. Apparently learning that he was likely to publish this dissent, the government (perhaps alerted by Justice Louis D. Brandeis , newly appointed by President Woodrow Wilson ) abandoned
9240-706: The 20th Massachusetts because the unit had been largely destroyed. Upon his recovery, in January 1864 Holmes was appointed aide-de-camp of General Horatio Wright , then Division Commander of VI Corps , and later in command of the Corps. Holmes served with Wright during General Grant's campaign down to Petersburg, returning to Washington with the Sixth Corps when the Capital was threatened in July 1864. On July 17, 1864, Holmes
9408-474: The 27-year-old Andersen in Rome in 1899, when James was 56, and wrote letters to Andersen that are intensely emotional: "I hold you, dearest boy, in my innermost love, & count on your feeling me—in every throb of your soul". In a letter of 6 May 1904, to his brother William, James referred to himself as "always your hopelessly celibate even though sexagenarian Henry". How accurate that description might have been
9576-526: The Atlantic. It drew notice perhaps mostly because it depicted a woman whose behaviour is outside the social norms of Europe. He also began his first masterpiece, The Portrait of a Lady , which appeared in 1881. In 1877, he first visited Wenlock Abbey in Shropshire, home of his friend Charles Milnes Gaskell , whom he had met through Henry Adams. He was much inspired by the darkly romantic abbey and
9744-500: The Civil War were often present in his writings. Judges decided where and when the force of the state would be brought to bear, and judges in the modern world tended to consult facts and consequences when deciding what conduct to punish. The decisions of judges, viewed over time, determined the rules of conduct and the legal duties by which all are bound. Judges did not and should not consult any external system of morality, certainly not
9912-530: The Closet made a landmark difference to Jamesian scholarship by arguing that he be read as a homosexual writer whose desire to keep his sexuality a secret shaped his layered style and dramatic artistry. According to Tóibín, such a reading "removed James from the realm of dead white males who wrote about posh people. He became our contemporary." James's letters to expatriate American sculptor Hendrik Christian Andersen have attracted particular attention. James met
10080-466: The Constitution itself, as originally understood, was not a set of rules, but only a directive to courts to consider the body of the common law when deciding cases that arose under the Constitution. It followed that constitutional principles adopted from the common law were evolving, as the law itself evolved: "A word [in the Constitution] is not a crystal, transparent and unchanged, it is the skin of
10248-633: The Espionage Act of 1917 that made criticisms of the government or the war effort a crime. Abrams and his co-defendants were charged with distributing leaflets (one in English and one in Yiddish) that called for a "general strike" to protest the U.S. intervention in Russia. A majority of the Court voted to uphold the convictions and sentences of ten and twenty years, to be followed by deportation, while Holmes dissented. The majority claimed to be following
SECTION 60
#173278105577310416-809: The Eternal City", he wrote to his brother William. "At last—for the first time—I live!" He attempted to support himself as a freelance writer in Rome and then secured a position as Paris correspondent for the New York Tribune through the influence of its editor, John Hay . When these efforts failed, he returned to New York City. During 1874 and 1875, he published Transatlantic Sketches , A Passionate Pilgrim and Roderick Hudson . In 1875, James wrote for The Nation every week; he received anywhere from $ 3 to $ 10 for brief paragraphs, $ 12 to $ 25 for book reviews and $ 25 to $ 40 for travel articles and lengthier items. During this early period in his career, he
10584-495: The French writers that he had studied assiduously. Critical reaction and sales were poor. He wrote to Howells that the books had hurt his career rather than helped because they had "reduced the desire, and demand, for my productions to zero". During this time, he became friends with Robert Louis Stevenson , John Singer Sargent , Edmund Gosse , George du Maurier , Paul Bourget , and Constance Fenimore Woolson . His third novel from
10752-538: The James family; she was to write in her journals that "Henry Jr....was very friendly. Being a literary youth he gave me advice, as if he had been eighty, and I a girl." His first published work was a review of a stage performance, "Miss Maggie Mitchell in Fanchon the Cricket ", published in 1863. About a year later, " A Tragedy of Error ", his first short story, was published anonymously. James's first literary payment
10920-628: The New York edition of The American , James describes the development of the story in his mind as exactly such: the "situation" of an American, "some robust but insidiously beguiled and betrayed, some cruelly wronged, compatriot..." with the focus of the story being on the response of this wronged man. The Portrait of a Lady may be an experiment to see what happens when an idealistic young woman suddenly becomes very rich. In many of his tales, characters seem to exemplify alternative futures and possibilities, as most markedly in " The Jolly Corner ", in which
11088-419: The Supreme Court (unlike other retired federal judges who may be permitted to do so in their former courts); neither are they known or designated as a "senior judge". When, after his retirement, William O. Douglas attempted to take a more active role than was customary, maintaining that it was his prerogative to do so because of his senior status, he was rebuffed by Chief Justice Warren Burger and admonished by
11256-597: The Supreme Court of the United States An associate justice of the Supreme Court of the United States is a justice of the Supreme Court of the United States , other than the chief justice of the United States . The number of associate justices is eight, as set by the Judiciary Act of 1869 . Article II, Section 2, Clause 2 of the Constitution of the United States grants plenary power to
