1. Holmes's list of critics is long. See, for example, Alschuler, Albert W., Law Without Values: The Life, Work, and Legacy of Justice Holmes (Chicago: University of Chicago Press, 2000), 10Google Scholar; Gilmore, Grant, The Ages of American Law (New Haven: Yale University Press, 1977), 49Google Scholar; Rogat, Yosal, “Mr. Justice Holmes: A Dissenting Opinion,” Stanford Law Review 15 (1962): 3–44CrossRefGoogle Scholar; Rogat, Yosal, “Mr. Justice Holmes: A Dissenting Opinion [continued],” Stanford Law Review 15 (1963): 254–308CrossRefGoogle Scholar; [hereafter A Dissenting Opinion II]; Palmer, Ben W., “Defense against Leviathan,” American Bar Association Journal 32 (1946): 328–32Google Scholar; and Palmer, Ben W., “Hobbes, Holmes and Hitler,” American Bar Association Journal 31 (1945): 569–73Google Scholar. But so is Holmes's list of admirers. See, for example, Collins, Ronald K. L., ed., The Fundamental Holmes: A Free Speech Chronicle and Reader: Selections from the Opinions, Books, Articles, Speeches, Letters, and Other Writings by and about Oliver Wendell Holmes, Jr. (Cambridge: Cambridge University Press, 2010), xiiiGoogle Scholar; Kellogg, Frederic R., Oliver Wendell Holmes, Jr., Legal Theory, and Judicial Restraint (Cambridge: Cambridge University Press, 2007), viGoogle Scholar; Gordon, Robert W., “Introduction,” in The Legacy of Oliver Wendell Holmes, Jr., ed. Gordon, Robert W. (Stanford: Stanford University Press, 1992), 4Google Scholar; Posner, Richard A., “Introduction,” in The Essential Holmes: Selections from the Letters, Speeches, Judicial Opinions, and Other Writings of Oliver Wendell Holmes, Jr., ed. Posner, Richard A. (Chicago: University of Chicago Press, 1992), ixGoogle Scholar; Lerner, Max, ed., The Mind and Faith of Justice Holmes: His Speeches, Essays, Letters, and Judicial Opinions (Boston: Little, Brown, 1943), 1Google Scholar; Wyzanski, Charles, “The Democracy of Justice Oliver Wendell Holmes,” Vanderbilt Law Review 7 (1954): 311–24Google Scholar; Rodell, Fred, “Justice Holmes and His Hecklers,” Yale Law Journal 60 (1951): 620–24CrossRefGoogle Scholar; and Frankfurter, Felix, “Oliver Wendell Holmes,” in Dictionary of American Biography: Supplement One, to December 31, 1935, ed. Starr, Harris E. (New York: Scribner, 1944)Google Scholar.

2. A recent online Condorcet poll consisting of 196 voters ranked Holmes first among the “most important” twentieth-century American judges. http://www.cs.cornell.edu/w8/~andru/cgiperl/civs/results.pl?id=E_e9445a64eec50510 (September 25, 2011). He was also the third most cited legal scholar of the twentieth century behind Posner and Ronald Dworkin. Shapiro, Fred R., “The Most-Cited Legal Scholars,” Journal of Legal Studies 29 (2000): 424, table 6Google Scholar.

3. See, for example, United States v. Schwimmer, 279 U.S. 644, 655–56 (1929), quoted in Christian Legal Soc. Chapter v. Martinez, 130 S. Ct. 2971, 3000 (2010) (Alito, J., dissenting); Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting), quoted in McDonald v. City of Chicago, 130 S. Ct. 3020, 3092 n. 9 (2010) (Stevens, J., dissenting); Lochner v. New York, 198 U.S. 45, 76 (Holmes, J., dissenting), quoted in McDonald v. City of Chicago, 3116 (Stevens, J., dissenting); Patterson v. Colorado ex rel. Attorney General of Colorado., 205 U.S. 454, 462 (1907), quoted in Skilling v. United States, 130 S. Ct. 2896, 2913 (2010); Frank v. Mangum, 237 U.S. 309, 349 (1915) (Holmes, J., dissenting), quoted in Skilling v. United States, 2956 (Sotomayor, J., concurring in part and dissenting in part); Blodgett v. Holden, 275 U.S. 142, 147–48 (1927) (Holmes, J., concurring), quoted in Citizens United v. Federal Election Commission, 130 S. Ct. 876, 918 (2010) (Roberts, C.J., concurring); and Blodgett, 275 U.S. at 147–48 (Holmes, J., concurring), quoted in Northwest Austin Municipal Utility District No. One v. Holder, 129 S. Ct 2504, 2506 (2009).

4. See, for example, Menand, Louis, The Metaphysical Club: A Story of Ideas in America (New York: Farrar, Straus and Giroux, 2001), 3–69Google Scholar.

5. White's biography culminated more than three decades of Holmes scholarship. See White, G. Edward, Justice Oliver Wendell Holmes: Law and the Inner Self (New York: Oxford University Press, 1993)Google Scholar; and White, G. Edward, “The Rise and Fall of Justice Holmes,” University of Chicago Law Review 39 (1971): 51–77CrossRefGoogle Scholar.

6. White, G. Edward, “The Canonization of Holmes and Brandeis: Epistemology and Judicial Reputations,” New York University Law Review 70 (1995): 576Google Scholar.

7. Ibid., 577.

8. Ibid., 585.

9. Ibid., 589. White emphasized the influence of legal realists during this period. Others attributed the creation of the Holmes legend to the New Deal. See, for example, Messinger, I. Scott, “Legitimating Liberalism: The New Deal Image-Makers and Oliver Wendell Holmes, Jr.,” Journal of Supreme Court History 20 (1995): 57–72CrossRefGoogle Scholar.

10. White has recognized the “persistent investment on the part of commentators in the reputations of both Justices. . . .” White, “Canonization,” 577.

11. White, G. Edward, “Holmes As Correspondent,” Vanderbilt Law Review 43 (1990), 1725Google Scholar. See, also, 1727 (“The dramatic upsurge of Holmes's reputation in the 1920s and 1930s testifies to how successfully Frankfurter performed that task.”); White, G. Edward, “Holmes's Life Plan: Confronting Ambition, Passion, and Powerlessness,” New York University Law Review 65 (1990): 1460Google Scholar (“Holmes's career came to be taken as a blueprint for enlightened judging by a group of early twentieth-century reformist intellectuals, the most prominent of whom was Felix Frankfurter, who can fairly be described as Holmes's mythmakers.”); White, Inner Self, 363 (“One of the reasons for the close causal relationship between Frankfurter's ‘discovery’ of Holmes and the growth of Holmes' reputation was the ubiquity of Frankfurter's presencee.”) In his “Canonization” article, White briefly mentions but does not focus on Holmes's connection to Frankfurter, Laski, and other progressives. White, “Canonization,” 590.

