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The Great Dissent



Awards: Christian Science Monitor Best Books of the Year ; Kirkus Reviews Best Books of the Year

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About The Author

Thomas HealyThomas Healy

Thomas Healy is a professor of law at Seton Hall Law School. A graduate of Columbia Law School, he clerked on the U.S. Court of Appeals for the Ninth Circuit and was a Supreme Court correspondent for The Baltimore Sun. He has written extensively about free speech, the... More

photo: Sean Sime

Awards

Christian Science Monitor Best Books of the Year
Kirkus Reviews Best Books of the Year

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EXCERPT

Prologue
An Unexpected Visit

On Friday, November 7, 1919, as federal agents launched a nationwide raid on the homes and meeting halls of Russian immigrants, three members of the United States Supreme Court mounted the steps of a redbrick town house in Washington, D.C., just blocks away from the White House. Unlike the agents, who had been dispatched by an ambitious young official named J. Edgar Hoover, the justices were not hunting for communists. They were there to call on their colleague Oliver Wendell Holmes Jr., Boston Brahmin, Civil War veteran, and sage of the common law. But their visit, unusual and unexpected, was linked to the larger mission being carried out that day, and, to the justices at least, it was every bit as important.

They were greeted by Holmes’s wife, Fanny, and led up the steep stairs to the second floor, where Holmes had his study. In those days, the justices did not have offices at the Supreme Court; instead they researched and wrote their opinions at home, sending notes and drafts to one another by messenger. Holmes’s study was spacious and bright, two high-ceilinged rooms connected by sliding double doors. In the rear room, looking out over a small garden, stood a cherrywood desk that had belonged to his grandfather, a judge on the Massachusetts Supreme Judicial Court, as well as an old-fashioned upright desk. This is where Holmes worked, alternating between the two desks and a comfortable leather chair in front of the fireplace. On the mantel were photographs of several young female friends, and high above them hung two crossed swords, one used by his great grandfather during the French and Indian War and another carried by Holmes himself during the Civil War. Through the doors was a smaller room where his secretary worked at a desk handed down by Holmes’s father, the famous doctor and author. Bookshelves lined both rooms, climbing the walls and wrapping around the windows and doorways like ivy. Their shelves were packed tight with books—more than ten thousand volumes in all, mostly law, philosophy, and history, but also the occasional detective story or racy French novel.

Because the Court term was under way, Holmes was dressed in a morning coat with a stiff white shirt and high collar. He welcomed his visitors into the study and motioned to his secretary, Stanley Morrison, to stay in the adjoining room with the doors open. Like nearly all the rest of Holmes’s secretaries, Morrison was a recent graduate of Harvard Law School who had been handpicked for the job by a trusted faculty member. He was also the friend of another Court secretary that year by the name of Dean Acheson, and after the visit he told Acheson what had happened. Acheson, of course, went on to achieve his own fame as secretary of state during the Cold War, and when he wrote a memoir of his early years in Washington he recounted the incident, which is how we know about it today.

After they were seated and had exchanged pleasantries, the three justices—Willis Van Devanter, Mahlon Pitney, and a third whose name Acheson could not remember—explained the reason for their visit. The day before, Holmes had circulated a dissenting opinion in a case the Court had heard two weeks earlier. It was an important case testing the government’s power to punish the anarchists and agitators who had spoken out against the recent war. And for most members of the Court, it was an easy case. Of course the government could punish such troublemakers. Freedom of speech was not absolute, and if the defendants had intended to disrupt the war, they deserved to be treated as criminals.

The majority of the Court, and anyone who followed its decisions, might have expected Holmes to agree. After all, just nine months earlier he had written three opinions for the Court saying pretty much the same thing. One of those cases was an appeal by Eugene V. Debs, the leader of the Socialist Party and a frequent candidate for president, who had been sentenced to ten years in prison for a speech he had given in the summer of 1918. It was essentially a stump speech, an effort to fire up the base in advance of the fall elections, and Debs had chosen his words carefully. He said nothing that explicitly urged interference with the war, though he did praise party members who had opposed the draft. For Holmes, that had been enough. In a short and dismissive opinion, he had accepted the jury’s verdict that Debs meant to illegally obstruct military recruiting and had affirmed his conviction.