11424-489: The Supreme Court. The justices, ordered by seniority, are: An associate justice who leaves the Supreme Court after attaining the age and meeting the service requirements prescribed by federal statute ( 28 U.S.C. § 371 ) may retire rather than resign. After retirement, they keep their title, and by custom may also keep a set of chambers in the Supreme Court building, and employ law clerks. The names of retired associate justices continue to appear alongside those of
11592-422: The U.S. Supreme Court, he wrote only 72 separate opinions, whereas he penned 852 majority opinions—his dissents were often prescient and acquired so much authority that he became known as "The Great Dissenter". Chief Justice Taft complained that "his opinions are short, and not very helpful". Two of his most famous dissents were in Abrams v. United States and Lochner v. New York . Associate justice of
11760-703: The United States. The most important of these was his friendship with the Anglo-Irish Clare Castletown, the Lady Castletown, whose family estate in Ireland, Doneraile Court , he visited several times, and with whom he may have had a brief affair. He formed his closest intellectual friendships with British men and became one of the founders of what was soon called the "sociological" school of jurisprudence in Great Britain, followed
11928-409: The active justices in the bound volumes of Supreme Court decisions. Federal statute ( 28 U.S.C. § 294 ) provides that retired Supreme Court justices may serve—if designated and assigned by the chief justice—on panels of the U.S. courts of appeals, or on the U.S. district courts. Retired justices are not, however, authorized to take part in the consideration or decision of any cases before
12096-407: The actual state of the parties' minds. In contract, as elsewhere, it must go by externals, and judge parties by their conduct." In the book, Holmes set forth his view that the only source of law, properly speaking, was a judicial decision enforced by the state. Judges decided cases on the facts, and then wrote opinions afterward presenting a rationale for their decision. The true basis of the decision
12264-445: The brooding conscientious mentor. In The Portrait of a Lady (1881), James concluded the first phase of his career with a novel that remains his most popular piece of long fiction. The story is of a spirited young American woman, Isabel Archer, who "affronts her destiny" and finds it overwhelming. She inherits a large amount of money and subsequently becomes the victim of Machiavellian scheming by two American expatriates. The narrative
12432-603: The case of Buck v. Bell . In 1881, in The Common Law , Holmes brought together into a coherent whole his earlier articles and lectures concerning the history of the common law (judicial decisions in England and the United States), which he interpreted from the perspective of a practicing lawyer. What counted as law, to a lawyer, was what judges did in particular cases. Law was what the state would enforce, through violence if necessary; echoes of his experience in
12600-428: The case, and it was dismissed by the Court. The chief justice then asked Holmes to write opinions that could be unanimous, upholding convictions in three similar cases, where there were jury findings that speeches or leaflets were published with an intent to obstruct the draft, a crime under the 1917 law. Although there was no evidence that the attempts had succeeded, Holmes, in Schenck v. United States (1919), held for
12768-428: The cases argued before it, and the chief justice's vote counts no more than that of any other justice; however, the chief justice leads the discussion of the case among the justices. Furthermore, the chief justice—when in the majority—decides who writes the court's opinion; otherwise, the senior justice in the majority assigns the writing of a decision. The chief justice also has certain administrative responsibilities that
12936-538: The chief justice and presided over court sessions. Beginning with his first opinion for the Court in Otis v. Parker (1903), Holmes exhibited his tendency to defer to legislatures, which two years later he did most famously in his dissenting opinion in Lochner v. New York (1905). In Otis v. Parker , the Court, in an opinion by Holmes, upheld the constitutionality of a California statute that provided that "all contracts for
13104-412: The class and society from which judges were drawn. In his 1881 book The Common Law , Holmes argued that legal rules are not deduced through formal logic but rather emerge from an active process of human self-government. He expressed this idea most famously in The Common Law with the statement, "The life of the law has not been logic: it has been experience". His philosophy represented a departure from
13272-504: The clear and present danger test, stated in 1969 in Brandenburg v. Ohio , holds that "advocacy of the use of force or of law violation" is protected by the First Amendment "unless such advocacy is directed to inciting or producing imminent lawless action and is likely to incite or produce such action". In Silverthorne Lumber Co. v. United States (1920), Holmes ruled that any evidence obtained, even indirectly, from an illegal search
13440-463: The coming season. After the stresses and disappointment of these efforts, James insisted that he would write no more for the theatre, but within weeks had agreed to write a curtain-raiser for Ellen Terry . This became the one-act "Summersoft", which he later rewrote into a short story, "Covering End", and then expanded into a full-length play, The High Bid , which had a brief run in London in 1907, when James made another concerted effort to write for
13608-442: The community. In the modern world, the advances made in biology and the social sciences should allow a better conscious determination of the results of individual acts and the proper measure of liability for them. This belief in the pronouncements of science concerning social welfare, although he later doubted its applicability to law in many cases, accounts for his enthusiastic endorsement of eugenics in his writings, and his opinion in
13776-428: The courts cannot interfere, unless ... they can see that it 'is a clear, unmistakable infringement of rights secured by the fundamental law.'" In his dissenting opinion in Lochner v. New York (1905), Holmes supported labor, not out of sympathy for workers, but because of his tendency to defer to legislatures. In Lochner , the Court struck down a New York statute that prohibited employees (spelled "employes" at