12. White, “Holmes As Correspondent,” 1709. See also White, Oliver Wendell Holmes, 354–77 (discussing the relationship between Holmes and these young intellectuals); White, “Holmes's Life Plan,” 1460, n. 264 (“Gilmore's claims that Laski and Frankfurter contributed significantly to fostering an idealized image of Holmes and that the origins of that image were ‘about the time of World War I’ are essentially accurate.”); Ibid., 1468 (“the attention of Frankfurter and his contemporaries thus raised for Holmes the possibility that recognition of his contributions might be prolonged; that he had an added incentive to focus his energies on his work.”); Ibid., 1471 (“Finally, Holmes was obviously aware, from the first public tributes he received from Frankfurter and his contemporaries, that his friendships with them contained the possibility of securing him recognition on a wider scale than he had previously achieved.”); and White, Rise and Fall, 56–61 (discussing progressive movement's impact on Holmes's reputation and its mischaracterization of him as progressive).

13. Balkin and Levinson have divided the constitutional canon into a “cultural literacy canon,” a “pedagogical canon,” and an “academic theory canon.” See Balkin, J. M. and Levinson, Sanford, “The Canons of Constitutional Law,” Harvard Law Review 111 (1998): 963CrossRefGoogle Scholar. Ackerman divided the constitutional canon into “official” and “operational” canons and argued that we need to redefine the constitutional canon to include “landmark statutes” and “superprecedents.” Ackerman, Bruce, “The Living Constitution,” Harvard Law Review 120 (2007): 1750–51Google Scholar. On the anticanon, see Greene, Jamal, “The Anticanon,” Harvard Law Review 125 (2011): 380–475Google Scholar; Krishnakumar, Anita S., “On the Evolution of the Canonical Dissent,” Rutgers Law Review 52 (2000): 781–826Google Scholar; and Primus, Richard, “Canon, Anti–Canon, and Judicial Dissent,” Duke Law Journal 48 (1998): 243–303CrossRefGoogle Scholar.

14. See, for example, Bloom, Harold, The Western Canon: The Books and School of the Ages (New York: Harcourt, Brace & Company, 1994)Google Scholar.

15. Snyder, Brad, “How the Conservatives Canonized Brown v. Board of Education,” Rutgers Law Review 52 (1999): 385–86Google Scholar. Balkin and Levinson describe Brown as “normatively canonical.” Balkin and Levinson, “Canons of Constitutional Law,” 998.

16. Snyder, “How the Conservatives Canonized Brown,” 387–88.

17. Ibid., 383.

18. Ibid., 431–37.

19. Ibid., 472–93.

20. Holmes to Sir Frederick Pollock, December 18, 1910, in Holmes–Pollock Letters: The Correspondence of Mr. Justice Holmes and Sir Frederick Pollock 1874–1932, ed. Howe, Mark DeWolfe (Cambridge: Harvard University Press, 1941), 1:172Google Scholar.

21. Holmes, Oliver Wendell Jr., The Common Law ([Boston: Little, Brown,1881]; reprint, Cambridge: Belknap Press of Harvard University Press, 2009)CrossRefGoogle Scholar.

22. Holmes, Oliver Wendell Jr., “The Path of Law” (1897), in Oliver Wendell Holmes, Collected Legal Papers (New York: Harcourt, Brace & Company, 1921), 167–202Google Scholar.

23. Baum, Lawrence, Judges and Their Audiences: A Perspective on Judicial Behavior (Princeton: Princeton University Press, 2006), 22Google Scholar.

24. O'Connell, Jeffrey and Dart, Nancy, “The House of Truth: Home of the Young Frankfurter and Lippman,” Catholic University Law Review 35 (1985): 79–96Google Scholar. See Clay Risen, “The House of Truth,” Morning News, July 19, 2006 http://www.themorningnews.org/archives/profiles/the_house_of_truth.php (September 26, 2011).

25. Urofsky, Melvin I., Louis D. Brandeis: A Life (New York: Pantheon Books, 2009), 336–37, 339, 493Google Scholar; White, Inner Self, 357; Urofsky, Melvin I., Felix Frankfurter: Judicial Restraint and Individual Liberties (Boston: Twayne, 1991), 5–6Google Scholar; Baker, Liva, The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes (New York: HarperCollins, 1991), 490–92Google Scholar; Novick, Sheldon M., Honorable Justice: The Life of Oliver Wendell Holmes (Boston: Little, Brown, 1989), 468–69Google Scholar, n.4; Baker, Leonard, Brandeis and Frankfurter: A Dual Biography (New York: Harper & Row, 1984), 66–67Google Scholar; Parrish, Michael E., Felix Frankfurter and His Times (New York: Free Press, 1982), 51–53Google Scholar; Hirsch, H.N., The Enigma of Felix Frankfurter (New York: Basic Books, 1981), 37Google Scholar; Steel, Ronald, Walter Lippmann and the American Century (Boston: Little, Brown, 1980), 120–23Google Scholar; Lash, Joseph P., “A Brahmin of the Law,” in From the Diaries of Felix Frankfurter: With a Biographical Essay and Notes, ed. Lash, Joseph (New York: Norton, 1975), 7–8Google Scholar (hereafter Diaries of Felix Frakfurter); and Baker, Liva, Felix Frankfurter (New York: Coward–McCann, 1969), 35–36Google Scholar.

26. Phillips, Harlan B., ed., Felix Frankfurter Reminisces (New York: Reynal, 1960), 105–12Google Scholar.

27. White, Inner Self, 606. For the best prior treatments of Holmes and his progressive friends, see ibid., chap. 10; and David A. Hollinger, “The ‘Tough Minded’ Justice Holmes, Jewish Intellectuals, and the Making of an American Icon,” in Gordon ed., The Legacy of Oliver Wendell Holmes, Jr., 216–28.

28. “Justice Holmes' Birthday,” Washington Post, March 9, 1911, 2 (referring to Swift & Co. v. United States, 196 U.S. 375 [1905]).

29. “Justice Holmes Is 70,” Atlanta Constitution, March 9, 1911, 70; and “Justice Holmes 70 Years Old,” Hartford Courant, March 9, 1991, 13.

30. See, for example, Boston Globe, October 15, 1911, 4; Boston Globe, September 20, 1911, 14; and Boston Globe, August 20, 1911, 5.