So when the Court heard arguments in the anarchists’ case, few people expected Holmes to side with the defendants. But something had changed. Instead of voting with the majority, Holmes said the convictions should be reversed. The defendants had no intent to undermine the fight against Germany, he explained. They were merely upset with President Wilson’s decision to intervene in the Russian Revolution. Besides, he argued, their speech was protected by the First Amendment. This last point was no small matter. In spite of its seemingly clear command—“Congress shall make no law . . . abridging the freedom of speech”—the First Amendment at that time was still largely an unfulfilled promise. The Supreme Court itself had never ruled in favor of a free speech claim, and lower courts had approved all manner of speech restrictions, including the censorship of books and films, the prohibition of street corner speeches, and assorted bans on labor protests, profanity, and commercial advertising. Even criticism of government officials could be punished, the courts had ruled, if it threatened public order and morality. But now, with the country gripped by fear of the communist threat, Holmes was proposing something radical: an expansive interpretation of the First Amendment that would protect all but the most immediately dangerous speech. His opinion was passionate and powerful, especially the long concluding paragraph. This began strangely, incongruently, as though Holmes were making the case against free speech, not for it:

Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. To allow opposition by speech seems to indicate that you think the speech impotent, as when a man says that he has squared the circle, or that you do not care whole heartedly for the result, or that you doubt either your power or your premises—

Then, just as the reader began to blink in confusion, wondering if something had gone wrong, if perhaps the printer had made an error, Holmes suddenly—brilliantly—changed direction:

But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct 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. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. Every year if not every day we have to wager our salvation upon some prophecy based upon imperfect knowledge. While that experiment is part of our system I think that we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the country.

No one else on the Court wrote like this. Only Holmes could translate the law into such stirring, unforgettable language. Yet even by his high standards this was unusually fine, and his colleagues worried about the effect it might have. Although the war had ended a year earlier, the country was still in a fragile state. There had been race riots that summer, labor strikes that fall. A bomb had exploded on the attorney general’s doorstep—the opening strike, the papers warned, in a grand Bolshevik plot. A dissent like this, from a figure as venerable as Holmes, might weaken the country’s resolve and give comfort to the enemy. The nation’s security was at stake, the justices told Holmes. As an old soldier, he should close ranks and set aside his personal views. They even appealed to Fanny, who nodded her head in agreement. The tone of their plea was friendly, even affectionate, and Holmes listened thoughtfully. He had always respected the institution of the Court and more than once had suppressed his own beliefs for the sake of unanimity. But this time he felt a duty to speak his mind. He told his colleagues he regretted he could not join them, and they left without pressing him further.

Three days later, Holmes read his dissent in Abrams v. United States from the bench. As expected, it caused a sensation. Conservatives denounced it as dangerous and extreme. Progressives hailed it as a monument to liberty. And the future of free speech was forever changed.

The justices’ visit to Holmes is a remarkable piece of constitutional history. Nowhere else in the annals of the Supreme Court has there been such a personal appeal to one justice by a group of his colleagues. That it took place in the privacy of Holmes’s study, in the presence of his wife—that the justices sought her help with their appeal—only heightens the intrigue.

And yet, the visit isn’t the most surprising part of the story. What is truly remarkable is that the justices had reason to be there in the first place. Contrary to the popular view of him today as a great civil libertarian, Holmes was not always a staunch defender of free speech. In fact, prior to his dissent in Abrams he had done as much as any judge to render the First Amendment toothless. In one of the first Court opinions to address the topic, he had embraced the cramped English view that freedom of speech prohibits only prepublication censorship but places no limits on the government’s power to punish speakers after the fact. In another case, he had affirmed the conviction of a small-time anarchist for inciting . . . nude sunbathing. His earlier opinions as a judge on the Massachusetts Supreme Court were no different. When a policeman complained that he had been fired for expressing his political views, Holmes had famously responded, “The petitioner may have a constitutional right to talk politics, but he has no constitutional right to be a policeman.”