13944-519: The craft of fiction from him than from anyone else. In July 1861, Henry and Thomas Sergeant Perry paid a visit to an encampment of wounded and invalid Union soldiers on the Rhode Island shore, at Portsmouth Grove ; he took walks and had conversations with numerous soldiers and in later years compared this experience to those of Walt Whitman as a volunteer nurse. In the autumn of 1861, James received an injury, probably to his back, while fighting
14112-411: The death of Associate Justice Horace Gray in July 1902, President Theodore Roosevelt made known his intention to appoint Holmes as Gray's successor; it was the president's stated desire to fill the vacancy with someone from Massachusetts. The nomination was supported by Senator Henry Cabot Lodge , the junior senator from Massachusetts, but was opposed by its senior senator, George Frisbie Hoar , who
14280-505: The deaths of those closest to him, including his sister Alice in 1892; his friend Wolcott Balestier in 1891; and Stevenson and Fenimore Woolson in 1894. The sudden death of Fenimore Woolson in January 1894, and the speculations of suicide surrounding her death, were particularly painful for him. Leon Edel wrote that the reverberations from Fenimore Woolson's death were such that "we can read a strong element of guilt and bewilderment in his letters, and, even more, in those extraordinary tales of
14448-555: The decisions of elected legislatures . Holmes retired from the Court at the age of 90, an unbeaten record for oldest justice on the Supreme Court. He previously served as a Brevet Colonel in the American Civil War , in which he was wounded three times, as an associate justice and chief justice of the Massachusetts Supreme Judicial Court , and as Weld Professor of Law at his alma mater, Harvard Law School . His positions, distinctive personality, and writing style made him
14616-417: The defendants' intent] and enough can be squeezed from these poor and puny anonymities to turn the color of legal litmus paper ... the most nominal punishment seems to me all that possibly could be inflicted, unless the defendants are to be made to suffer, not for what the indictment alleges, but for the creed that they avow ..." Holmes then went on to explain the importance of freedom of thought in
14784-420: The fall of 1882, Holmes became a professor at Harvard Law School , accepting an endowed professorship that had been created for him, largely through the efforts of Louis D. Brandeis . On Friday, December 8, 1882, Supreme Judicial Court of Massachusetts associate justice Otis Lord decided to resign, giving outgoing Republican governor John Davis Long a chance to appoint his successor, if he could do so before
14952-555: The fall, when it became clear that the war would soon end, Holmes enrolled in Harvard Law School , "kicked into the law" by his father, as he later recalled. He attended lectures there for a single year, reading extensively in theoretical works, and then clerked for a year in his cousin Robert Morse's office. In 1866, he received a Bachelor of Laws degree from Harvard, was admitted to the Massachusetts bar, and after
15120-563: The family travelled in Europe. A tutor of the James children in Paris, M. Lerambert, had written a volume of verse that was well reviewed by Sainte-Beuve. Their longest stays were in France, where Henry began to feel at home and became fluent in French. He had a stutter, which seems to have manifested itself only when he spoke English; in French, he did not stutter. In the summer of 1857, the James family went to Boulogne-sur-Mer, where they set up house at No. 20 Rue Neuve Chaussée, and where Henry
15288-591: The father's current interests and publishing ventures, retreating to the United States when funds were low. The James family arrived in Paris in July 1855 and took rooms at a hotel in the Rue de la Paix. Some time between 1856 and 1857, when William was fourteen and Henry thirteen, the two brothers visited the Louvre and the Luxembourg Palace. Henry studied primarily with tutors, and briefly attended schools while
15456-498: The first instalment of David Copperfield aloud to the elders of the family: Henry Junior had sneaked down from his bedroom to listen surreptitiously to the reading, until a scene involving the Murdstones led him to "loud[ly] sob," whereupon he was discovered and sent back to bed. Between 1855 and 1860, the James household travelled to London, Paris, Geneva , Boulogne-sur-Mer , Bonn , and Newport, Rhode Island , according to
15624-416: The history of the common law: The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed. The law embodies
15792-566: The inaugural issue of the journal. Henry Junior was later to describe his friendship with Godkin as "one of the longest and happiest of my life." In 1871, he published his first novel, Watch and Ward , in serial form in the Atlantic Monthly . The novel was later published in book form in 1878. During a 14-month trip through Europe in 1869–70, he met John Ruskin , Charles Dickens , Matthew Arnold , William Morris , and George Eliot . Rome impressed him profoundly. "Here I am then in
15960-436: The infinite." "The common law is not a brooding omnipresence in the sky." Rather than a set of abstract, rational, mathematical, or in any way unworldly set of principles, Holmes said: "[T]he prophecies of what the courts will do in fact, and nothing more pretentious, are what I mean by the law." His belief that law, properly speaking, was a set of generalizations from what judges had done in similar cases, determined his view of
16128-474: The internal states of mind and social dynamics of his characters, James often wrote in a style in which ambiguous or contradictory motives and impressions were overlaid or juxtaposed in the discussion of a character's psyche. For their unique ambiguity, as well as for other aspects of their composition, his late works have been compared to Impressionist painting . His novella The Turn of the Screw has garnered