31. Holmes to Clara Stevens, March 6, 1909, Oliver Wendell Holmes, Jr. Papers, Harvard Law School, reel 25, page 943, box 35, folder 20 (hereafter OWHP). See also Holmes to Canon Patrick Sheehan, September 3, 1910, in Holmes–Sheehan Correspondence: The Letters of Justice Oliver Wendell Holmes and Canon Patrick Augustine Sheehan, ed. Burton, David (Port Washington, N.Y: Kennikat Press, 1976), 36–37Google Scholar (questioning whether “my work is valued as I should like it to be”).

32. Holmes to Pollock, December 18, 1910, in Howe, Holmes–Pollock Letters, 1:172. “It all makes me speculate as to what I shall do—keep on or retire—when my 10 years are out if I am still alive and all right on Dec. 8, 1912. . . . I shan't make up mind yet, but it is well not to wait until you go under fire to speculate on conduct.” Holmes to Baroness Moncheur, December 18, 1910, OWHP, reel 26, page 54, box 35, folder 24.

33. Holmes to Nina Gray, December 25, 1908, OWHP, reel 23, page 466, box 32, folder 3.

34. White, Inner Self, 291–97; and Tushnet, Mark, “The Logic of Experience: Oliver Wendell Holmes on the Supreme Judicial Court,” Virginia Law Review 63 (1977): 1040CrossRefGoogle Scholar.

35. New York Evening Post, August 12, 1902, 4; and Boston Evening Transcript, August 12, 1902, 4, quoted in White, Inner Self, 306, 552 n. 35–36.

36. Holmes to Nina Gray, March 18, 1911, at 2, OWHP, reel 23, page 531, box 32, folder 5.

37. Holmes to John Gray, May 10, 1914, at 1, OWHP, reel 24, page 525, box 33, folder 25.

38. John Gray to William Howard Taft, November 9, 1912, William Howard Taft Papers, Library of Congress, reel 432, image 175.

39. Holmes wrote: “my living friends grow fewer.” Holmes to John Henry Wigmore, March 8, 1911, OWHP, reel 26, page 63, box 35, folder 24.

40. John Gray to Holmes, June 15, 1913, at 1, OWHP, reel 24, page 482, box 33, folder 23.

41. Holmes's last visit to England and with Lady Castletown came in the summer of 1913. On their relationship, see Monagan, John S., The Grand Panjandrum: Mellow Years of Justice Holmes (Lanham: University Press of America, 1988), 71–94Google Scholar; and White, Inner Self, 230–52.

42. See Howe, Mark DeWolfe, Justice Oliver Wendell Holmes: The Shaping Years, 1841–1870 (Cambridge: Harvard University Press, 1957), 1–34CrossRefGoogle Scholar; and White, Inner Self, 9–14.

43. Two years after joining the Court, Holmes was introduced to a Senator's wife, who remarked how much she had enjoyed his novel, Elsie Vedder. Holmes tried to explain that his father had written the book, but the Senator's wife said the justice was being “entirely too modest, and should not hide his literary light under a bushel. Justice Holmes sighed and resumed the supping of his punch.” “Justice Holmes Sighed,” Washington Post, January 31, 1904, B3.

44. Holmes believed that The Common Law had satisfied his goal that “if a man was to do anything, he must do it before 40.” Holmes to Mrs. Charles Hamlin, October 12, 1930, OWHP, reel 33, page 59, box 43, folder 28; and Howe, Mark DeWolfe, Justice Oliver Wendell Holmes: The Proving Years, 1871–1882 (Cambridge: Harvard University Press, 1966), 8, 135Google Scholar.

45. Holmes to Lewis Einstein, December 19, 1910, in The Holmes–Einstein Letters: Correspondence of Mr. Justice Holmes and Lewis Einstein 1903–1935, ed. Peabody, James Bishop (New York: St. Martin's Press, 1964), 57–58Google Scholar. Holmes often described his ambitions as “internal.” See, for example, Holmes to Nina Gray, December 15, 1910, OWHP, reel 23, page 521, box 32, folder 5; and Holmes to Sheehan, August 14, 1910, in Burton, Holmes–Sheehan Correspondence, 32.

46. Holmes to Sheehan, December 15, 1912, in Burton, Holmes–Sheehan Correspondence, 56. See also Howe, The Proving Years, 49 (“his aspiration was for intellectual eminence” and describing Holmes as “a calculator of action and a planner of accomplishment”).

47. Phillips, Felix Frankfurter Reminisces, 106.

48. See, for example, “Taft Recalls Order Aimed at Catholics,” New York Times, February 5, 1912, 5; “Bars Catholic Garb at Religious Schools,” New York Times, February 4, 1912, 2; and Phillips, Felix Frankfurter Reminisces, 105.

49. Phillips, Felix Frankfurter Reminisces, 56; and Lash, Diaries of Felix Frankfurter, 101–23.

50. Phillips, Felix Frankfurter Reminisces, 58. Frankfurter had worked as Gray's research assistant the summer after graduating from law school. Ibid., 23–24. The letter no longer exists, but the Holmes–John Gray correspondence is incomplete. Holmes referenced the letter in several extant letters. See, for example, Holmes to John Gray, May 10, 1914: 1, OWHP, reel 24, page 525, box 33, folder 25 (“Here I am very much alone except for some of the young fellows, especially Frankfurter whom you introduced to me . . . .”).

51. Phillips, Felix Frankfurter Reminisces, 58. The 1912 D.C. city directory lists Christie at 1808 Eye Street and Frankfurter at 1801 Eye Street. Washington D.C. City Directory (1912), 416, 618.

52. Lash attributes it to Holmes, but O'Connell and Dart doubt this attribution. Lash, “A Brahmin of the Law,” in Diaries of Felix Frankfurter, 8; and O'Connell and Dart, “The House of Truth,” 79. Frankfurter could not remember who named it. Phillips, Felix Frankfurter Reminisces, 106. Holmes attributed it to Denison. Holmes to Nina Chipman Gray, November 6, 1919, at 2–3, OWHP, reel 23, page 684, box 32, folder 12.

53. Holmes, Oliver Wendell, “Natural Law,” Harvard Law Review 32 (1918): 40CrossRefGoogle Scholar in Holmes, Collected Legal Papers, 310. See also Holmes, Oliver Wendell, “Ideals and Doubts,” Illinois Law Review 1 (1915)Google Scholar: 2, ibid., 304–5 (“I therefore define the truth as the system of my limitations, and leave absolute truth for those who are better equipped.”); and Holmes to Learned Hand, June 24, 1918, OWHP, reel 26, page 486, box 36, folder 3 (“I don't bother about absolute truths or even inquire whether there is a such a thing, but define the Truth as the system of limitations. I may add that as other men are subject to a certain number, not all, of my Cant Helps, intercourse is possible. When I was young I used to define the truth as the majority of that nation that can lick all others. So we may define the present war as an inquiry concerning truth.”).