It wasn’t that Holmes had a particular dislike of free speech. He disdained all constitutional rights. His most well-known opinions (dissents, all) had come in a long line of cases involving progressive labor laws. The conservative majority of the Court had repeatedly invalidated these laws, arguing that minimum-wage and maximum-hour regulations deprived businessmen and workers of their “liberty”—the ability to sell or buy labor on whatever terms they wished—and thus violated the Fourteenth Amendment. Of course, the laissez-faire conservatives cared little about the “right” of employees to work fourteen-hour days at rock-bottom wages; they were really protecting the ability of employers to get cheap labor. But while Holmes’s dissents in these cases made him a hero to progressives, he was not motivated by any sympathy for the common workers, the “thick-fingered clowns,” as he once called them. What irked him about those decisions was the focus on individual rights in general, implying that there are limits on what a democratic majority can do. Holmes would have none of it. “Every society rests on the death of men,” he liked to say. If a nation needs soldiers, it seizes young men and marches them off to war at the point of a bayonet. If an epidemic breaks out, it forces the public to get vaccinated. The same is true, Holmes thought, even when there is no emergency. If the majority, acting through its elected lawmakers, wants to limit the workday of bakers to ten hours, it should be permitted to do so, regardless of whether that decision is misguided or conflicts with some ideal of freedom. And he, as a judge, had no business standing in the way. “If my fellow citizens want to go to Hell I will help them,” was another favorite saying. “It’s my job.”

In short, Holmes was in many ways the justice least likely to stick his neck out for the right of free speech—and for the Court’s role in enforcing that right. So why did he do it? Why did a man who sneered at liberal sentimentality his whole life write one of the canonical statements of American liberalism, a document that has been compared to the speeches of Lincoln and the essays of Milton? Was his opinion somehow consistent with everything he had said and done throughout his life? Or did Holmes undergo a conversion of sorts? And if so, what triggered his sudden change of mind? Was it something he read? Something he witnessed? Something he remembered from his past?

These are not mere idle psychological questions. Holmes’s dissent in Abrams marked not just a personal transformation but the start of a national transformation as well. The power of his words and the force of his personality gave his opinion an authority far beyond the normal judicial dissent. Civil libertarians immediately embraced it as an article of faith, and Holmes’s tribute to the “free trade in ideas,” along with his concept of “clear and present danger,” became not only cultural catchphrases but, in time, the law of the land. Indeed, it is no exaggeration to say that Holmes’s dissent—the most important minority opinion in American legal history—gave birth to the modern era of the First Amendment, in which the freedom to express oneself is our preeminent constitutional value and a defining national trait. Nor can it be disputed that, nearly a century later, his dissent continues to influence our thinking about free speech more than any other single document.

Unraveling the mystery behind Holmes’s transformation will therefore tell us not only much about him; it will tell us much about ourselves, too. But how is the mystery to be solved? Holmes has been dead for more than seventy-five years, and even if we could travel back in time to ask him, it is far from certain that he would—or could—provide an explanation. He was an extremely private man who took great pains to protect his public image. He destroyed most of the letters he received and instructed his many correspondents to do the same (fortunately, almost none of them complied). One might also doubt his powers of self-examination. Although generally self-aware, Holmes had blind spots like anyone else. He was defensive, sensitive to criticism, and reluctant to give credit for his ideas to others. Would he be capable of the honest introspection necessary to crack such a case? The truth is he would likely scoff at the entire inquiry. “The trouble with all explanations of historic causes,” he told a friend, “is the absence of quantification: you never can say how much of the given cause was necessary to provide how much effect, or how much of the cause there was. I regard this as the source of the most subtle fallacies.”

Objection noted. But the subjects of history should never be permitted the final word, for that deprives us of the opportunity to make our own sense of the past. Besides, even Holmes admitted that such speculations “always are amusing and tickling if new.”

Our only option, then, is to plunge headlong into the past, to immerse ourselves in that distant time and place, to sort through the remains of Holmes’s life and reconstruct the story behind those famous words. As it turns out, that story is as fascinating as the events that took place in his study on that strange November day. It is a story of intellectual exploration and emotional growth, of chance encounters, wartime hysteria, and terrorist plots. It is a story about an intense behind-the-scenes effort to change the mind of a legal icon. It is a story about the unlikely friendships between an old soldier and the “young lads” who rescued him from loneliness and despair, urging him on to the crowning achievement of his career. Finally, it is a story about the power of free and vigorous debate to change the course of history. In that sense, it is a vivid affirmation of the very principle Holmes so eloquently defended.


Copyright © 2013 by Thomas Healy

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