16296-677: The late style difficult and unnecessary; his friend Edith Wharton , who admired him greatly, said that some passages in his work were all but incomprehensible. James was harshly portrayed by H. G. Wells as a hippopotamus laboriously attempting to pick up a pea that had got into a corner of its cage. The "late James" style was ably parodied by Max Beerbohm in "The Mote in the Middle Distance". More important for his work overall may have been his position as an expatriate , and in other ways an outsider, living in Europe. While he came from middle-class and provincial beginnings (seen from
16464-567: The later advocates of legal realism and made him one of the early founders of law and economics jurisprudence. Holmes famously contrasted his own scholarship with the abstract doctrines of Christopher Columbus Langdell , dean of Harvard Law School, who viewed the common law as a self-enclosed set of doctrines. Holmes viewed Langdell's work as akin to the German philosophic idealism he had for so long resisted, opposing it with his own scientific materialism. Albert Alschuler , however, wrote, "Langdell
16632-789: The latter introducing him to the Travellers' and the Reform Clubs . He was also an honorary member of the Savile Club , St James's Club and, in 1882, the Athenaeum Club . In England, he met the leading figures of politics and culture. He continued to be a prolific writer, producing The American (1877), The Europeans (1878), a revision of Watch and Ward (1878), French Poets and Novelists (1878), Hawthorne (1879), and several shorter works of fiction. In 1878, Daisy Miller established his fame on both sides of
16800-615: The law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, a hint of the universal law. Oliver Wendell Holmes Jr, "The Path of the Law", 10 Harvard Law Review 457, 478 (1897) Holmes was considered for a federal court judgeship in 1878 by President Rutherford B. Hayes , but Massachusetts Senator George Frisbie Hoar persuaded Hayes to nominate another candidate. In
16968-489: The law has not been logic: it has been experience," a moral skeptic , and an opponent of the doctrine of natural law . His jurisprudence and academic writing influenced much subsequent American legal thinking, including the judicial consensus upholding New Deal regulatory law and the influential American schools of pragmatism , critical legal studies , and law and economics . Holmes was born in Boston , Massachusetts , to
17136-469: The majority had reached its decision on the basis of the economic theory of laissez faire , but that the Constitution does not prevent the states from interfering with the liberty to contract. "The Fourteenth Amendment", Holmes wrote, "does not enact Mr. Herbert Spencer 's Social Statics ", which advocates laissez faire . In a series of opinions surrounding the World War I Espionage Act of 1917 and
17304-481: The majority of the court opposed Holmes and sided with Roosevelt's belief that Northern Securities violated the Sherman Antitrust Act. The dissent by Holmes permanently damaged his formerly close relationship with Roosevelt. Holmes was known for his pithy, frequently quoted opinions. In more than twenty-nine years on the Supreme Court bench, he ruled on cases spanning the whole range of federal law. He
17472-404: The masterwork The Portrait of a Lady , his style was simple and direct (by the standards of Victorian magazine writing) and he experimented widely with forms and methods, generally narrating from a conventionally omniscient point of view. Plots generally concern romance, except for the three big novels of social commentary that conclude this period. In the second period, as noted above, he abandoned
17640-432: The meanest intelligence—I love you more than I love Others." To his New York friend Mary Cadwalader Rawle Jones : "Dearest Mary Cadwalader. I yearn over you, but I yearn in vain; & your long silence really breaks my heart, mystifies, depresses, almost alarms me, to the point even of making me wonder if poor unconscious & doting old Célimare [Jones's pet name for James] has 'done' anything, in some dark somnambulism of
17808-518: The medical school. In 1862, Henry attended Harvard Law School , but realised that he was not interested in studying law. He pursued his interest in literature and associated with authors and critics William Dean Howells and Charles Eliot Norton in Boston and Cambridge and formed lifelong friendships with Oliver Wendell Holmes Jr. , the future Supreme Court justice, and with James T. Fields and Annie Adams Fields , his first professional mentors. In 1865, Louisa May Alcott visited Boston and dined with
17976-427: The memorable maxim that " free speech would not protect a man in falsely shouting fire in a theatre and causing a panic " and formulating the groundbreaking " clear and present danger " test. Later that same year, in his famous dissent in Abrams v. United States (1919), he wrote that "the best test of truth is the power of the thought to get itself accepted in the competition of the market ... That, at any rate,
18144-509: The next half-dozen years, " The Altar of the Dead " and " The Beast in the Jungle ". The years spent on dramatic works were not entirely a loss. As he moved into the last phase of his career, he found ways to adapt dramatic techniques into the novel form. In the late 1880s and throughout the 1890s, James made several trips through Europe. He spent a long stay in Italy in 1887. In 1888, he published
18312-407: The other justices do not and is paid slightly more ($ 298,500 per year as of 2023, compared to $ 285,400 per year for an associate justice). Associate justices have seniority in order of the date their respective commissions bear, although the chief justice is always considered to be the most senior justice. If two justices are commissioned on the same day, the elder is designated the senior justice of
18480-775: The outbreak of the First World War in 1914, he did war work. In 1915, he became a British citizen and was awarded the Order of Merit the following year. He died on 28 February 1916, in Chelsea, London , and was cremated at Golders Green Crematorium . A memorial was built to him in Chelsea Old Church . He had requested that his ashes be buried in Cambridge Cemetery in Massachusetts. This was not legally possible, but William's wife smuggled his ashes onboard