54. Holmes, “Natural Law,” 40 in Collected Legal Papers, 310.

55. Denison to Holmes, March 3, 1913, at 1, OWHP, reel 31, page 231, box 41, folder 19.

56. See Holmes, “Law and the Court,” in Collected Legal Papers, 295 (“Judges are apt to be naif, simple-minded men, and they need something of Mephistopheles.”); Biddle, Francis, Mr. Justice Holmes (New York: Scribner, 1942)Google Scholar, 124 (“[Holmes] knew he himself had something of Mephistopheles.”); and Holmes to Nina Gray, October 23, 1910, OWHP, reel 23, page 506, box 32, folder 5 (“I am much pleased with my secretary, Olds. . . . I don't quite know how far to introduce him to Mephistopheles . . . .”).

57. Denison to Holmes, May 10, circa 1913, at 1, OWHP, reel 31, page 235, box 41, folder 19.

58. Telegram from Denison to Holmes, June 10, 1913, OWHP, reel 31, page 238, box 41, folder 19.

59. Frankfurter to Holmes, June 9, 1913, in Holmes & Frankfurter: Their Correspondence, 1912–1934, eds. Mennel, Robert M. and Compston, Christine L. (Hanover, NH: University Press of New England, 1996), 9Google Scholar.

60. Frankfurter to Francis Biddle, February 19, 1914, Francis Biddle Papers, Georgetown University Archives, box 2, folder 6 (“Won't you shoot down here before the House breaks up in June.”).

61. Frankfurter to Holmes, July 4, 1913, in Mennel and Compston, Holmes & Frankfurter, 10.

62. New Republic, November 7, 1914, 3.

63. Ibid. The progressive movement is not easily defined, and “progressive” is not a synonym for liberal. There were many types of progressives. David Kennedy identifies the “semantic” problem that “[h]undreds, no doubt thousands, of public men in the first two decades of this century referred to themselves as ‘progressive.’” Kennedy, David M., “Introduction,” in Progressivism: the Critical Issues, ed. Kennedy, David M. (Boston: Little, Brown, 1971), xiiGoogle Scholar. The House of Truth generally consisted of “regulationists” who believed that experts could implement economic reform, particularly in the field of labor–management relations. Kennedy also describes Richard Hofstadter's failure to recognize “regulationists like Theodore Roosevelt and Herbert Croly and Walter Lippmann as authentic progressives.” Kennedy, David M., “Overview: The Progressive Era,” The Historian 37 (1975): 462CrossRefGoogle Scholar.

64. Steel, Lippmann and the American Century, 120–21.

65. Percy, Eustace, Some Memories (London: Eyre & Spottiswoode, 1958), 53, 59Google Scholar.

66. “Resigns Office to Join Roosevelt,” New York Times, September 11, 1912, 1; and “Will Follow Roosevelt,” Boston Globe, September 11, 1912, 18.

67. Frankfurter to Stimson, September 10, 1912, Felix Frankfurter Papers, Library of Congress, box 103, folder “Stimson, Henry L. 1908–12” (hereafter FF-LC); Stimson to Frankfurter, September 19, 1912, ibid.; Frankfurter to Fanny Holmes, May 14, 1912, in Mennel and Compston, Holmes & Frankfurter, 10; Phillips Felix Frankfurter Reminisces, 54.

68. Theodore Roosevelt, The Nation and the States, August 29, 1910, Denver, CO, http://www.theodore-roosevelt.com/trspeechescomplete.html (October 3, 2011); and Nourse, Victoria F., “A Tale of Two Lochners: The Untold History of Substantive Due Process and the Idea of Fundamental Rights,” California Law Review 97 (2009): 778–85Google Scholar. The New York World sent Holmes a telegram in late August 1910 after Roosevelt had publicly attacked the Court based on two of its decisions, E.C. Knight and Lochner. Holmes replied with two words: “No comment.” Holmes to Baroness Moncheur, August 31, 1910, 1, OWHP, reel 26, page 30, box 35, folder 23.

69. Roosevelt criticized a report Frankfurter had written for the Wilson administration about the trial of labor leader Tom Mooney for bombing a San Francisco parade, as adopting “an attitude which seems to me to be fundamentally that of Trotsky and the other Bolsheviki leaders in Russia; an attitude that may be fraught with mischief to this country.” Roosevelt to Frankfurter, December 19, 1917, FF-LC, box 98, folder “Roosevelt, Theodore 1917–18 & undated.”

70. Cooper, John Milton, Woodrow Wilson: A Biography (New York: Alfred A. Knopf, 2009), 273Google Scholar (describing McReynolds's nomination to the Supreme Court as “one of the worst blunders Wilson committed as president” and that “his other two appointments” were “men whose thinking was much closer to his own”).

71. Mason, Alpheus Thomas, William Howard Taft: Chief Justice (New York: Simon & Schuster, 1965), 164–67Google Scholar, quoting Clarke to Woodrow Wilson, September 9, 1922.

72. On Muller, Bunting, and Adkins, see Phillips, Felix Frankfurter Reminisces, 94–104.

73. Frankfurter to Hand, April 11, 1923, Learned Hand Papers, Harvard Law School, box 104–10.

74. Phillips, Felix Frankfurter Reminisces, 103.

75. “Taft and the Supreme Court,” New Republic, October 27, 1920 and “The Same Mr. Taft,” New Republic, January 18, 1922, in Frankfurter, Felix, Law and Politics: Occasional Papers of Felix Frankfurter, 1913–1938, eds. MacLeish, Archibald and Pritchard, E.F. (New York: Harcourt, Brace & Company, 1939), 37, 41Google Scholar.

76. Frankfurter to Holmes, April 18, 1921, in Mennel and Compston, Holmes & Frankfurter, 108.

77. Laski to Holmes, January 15, 1917, in Howe, Holmes–Laski Letters, 1:55.

78. Laski to Holmes, December 18, 1917, ibid., 1:121. Holmes wrote: “I quite agree that the question what and how much good labor unions do is one on which intelligent people may differ––I think that laboring men sometimes attribute to them advantages, as many attribute to combinations of capital disadvantages, that really are due to economic conditions of a far wider and deeper kind; but I could not pronounce it unwarranted if Congress should decide that to foster a strong union was for the best interest, not only of the men, but of the railroads and the country at large.” Adair v. United States, 208 U.S. 161, 191–92 (1908) (Holmes, J., dissenting).

79. Laski to Frankfurter, March 7, 1925, at 2, FF-LC, box 74, folder “H Laski 1925–26”; Frankfurter to Florence Kelley, May 31, 1923, FF–LC, box 157, folder “National Consumers' Leagues 1923”; and Frankfurter to Stephen Wise, May 31, 1922, FF–LC, box 157, folder “National Consumers' League 1922.”

80. On Lochner, see “New York 10-Hour Law Is Unconstitutional,” New York Times, April 18, 1905, 1; “Law Can't Limit A Working Day,” Chicago Tribune, April 18, 1905, 1; and “Bakery Law Invalid,” Washington Post, April 18, 1905, 11.

81. Although scholars immediately criticized Lochner, see Freund, Ernst, “Limitations of Hours of Labor,” Green Bag 17 (1905): 411–17Google Scholar, Holmes's dissent did not begin to gain recognition until Roscoe Pound and other scholars began writing about it in 1909. See, for example, Pound, Roscoe, “Liberty of Contract,” Yale Law Journal 18 (1909): 480CrossRefGoogle Scholar (arguing that “the decisive objection to the position of the majority is put by Mr. Justice Holmes in a few sentences that deserve to become classical”); and Corwin, Edward, “The Supreme Court and the Fourteenth Amendment,” Michigan Law Review 7 (1909): 669–70CrossRefGoogle Scholar (describing Holmes's dissent as “more trenchant” than Harlan's, yet criticizing both).

82. On Adair, see “Can Discharge Man For Joining Union,” New York Times, January 28, 1908, 1; “No Safety in Union,” Washington Post, January 28, 1908, 1; and “High Court Blow for Union Labor,” Chicago Tribune, January 28, 1908, 11. On Coppage, see “Employer Has Right to Bar Union Men,” New York Times, January 26, 1915, 6; “Coercion Law Is Void,” Washington Post, January 26, 1915, 15; and “Employers May Require Workers to Spurn Unions,” Chicago Tribune, January 26, 1915, 17.

83. Laski to Holmes, July 22, 1916, in Howe, Holmes–Laski Letters, 1:6. Laski was well connected to the House of Truth and referenced its residents Eustace Percy and Loring Christie in multiple letters. See, for example, Laski to Holmes, December 16, 1916, ibid., 1:42; and Laski to Holmes, March 24, 1918, ibid., 1:143. See also “Education: Young Fellows,” Time, June 1, 1931, 22 (connecting Laski to House of Truth).

84. See, for example, Frankfurter, Felix, “The Zeitgeist and the Judiciary,” The Survey, January 25, 1913, 543Google Scholar (“Holmes has been a powerful influence in the changed attitude of the Supreme Court.”).

85. See, for example, Frankfurter, Felix, “The Present Approach to Constitutional Decision on the Bill of Rights,” Harvard Law Review 28 (1915): 791 n.3CrossRefGoogle Scholar, 792; Frankfurter, Felix, “Hours of Labor and Realism in Constitutional Law,” Harvard Law Review 29 (1916): 354 n.2, 359–60CrossRefGoogle Scholar, n.20, 362 n.30, 370 n.58.

86. Coppage v. Kansas, 236 U.S. 1, 26 (1915) (Holmes, J., dissenting).

87. Ibid.

88. Holmes to Laski, December 13, 1916, in Howe, Holmes–Laski Letters, 1:42; ibid., January 8, 1917, 1:51–52.

89. Coppage, 236 U.S. at 27 (Holmes, J., dissenting).

90. Frankfurter to Holmes, January 27, 1915, in Mennel and Compston, Holmes & Frankfurter, 25–6.

91. New Republic, January 30, 1915, 4.

92. Laski to Holmes, August 12, 1916, in Howe, Holmes–Laski Letters, 1:11; “Neutrality in Strikes,” New Republic, August 12, 1916, 28.

93. Laski to Holmes, May 12, 1918, in Howe, Holmes–Laski Letters, 1:155.

94. Hammer v. Dagenhart, 247 U.S. 251, 278 (1918) (Holmes, J., dissenting).

95. Ibid., 276–77.

96. Frankfurter to Holmes, May 18, 1918, in Mennel and Compston, Holmes & Frankfurter, 72. See McCray v. United States, 195 U.S. 27 (1904) (sustaining Oleomargarine Act of 1886 prohibiting tax on artificial coloring).

97. “States' Rights vs. the Nation,” New Republic, June 15, 1918, 295.

98. See “Child Labor Law Upset by Court,” New York Times, June 4, 1918, 14; and “Child Labor Law Fails,” Washington Post, June 4, 1918, 11.

99. Truax v. Corrigan, 257 U.S. 312, 342 (1921) (Holmes, J., dissenting).

100. Frankfurter, Felix and Greene, Nathan, The Labor Injunction (New York: Macmillan, 1930)Google Scholar.

101. See Holmes to Laski, December 22, 1921, in Howe, Holmes–Laski Letters, 1:389; Holmes to Frankfurter, December 23, 1921, in Mennel and Compston, Holmes & Frankfurter, 132; Holmes to Laski, January 15, 1922, in Howe, Holmes–Laski Letters, 1:397.

102. Laski to Holmes, January 22, 1922, in Howe, Holmes–Laski Letters, 1:401.

103. “The Political Function of the Court,” New Republic, January 25, 1922, 236. See “The Same Mr. Taft,” ibid., January 18, 1922, 191.

104. Adkins v. Children's Hospital, 261 U.S. 525, 567 (1923) (Holmes, J., dissenting).

105. Ibid., 545, 560–61.

106. Holmes to Frankfurter, April 13, 1923, in Mennel and Compston, Holmes & Frankfurter, 152.

107. Laski to Holmes, April 26, 1923, in Howe, Holmes–Laski Letters, 1:496–98.

108. “Dissenting Opinions in the Minimum Wage Case,” New Republic, April 25, 1923, 240; and “An Appeal from the Supreme Court,” ibid., 228.

109. Holmes to Nina Gray, April 21, 1923, OWHP, reel 23, page 918, box 33, folder 1.

110. Holmes to Laski, April 14, 1923, in Howe, Holmes–Laski Letters, 1:495.

111. See, for example, Patterson v. Colorado, 205 U.S. 454, 462 (1907) (Holmes, J.) (interpreting free speech to be limited to freedom from prior restraints); and Rabban, David M., Free Speech in Its Forgotten Years (Cambridge: Cambridge University Press, 1997), 232–42Google Scholar (discussing Croly's limited views of free speech).