18648-468: The permission of James's family. Edel's portrayal of James included the suggestion he was celibate, a view first propounded by critic Saul Rosenzweig in 1943. In 1996, Sheldon M. Novick published Henry James: The Young Master , followed by Henry James: The Mature Master (2007). The first book "caused something of an uproar in Jamesian circles" as it challenged the previous received notion of celibacy,
18816-461: The perspective of European polite society), he worked very hard to gain access to all levels of society, and the settings of his fiction range from working-class to aristocratic , and often describe the efforts of middle-class Americans to make their way in European capitals. He confessed he got some of his best story ideas from gossip at the dinner table or at country house weekends. He worked for
18984-471: The pragmatic basis of the common-law privileges extended to speech and the press, which could be defeated by a showing of malice, or of specific intent to harm. Famously, he observed in McAuliffe v. Mayor of New Bedford (1892) that a policeman "may have a constitutional right to talk politics, but he has no constitutional right to be a policeman". He also published an address, " The Path of the Law ", which
19152-502: The precedents already set in Schenck and the other cases in which Holmes had written for the Court, but Holmes insisted that the defendants' leaflets neither threatened to cause any harm nor showed a specific intent to hinder the war effort. Holmes condemned the Wilson Administration's prosecution and its insistence on draconian sentences for the defendants in passionate language: "Even if I am technically wrong [regarding
19320-415: The presentation of conflicts of moral character, which they do not concern themselves about softening or averting. They do not indict society for these situations: they regard them as universal and inevitable. They do not even blame God for allowing them: they accept them as the conditions of life. Many of James's stories may also be seen as psychological thought experiments about selection. In his preface to
19488-445: The prevailing jurisprudence of the time: legal formalism , which held that law was an orderly system of rules from which decisions in particular cases could be deduced. Holmes sought to consciously reinvent the common law – to modernize it as a tool for adjusting to the changing nature of modern life, as judges of the past had done more or less unconsciously. He has been classed with the philosophic pragmatists, although pragmatism
19656-515: The prominent writer and physician Oliver Wendell Holmes Sr. and Amelia Lee Jackson Holmes. Both his parents were of English descent, and all his ancestors had come to North America from England during the early colonial period as part of the Puritan migration to New England . His mother opposed slavery and fulfilled her domestic role as traditionally understood. Dr. Holmes was a leading figure in Boston intellectual and literary circles. Mrs. Holmes
19824-407: The proposition that the Court does not recognize an "unlimited right to do with one's body as one pleases". However, although Buck v. Bell has not been overturned, "the Supreme Court has distinguished the case out of existence". From his earliest writings, Holmes demonstrated a lifelong belief that the decisions of judges were consciously or unconsciously result-oriented and reflected the mores of
19992-460: The protagonist and a ghost-doppelganger live alternative American and European lives; and in others, like The Ambassadors, an older James seems fondly to regard his own younger self facing a crucial moment. The first period of James's fiction, usually considered to have culminated in The Portrait of a Lady , concentrated on the contrast between Europe and America. The style of these novels
20160-607: The public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, to prevent our being swamped with incompetence. It is better for all the world if, instead of waiting to execute degenerate offspring for crime or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination
20328-637: The publication of The Portrait of a Lady through the end of the 19th century, features less popular novels, including The Princess Casamassima , published serially in The Atlantic Monthly in 1885–1886, and The Bostonians , published serially in The Century during the same period. This period also featured James's celebrated Gothic novella, The Turn of the Screw (1898). The third period of James's career reached its most significant achievement in three novels published just around
20496-558: The publication of The Europeans , Washington Square , Confidence and The Portrait of a Lady . The period from 1882 to 1883 was marked by several losses. His mother died in January 1882, while James was in Washington, D.C., on an extended visit to America. He returned to his parents' home in Cambridge , where he was together with all four of his siblings for the first time in 15 years. He returned to Europe in mid-1882, but
20664-401: The rights of man in a moral sense are equally rights in the sense of the Constitution and the law". Holmes said, "I think our morally tinted words have caused a great deal of confused thinking". Nevertheless, in rejecting morality as a form of natural law outside of and superior to human enactments, Holmes was not rejecting moral principles that were the result of enforceable law: "The law is
20832-403: The sales of shares of the capital stock of any corporation or association on margin, or to be delivered at a future day, shall be void ...." Holmes he wrote that, as a general proposition, "neither a state legislature nor a state constitution can interfere arbitrarily with private business or transactions .... But general propositions do not carry us far. While the courts must exercise
21000-600: The serialised novel and from 1890 to about 1897, he wrote short stories and plays. Finally, in his third and last period he returned to the long, serialised novel. Beginning in the second period, but most noticeably in the third; he increasingly abandoned direct statement in favour of frequent double negatives, and complex descriptive imagery. Single paragraphs began to run for page after page, in which an initial noun would be succeeded by pronouns surrounded by clouds of adjectives and prepositional clauses, far from their original referents, and verbs would be deferred and then preceded by
21168-490: The short novel The Aspern Papers and The Reverberator . In 1897–1898, he moved to Rye, Sussex and wrote The Turn of the Screw ; 1899–1900 had the publication of The Awkward Age and The Sacred Fount . During 1902–1904, he wrote The Wings of the Dove , The Ambassadors , and The Golden Bowl . In 1904, he revisited America and lectured on Balzac. In 1906–1910, he published The American Scene and edited
21336-472: The spirit, which has ... given you a bad moment, or a wrong impression, or a 'colourable pretext' ... However these things may be, he loves you as tenderly as ever; nothing, to the end of time, will ever detach him from you, & he remembers those Eleventh St. matutinal intimes hours, those telephonic matinées, as the most romantic of his life ..." His long friendship with American novelist Constance Fenimore Woolson , in whose house he lived for
21504-523: The spring of that year, after President Abraham Lincoln called for volunteers following the firing on Fort Sumter , he enlisted in the Massachusetts militia but returned briefly to Harvard College to participate in commencement exercises. During his senior year of college, at the outset of the American Civil War , Holmes enlisted in the Fourth Battalion of Infantry in the Massachusetts militia, then in July 1861, with his father's help, received
21672-439: The stage. He wrote three new plays, two of which were in production when the death of Edward VII on 6 May 1910 plunged London into mourning and theatres closed. Discouraged by failing health and the stresses of theatrical work, James did not renew his efforts in the theatre, but recycled his plays as successful novels. The Outcry was a best-seller in the United States when it was published in 1911. During 1890–1893, when he
21840-453: The start of the 20th century: The Wings of the Dove (1902), The Ambassadors (1903), and The Golden Bowl (1904). Critic F. O. Matthiessen called this "trilogy" James's major phase, and these novels have certainly received intense critical study. The second-written of the books, The Wings of the Dove , was the first published because it was not serialised. This novel tells the story of Milly Theale, an American heiress stricken with
22008-455: The statute requiring sterilization of institutionalized persons was unconstitutional, violating what today is called " substantive due process ". Holmes repeated familiar arguments that statutes would not be struck down if they appeared on their face to have a reasonable basis. In support of his argument that the interest of "public welfare" outweighs the interest of individuals in their bodily integrity, he argued: We have seen more than once that
22176-405: The story of a nation's development through many centuries, and it cannot be dealt with as if it contained only the axioms and corollaries of a book of mathematics. In The Common Law , Holmes wrote that, even though the law "uses the language of morality, it necessarily ends in external standards not dependent on the consciousness of the individual" or on his moral culpability. Foreseeability of harm
22344-414: The suggestion of celibacy went against James's own injunction "live!"—not "fantasize!" A letter James wrote in old age to Hugh Walpole has been cited as an explicit statement of this. Walpole confessed to him of indulging in "high jinks", and James wrote a reply endorsing it: "We must know, as much as possible, in our beautiful art, yours & mine, what we are talking about—& the only way to know it
22512-578: The surrounding countryside, which feature in his essay "Abbeys and Castles". In particular, the gloomy monastic fishponds behind the abbey are said to have inspired the lake in The Turn of the Screw . While living in London, James continued to follow the careers of the French realists, Émile Zola in particular. Their stylistic methods influenced his own work in the years to come. Hawthorne's influence on him faded during this period, replaced by George Eliot and Ivan Turgenev. The period from 1878 to 1881 had
22680-459: The third volume of Daudet's adventures of Tartarin de Tarascon . Serialized in Harper's Monthly from June 1890, this translation – praised as "clever" by The Spectator – was published in January 1891 by Sampson Low, Marston, Searle & Rivington . After the stage failure of Guy Domville in 1895, James was near despair and thoughts of death plagued him. His depression was compounded by
22848-574: The time) from being required or permitted to work in a bakery more than sixty hours a week. The majority found that the statute "interferes with the right of contract between the employer and employes", and that the right of contract, though not explicit in the Constitution, "is part of the liberty of the individual protected by the Fourteenth Amendment", under which no state may "deprive any person of life, liberty, or property, without due process of law." In his brief dissent, Holmes said that
23016-424: The two. Currently, the senior associate justice is Clarence Thomas . By tradition, when the justices are in conference deliberating the outcome of cases before the Supreme Court, the justices state their views in order of seniority. The senior associate justice is also tasked with carrying out the chief justice's duties when he is unable to, or if that office is vacant. There are currently eight associate justices on
23184-460: The utilitarian view that law was a set of commands of the sovereign, rules of conduct that became legal duties. He rejected as well the views of the German idealist philosophers, whose views were then widely held, and the philosophy taught at Harvard, that the opinions of judges could be harmonized in a purely logical system. In the opening paragraphs of the book, he famously summarized his own view of
23352-404: The vivid realisation of the three major characters: Roderick Hudson, superbly gifted but unstable and unreliable; Rowland Mallet, Roderick's limited but much more mature friend and patron; and Christina Light, one of James's most enchanting and maddening femmes fatales . The pair of Hudson and Mallet has been seen as representing the two sides of James's own nature: the wildly imaginative artist and
23520-472: The whole Court. There are currently three living retired associate justices: David Souter , retired June 29, 2009; Anthony Kennedy , retired July 31, 2018; and Stephen Breyer , retired June 30, 2022. Souter has served on panels of the First Circuit Courts of Appeals following his retirement; Kennedy and Breyer have not performed any judicial duties since retiring. Since the Supreme Court