112. Rabban, Free Speech, 342.

113. Wilson, Edmund, Patriotic Gore: Studies in the Literature of the American Civil War (New York: Oxford University Press, 1962), 772–75Google Scholar.

114. White, G. Edward, “Justice Holmes and the Modernization of Free Speech Jurisprudence: The Human Dimension,” California Law Review 80 (1992): 391CrossRefGoogle Scholar.

115. Laski to Holmes, November 8, 1918, in Howe, Holmes–Laski Letters, 1:170.

116. Holmes to Laski, March 16, 1919, ibid., 1:190. For similar comments about hating to write Debs, see Holmes to Wigmore, June 7, 1919, OWHP, reel 30, page 526, box 36, folder 4; and Holmes to Baroness Moncheur, April 4, 1919, ibid., reel 36, page 520, box 36, folder 4. See also Holmes to Pollock, April 5. 1919, in Howe, Holmes–Pollock Letters, 2:7 (“As it happens I should go farther probably than the majority in favor of [free speech], and I daresay it was partly on that account that the C.J. assigned the case to me.”).

117. Laski to Holmes, March 18, 1919, in Howe, Holmes–Laski Letters, 1:191.

118. Editorial, New Republic, April 19, 1919, 362.

119. Holmes to Laski, April 20, 1919, in Howe, Holmes–Laski Letters, 1:197.

120. Ernst Freund, “The Debs Case and Freedom of Speech,” New Republic, May 3, 1919, 14.

121. Ibid. On Freund's pre-World War I commitment to free speech, see Graber, Mark A., Transforming Free Speech: The Ambiguous Legacy of Civil Libertarianism (Berkeley: University of California Press, 1991), 64–65Google Scholar.

122. Holmes to Laski, May 13, 1919, in Howe, Holmes–Laski Letters, 1:202 (containing an unsent letter from Holmes to Croly, May 12, 1919).

123. Hand to Holmes, c. late March 1919, OWHP, reel 61, page 574, box 80, folder 10; Masses Publishing Co. v. Patten, 244 F. 535 (S.D.N.Y. 1917); and Gunther, Gerald, Learned Hand: The Man and the Judge (New York: Knopf, 1994), 162–64Google Scholar.

124. Holmes to Hand, April 3, 1919, OWHP, reel 26, page 519, box 36, folder 4. The year before, Holmes wrote: “free speech stands no differently than freedom from vaccination.” Holmes to Hand, June 24, 1918, ibid., reel 26, page 486, box 36, folder 3.

125. Holmes to Hand, March 8, 1919, ibid., reel 26, page 515, box 36, folder 4.

126. Chafee was not optimistic after the meeting. Chafee to Judge Charles F. Amidon, September 30, 1919, at 2, Chafee Papers, Harvard Law School, reel 3, page 11, box 4, folder 1 (“I have talked with Justice Holmes about the article but find that he is inclined to allow a very wide latitude to Congressional discretion in the carrying on of the war. He does not think it possible to draw any limit to the first amendment but simply indicate cases on the one side or the other of the line.”). Holmes to Pollock, June 21, 1920, in Howe, Holmes–Pollock Letters, 2:45 (Chafee “is said to be a very good man. In the few minutes talk I had with him a year ago he seemed unusually pleasant and intelligent . . . .”). For more on the influence of Chafee, Freund, Hand, and Laski on Holmes's views on free speech, see Rabban, Free Speech in Its Forgotten Years, 350–55; Polenberg, Richard, Fighting Faiths: The Abrams Case, the Supreme Court, and Free Speech (New York: Viking, 1987), 218–28Google Scholar; Stone, Geoffrey R., Perilous Times: Free Speech in Wartime from the Sedition Act of 1798 to the War on Terrorism (New York: W.W. Norton, 2004), 198–203Google Scholar; Bogen, David S., “The Free Speech Metamorphosis of Mr. Justice Holmes,” Hofstra Law Review 11 (1982): 97–189Google Scholar; and Ragan, Fred D., “Justice Oliver Wendell Holmes, Jr., Zechariah Chafee, Jr., and the Clear and Present Danger Test for Free Speech: The First Year, 1919,” Journal of American History 58 (1971): 24–45CrossRefGoogle Scholar.

127. Laski to Chafee, July 23, 1919, Chafee Papers, reel 12, page 489, box 14, folder 10.

128. Holmes to Pollock, April 5, 1919, in Howe, Holmes–Pollock Letters, 2:8; Holmes to Laski, April 8, 1919, in Howe, Holmes–Laski Letters, 1:194; and Kramnick, Isaac & Sheerman, Barry, Harold Laski: A Life on the Left (New York: Allen Lane/Penguin Press, 1993), 125–27Google Scholar.

129. Abrams v. United States, 250 U.S. 616, 624 (1919) (Holmes, J., dissenting). For Holmes on difference between Debs and Abrams, see Holmes to Pollock, December 14, 1919, in Howe, Holmes–Pollock Letters, 2:32.

130. Holmes to Pound, November 13, 1919, OWHP, reel 26, page 547, box 36, folder 5.

131. Ibid.

132. Lippmann to Holmes, November 13, 1919, OWHP, reel 35, page 347, box 46, folder 27; and “The Espionage Act Interpreted,” New Republic, November 26, 1919, 377.

133. Lippmann to Holmes, November 18, 1919, OWHP, reel 35, page 348, box 46, folder 27.

134. “The Call to Toleration,” New Republic, November 26, 1919, 360.

135. Laski to Holmes, November 12, 1919, in Howe, Holmes–Laski Letters, 1:220.

136. Laski to Holmes, November 14, 1919, ibid., 1:222.

137. Laski to Holmes, November 27, 1919, ibid., 1:223. “Of course Abrams v. U.S. hits me closest. I think that dissent will influence American thinking in a fashion to which only your work in Lochner and the Adair case have rivalry.” Laski to Holmes, April 2, 1920, ibid., 1:256–57.

138. Frankfurter to Holmes, November 12, 1919, in Mennel and Compston, Holmes & Frankfurter, 75.

139. Frankfurter to Holmes, November 26, 1919, ibid., 76.

140. For favorable commentary, see Chafee, Zechariah, “A Contemporary State Trial: The United States versus Jacob Abrams et al.,” Harvard Law Review 33 (1920): 747–71CrossRefGoogle Scholar; Frankfurter to Holmes, April 19, 1920, in Mennel and Compston, Holmes & Frankfurter, 85; Pollock, Frederick, “Abrams v. United States,” Law Quarterly Review 36 (1920): 333Google Scholar, 337; and Frankfurter to Holmes, November 22, 1920, in Mennel and Compston, Holmes & Frankfurter, 97.