23688-411: The witness and external deposit of our moral life. Its history is the history of the moral development of the race. The practice of it, in spite of popular jests, tends to make good citizens and good men. When I emphasize the difference between law and morals I do so with reference to a single end, that of learning and understanding the law." Holmes's insistence on the material basis of law, on the facts of
23856-521: The words and a dictionary but by considering their origin and the line of their growth. Holmes also insisted on the separation of "ought" and "is" , confusion of which he saw as an obstacle in understanding the realities of the law. "The law is full of phraseology drawn from morals, and talks about rights and duties , malice , intent , and negligence – and nothing is easier in legal reasoning than to take these words in their moral sense". "Therefore nothing but confusion can result from assuming that
24024-429: The workman has a reasonable cause to believe that the space below is a private yard from which everyone is excluded, and which is used as a rubbish-heap, his act is not blameworthy, and the homicide is a mere misadventure. This "objective standard" adopted by common-law judges, Holmes thought, reflected a shift in community standards , away from condemnation of a person's act toward an impersonal assessment of its value to
24192-638: Was Alice . Both of his parents were of Irish and Scottish descent. Before he was a year old, his father sold the house at Washington Place and took the family to Europe, where they lived for a time in a cottage in Windsor Great Park in England. The family returned to New York in 1845, and Henry spent much of his childhood living between his paternal grandmother's home in Albany, and a house, 58 West Fourteenth Street , in Manhattan. A painting of
24360-532: Was General Wright who brusquely ordered Lincoln to safety. But for a certainty, the 6 foot 4 inch Lincoln, in frock coat and top hat, stood peering through field glasses from behind a parapet at the onrushing rebels.") and other sources state he likely was not present on the day Lincoln visited Fort Stevens. In the summer of 1864, Holmes returned to the family home in Boston, wrote poetry, and debated philosophy with his friend William James , pursuing his debate with philosophic idealism, and considered re-enlisting. By
24528-402: Was a regular customer at an English lending library. In the autumn of that year, Henry Senior wrote from Boulogne to a friend that "Henry is not so fond of study, properly so-called, as of reading...He is a devourer of libraries, and an immense writer of novels and dramas. He has considerable talent as a writer, but I am at a loss to know whether he will ever accomplish much." William recorded in
24696-415: Was adhering to his own precedent, some later commentators accused Holmes of inconsistency, even of seeking to curry favor with his young admirers. In Abrams , the majority opinion relied on the clear-and-present-danger formulation of Schenck , claiming that the leaflets showed the necessary intent, and ignoring that they were unlikely to have any effect. By contrast, the Supreme Court's current formulation of
24864-569: Was also chairman of the Senate Judiciary Committee . Hoar was a strenuous opponent of imperialism, and the legality of the annexation of Puerto Rico and the Philippines was expected to come before the Court. Lodge, like Roosevelt, was a strong supporter of imperialism, which Holmes was expected to support as well. Despite Hoar's opposition, the president moved ahead on the matter. On December 2, 1902, he formally submitted
25032-497: Was back in America by the end of the year following the death of his father. Emerson, an old family friend, died in 1882. His brother Wilkie and friend Turgenev both died in 1883. In 1884, James made another visit to Paris, where he met again with Zola, Daudet, and Goncourt. He had been following the careers of the French "realist" or "naturalist" writers, and was increasingly influenced by them. In 1886, he published The Bostonians and The Princess Casamassima , both influenced by
25200-459: Was claimed to be mentally defective. Later scholarship has shown that the suit was collusive, in that "two eugenics enthusiasts ... had chosen Buck as a bit player in a test case that they had devised" and "had asked Buck's guardian to challenge [the Virginia sterilization law]". In addition, Carrie Buck was probably of normal intelligence. The argument made on her behalf was principally that
25368-709: Was connected to the leading families; Henry James Sr. , Ralph Waldo Emerson , and other transcendentalists were family friends. Known as "Wendell" in his youth, Holmes became lifelong friends with the brothers William James and Henry James Jr. Holmes accordingly grew up in an atmosphere of intellectual achievement and early on formed the ambition to be a man of letters like Emerson. He retained an interest in writing poetry throughout his life. While still in Harvard College he wrote essays on philosophic themes and asked Emerson to read his attack on Plato 's idealist philosophy. Emerson famously replied, "If you strike at
25536-432: Was essentially a shy and private woman [and] stand-offish.... As she grew older, her inclination to solitude became more pronounced, and in time she became a virtual recluse...". Whenever he could, Holmes visited London during the social season of spring and summer, and during his years as a lawyer and judge in Boston he formed romantic friendships with English women of the nobility, with whom he corresponded while at home in
25704-419: Was established in 1789, the following 104 persons have served as an associate justice: Henry James Henry James OM ( ( 1843-04-15 ) 15 April 1843 – ( 1916-02-28 ) 28 February 1916) was an American-British author. He is regarded as a key transitional figure between literary realism and literary modernism , and is considered by many to be among the greatest novelists in the English language. He
25872-569: Was for an appreciation of Sir Walter Scott's novels, written for the North American Review . He wrote fiction and nonfiction pieces for The Nation and Atlantic Monthly , where Fields was editor. In 1865, Ernest Lawrence Godkin , the founder of The Nation , visited the James family at their Boston residence in Ashburton Place; the purpose of his visit was to solicit contributions from Henry Senior and Henry Junior for
26040-629: Was inadmissible in court. He reasoned that otherwise, police would have an incentive to circumvent the Fourth Amendment to obtain derivatives of the illegally obtained evidence. This later became known as the " fruit of the poisonous tree " doctrine. In 1927, Holmes wrote the 8–1 majority opinion in Buck v. Bell , a case that upheld the Virginia Sterilization Act of 1924 and the forced sterilization of Carrie Buck , who
26208-575: Was influenced by Nathaniel Hawthorne . In the fall of 1875, he moved to the Latin Quarter of Paris . Aside from two trips to America, he spent the next three decades—the rest of his life—in Europe. In Paris, he met Zola , Daudet , Maupassant , Turgenev and others. He stayed in Paris only a year before settling in London, where he established relationships with Macmillan and other publishers, who paid for serial instalments that they published in book form. The audience for these serialised novels
26376-443: Was innocent of the charge ... of attempting to deduce law from a priori premises". We cannot all be Descartes or Kant , but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food beside success. The remoter and more general aspects of
26544-471: Was intelligent and steadfastly congenial. He was a lecturer and philosopher who had inherited independent means from his father, an Albany banker and investor. Mary came from a wealthy family long settled in New York City. Her sister Katherine lived with her adult family for an extended period of time. Henry Jr. was one of four boys, the others being William , who was one year his senior, and younger brothers Wilkinson ( Wilkie ) and Robertson. His younger sister
26712-424: Was involved, and coercion was not exerted through impermissible means such as secondary boycotts, stating in his opinions that fundamental fairness required that workers be allowed to combine to compete on an equal footing with employers. He continued to give speeches and to write articles that added to or extended his work on the common law, most notably "Privilege, Malice and Intent", in which he presented his view of
26880-444: Was itself the symptom of some fear of or scruple against sexual love on his part." Dupee used an episode from James's memoir, A Small Boy and Others, recounting a dream of a Napoleonic image in the Louvre, to exemplify James's romanticism about Europe, a Napoleonic fantasy into which he fled. Between 1953 and 1972, Leon Edel wrote a major five-volume biography of James, which used unpublished letters and documents after Edel gained
27048-418: Was largely made up of middle-class women, and James struggled to fashion serious literary work within the strictures imposed by editors' and publishers' notions of what was suitable for young women to read. He lived in rented rooms, but was able to join gentlemen's clubs that had libraries and where he could entertain male friends. He was introduced to English society by Henry Adams and Charles Milnes Gaskell ,
27216-435: Was most engaged with the theatre, James wrote a good deal of theatrical criticism, and assisted Elizabeth Robins and others in translating and producing Henrik Ibsen for the first time in London. Leon Edel argued in his psychoanalytic biography that James was traumatised by the opening-night uproar that greeted Guy Domville , and that it plunged him into a prolonged depression. The successful later novels, in Edel's view, were
27384-421: Was mustered out at the end of his enlistment term, returning to Boston and enrolling at Harvard Law School later that year. Holmes is said to have shouted to Abraham Lincoln to take cover during the Battle of Fort Stevens , although this is commonly regarded as apocryphal. Holmes himself expressed uncertainty about who had warned Lincoln ("Some say it was an enlisted man who shouted at Lincoln; others suggest it
27552-435: Was often an "inarticulate major premise", however. A judge was obliged to choose between contending legal arguments, each posed in absolute terms, and the true basis of his decision was sometimes drawn from outside the law, when precedents were lacking or were evenly divided. The common law evolves because civilized society evolves, and judges share the common preconceptions of the governing class. These views endeared Holmes to
27720-474: Was particularly interested in what he called the "beautiful and blest nouvelle ", or the longer form of short narrative. Still, he produced a number of very short stories in which he achieved notable compression of sometimes complex subjects. The following narratives are representative of James's achievement in the shorter forms of fiction. At several points in his career, James wrote plays, beginning with one-act plays written for periodicals in 1869 and 1871 and
27888-435: Was the key: "the general basis of criminal liability was knowledge, at the time of action, of facts from which common experience showed that certain harmful results were likely to follow." Tort liability, similarly, was imposed when circumstances were "such as would have led a prudent man to perceive danger, although not necessarily to foresee the specific harm". Likewise, with respect to contracts, "The law has nothing to do with
28056-449: Was the son of Henry James Sr. and the brother of philosopher and psychologist William James and diarist Alice James . He is best known for his novels dealing with the social and marital interplay between émigré Americans, the English, and continental Europeans, such as The Portrait of a Lady . His later works, such as The Ambassadors , The Wings of the Dove and The Golden Bowl were increasingly experimental. In describing
28224-541: Was vigorously prosecuting those suspected of sympathies with the recent Russian Revolution , as well as opponents of the war against Germany. The defendants in this case were socialists and anarchists, recent immigrants from Russia who opposed the apparent efforts of the United States to intervene in the Russian Civil War . They were charged with violating the Sedition Act of 1918, which was an amendment to
#772227