141. Frankfurter used Pollock's article to defend Holmes's Abrams dissent against “[e]minent lawyers and law writers. . . .” New Republic, December 8, 1920, in FF–LC, box 194, scrapbook “Writings 1913–1924,” 96. Frankfurter was referring to Prof. Wigmore and Harvard overseer Thomas Nelson Perkins. Holmes to Frankfurter, November 30, 1919, in Mennel and Compston, Holmes & Frankfurter, 77.

142. Holmes to Pound, November 28, 1919, OWHP, reel 26, page 549, box 36, folder 5; and Holmes to Hand, November 20, 1919, ibid., reel 26, page 548, box 36, folder 5.

143. Holmes to Hand, November 20, 1919, ibid., reel 26, page 548, box 36, folder 5.

144. Chafee, “A Contemporary State Trial,” 9; and Irons, Peter, “‘Fighting Fair’: Zechariah Chafee, Jr., the Department of Justice, and the Trial at the Harvard Club,” Harvard Law Review 94 (1981): 1205CrossRefGoogle Scholar.

145. Holmes to Ellen A. Curtis, December 7, 1919, OWHP, reel 26, page 554, box 36, folder 5.

146. Milwaukee Social Democratic Publishing Co. v. Burleson, 255 U.S. 407, 436 (1921) (Holmes, J., dissenting).

147. Frankfurter to Holmes, March 16, 1921, in Mennel and Compston, Holmes & Frankfurter, 106.

148. “Press Censorship by Judicial Construction,” New Republic, March 30, 1921: 124, in FF–LC, box 194, scrapbook “Writings 1913–1924,” 125.

149. Gitlow v. New York, 268 U.S. 652, 672 (1925) (Holmes, J., dissenting). See Holmes to Einstein, July 11 1925, in Peabody, Holmes–Einstein Letters, 244; and Holmes to Pollock, July 18, 1925, in Howe, Holmes–Pollock Letters, 2:163.

150. Holmes to Frankfurter, June 15, 1925, in Mennel and Compston, Holmes & Frankfurter, 184.

151. Holmes to Laski, June 14, 1925, in Howe, Holmes–Laski Letters, 1:732; and Laski to Holmes, July 6, 1925, ibid., 1:759.

152. “The Gitlow Case,” New Republic, July 1, 1925, 141.

153. Frankfurter to Holmes, June 30, 1925, in Mennel and Compston, Holmes & Frankfurter, 185.

154. Holmes to Frankfurter, July 2, 1925, ibid., 186.

155. United States v. Schwimmer, 279 U.S. 644, 653 (1929) (Holmes, J., dissenting).

156. “Justice Holmes and the Schwimmer Case,” New Republic, June 12, 1929, 92.

157. Frankfurter to Holmes, May 29, 1929, in Mennel and Compston, Holmes & Frankfurter, 240. See also Holmes to Laski, May 30, 1929, in Howe, Holmes–Laski Letters, 2:1152 (relaying Frankfurter's praising of Schwimmer); and Laski to Holmes, June 4, 1929, ibid., 2:1155 (praising Schwimmer). But also see Lippmann to Frankfurter, June 11, 1929, in Lippmann, Walter, Public Philosopher: Selected Letters of Walter Lippmann, ed. Blum, John Morton (New York: Ticknor & Fields, 1985)Google Scholar, 241 (disagreeing with Schwimmer and Frankfurter's “assumption that a failure to agree immediately and whole-heartedly with Holmes, Brandeis, and Cardozo was a weird and strange procedure . . . .”).

158. “A Dissenting Opinion,” New York Times, May 29, 1929, 28, quoted in Frankfurter to Holmes, May 29, 1929, in Mennel and Compston, Holmes & Frankfurter, 240.

159. Holmes to Frankfurter, May 31, 1929, ibid., 240–41.

160. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393 (1922).

161. Ibid., 416.

162. Holmes to Laski, January 13, 1923, in Howe, Holmes–Laski Letters, 1:473.

163. Frankfurter to Holmes, February 14, 1923, in Mennel and Compston, Holmes & Frankfurter, 150.

164. “Pennsylvania's “Cave In” Law,” New Republic, January 3, 1923, 136–37. Brandeis blamed Holmes's Mahon opinion on Holmes's secretary Robert Benjamin “accentuating the tendency of age to conservatism.” Brandeis to Frankfurter, January 3, 1923, in “Half Brother, Half Son”: The Letters of Louis D. Brandeis to Felix Frankfurter, eds. Urofsky, Melvin I. and Levy, David W. (Norman, OK: University of Oklahoma Press, 1991), 132Google Scholar.

165. Holmes to Laski, January 13, 1923, in Holmes-Laski Letters, 1:473.

166. Buck v. Bell, 274 U.S. 200 (1927).

167. Ibid., 207. See, generally, Lombardo, Paul A., Three Generations, No Imbeciles: Eugenics, the Supreme Court, and Bell, Buck v. (Baltimore: Johns Hopkins University Press, 2008)Google Scholar; and Victoria F. Nourse, In Reckless Hands: Oklahoma, Skinner v.and the Near Triumph of American Eugenics (New York: W.W. Norton, 2008)Google Scholar.

168. Holmes to Frankfurter, May 14, 1927, in Mennel and Compston, Holmes & Frankfurter, 212.

169. There is a danger in putting too much emphasis on Frankfurter's silence because Frankfurter may have destroyed many of his letters to Holmes. See Introduction, ibid., xiv (explaining “numerical imbalance” of correspondence).

170. Frankfurter to Holmes, June 5, 1927, ibid., 213.

171. Frankfurter, Felix, “Mr. Justice Holmes and the Constitution: A Review of his 25 years on the Supreme Court,” Harvard Law Review 41 (1927): 173CrossRefGoogle Scholar. Other progressives, including Brandeis (who joined in Buck), praised Holmes's decision. Bernstein, David E., Rehabilitating Lochner: Defending Individual Rights against Progressive Reform (Chicago: University of Chicago Press, 2011), 98CrossRefGoogle Scholar.

172. “One decision that I wrote gave me pleasure, establishing the constitutionality of a law permitting the sterilization of imbeciles.” Holmes to Einstein, May 19, 1927, in Peabody, Holmes–Einstein Letters, 267.

173. “I am amused (between ourselves) at some of the rhetorical changes suggested, when I purposely used short and rather brutal words for an antithesis, polysyllables that made them mad.” Holmes to Laski, April 25, 1927, in Howe, Holmes–Laski Letters, 2:939. Holmes, who had tempered his language in prior opinions, kept his sharp rhetoric in Buck. “This time, though I had said, Never again, I did the same thing in a milder form, and now as then have to accept criticism that I think pretty well justified.” Ibid.

174. Laski to Holmes, May 7, 1927, in Howe, Holmes–Laski Letters, 2:940.

175. Holmes to Laski, November 1, 1916, ibid., 1:33.

176. See OWHP, reel 61, pages 686–766, paige boxes 1–3.

177. Holmes to Pollock, August 30, 1929, in Howe, Holmes–Pollock Letters, 2:252. For similar comments, see Holmes to Frankfurter, January 21, 1915, in Mennel and Compston, Holmes & Frankfurter, 24–25.

178. Holmes to Croly, November 22, 1914, at 1, OWHP, reel 30, page 363, box 40, folder 21; Croly to Holmes, November 15, 1914, at 1, ibid., page 358.

179. Holmes to Frankfurter, May 29, 1915, in Mennel and Compston, Holmes & Frankfurter, 30.

180. See, for example, Holmes to Lady Leslie Scott, March 7, 1915, at 1–2, OWHP, reel 26, page 289, box 35, folder 30; and Holmes to Einstein, August 12, 1916, in Peabody, Holmes–Einstein Letters, 136.

181. Phillips, Felix Frankfurter Reminisces, 88, 165; Felix Frankfurter, “Herbert Croly and American Political Opinion,” New Republic, July 16, 1930, 247, in MacLeish and Pritchard, Law and Politics, 305. Holmes described The Promise of American Life as a “very good book” with “keen criticism of our past and present.” Holmes to Lady Leslie Scott, July 30, 1910, at 1, OWHP, reel 26, page 26, box 35, folder 23.

182. Croly to Holmes, November 15, 1914, at 1, OWHP, reel 30, page 358, box 40, folder 21.

183. Holmes to Frankfurter, November 27, 1914, in Mennel and Compston, Holmes & Frankfurter, 23.

184. Holmes to Frankfurter, January 21, 1915, ibid., 24–25.

185. Holmes to John Gray, October 27, 1914, OWHP, reel 26, page 254, box 35, folder 29. For similar comments, see Holmes to Pollock, November 7, 1914, in Howe, Holmes–Pollock Letters, 1:223–4; and Holmes to Einstein, December 10, 1914, in Peabody, Holmes–Einstein Letters, 102.

186. Holmes to Lippmann, October 27, 1914, at 1, Walter Lippmann Papers, Yale University Archives, reel 165, box 2, folder 39 “Holmes, Oliver Wendell 1914–1916.”

187. Ibid., 1–3.

188. Holmes to Lippmann, October 30, 1914, at 1, Lippmann Papers, reel 165, box 2, folder 39 “Holmes, Oliver Wendell 1914–1916.”

189. Ibid.

190. Walter Lippmann, “To Justice Holmes,” New Republic, March 11, 1916, 156. Lippmann wrote Holmes: “I have tried to write for this week's New Republic what I felt to say. But of course I couldn't succeed . . . a lady to whom I showed the article said that the most serious fault was the omission of Mrs. Holmes. I told her it couldn't be done by mortal pen.” Lippmann to Holmes, March 8, 1916, OWHP, reel 35, page 338, box 46 folder 27 (ellipses in original).

191. Holmes to Laski, November 25, 1916, in Howe, Holmes–Laski Letters, 1:37.

192. Holmes to Clara Stevens, February 9, 1916, OWHP, reel 26, page 354, box 35, folder 32.

193. Holmes to Frankfurter, December 15, 1923, in Mennel and Compston, Holmes & Frankfurter, 164. Holmes to Hand, December 14, 1923, OWHP, reel 26, page 856, box 36, folder 13; and Holmes to Frankfurter, March 23, 1916, in Mennel and Compston, Holmes & Frankfurter, 49.

194. Holmes to Lippmann, November 22, 1915: 1, Lippmann Papers, reel 165, box 2, folder 39 “Holmes, Oliver Wendell 1914–1916.”

195. Lippmann to Holmes, November 18, 1919: 1–2, OWHP, reel 35, page 348, box 46, folder 27, in Lippmann, Public Philosopher, 132–33.

196. See, for example, Holmes to Frankfurter, February 24, 1932, in Mennel and Compston, Holmes & Frankfurter, 269; Holmes to Arthur Sutherland, November 19, 1929, at 41, in “Recollections of Justice Holmes, 1935,” Arthur Sutherland Papers, Harvard Law School Special Collections, box 24, folder 24–7.

197. Holmes to Laski, May 12, 1928, in Howe, Holmes–Laski Letters, 2:1055.

198. Lippmann to Lynn Weldon, March 23, 1931, in Lippmann, Public Philosopher, 271–72.

199. Frankfurter, Introduction, in Howe, Holmes–Laski Letters, 1:xiii; and Holmes to Einstein, July 11, 1916, in Peabody, Holmes–Einstein Letters, 132.

200. Holmes to Einstein, July 11, 1916, in Peabody, Holmes–Einstein Letters, 132 (“We had a visit from two young Jews who hit me where I live. Frankfurter, an old friend, Professor in the Law School, and Harold Laski, twenty-three, a young prodigy in knowledge and intelligence.”); and Holmes to Einstein, May 7, 1930, ibid., 309 (describing Laski as a “very remarkable chap”).

201. See, for example, Biddle, Mr. Justice Holmes, 12 (recalling Holmes clerks had to “listen to his tall talk”); Howe, Holmes–Laski Letters, 1:vi (conceding Laski's letters contain “exaggeration, distortion, and falsehood”); Mason, Alpheus Thomas, Harlan Fiske Stone: Pillar of Law (New York: Viking, 1956), 334–35Google Scholar n.* (claiming Laski faked excerpts of Holmes letters praising Stone); and Laski to Stone, January 27, 1938 & excerpts of purported Holmes letters, Harlan Fiske Stone Papers, Library of Congress, box 19, folder “Laski, Harold J.”

202. Holmes to Laski, September 7, 1916, in Howe, Holmes–Laski Letters, 1:17. See Laski to Holmes, September 9, 1916, ibid. (“I am a Darwinian, and Croly, Lippmann et al. seem to me really theologians—for they believe either in goodness or in sin as original and they have what I take to be a pathetic trust in environmental change.”).

203. See, for example, Holmes to Frankfurter, July 16, 1916, in Mennel and Compston, Holmes & Frankfurter, 53 (“Laski's articles show his brilliancy and are in the fashion of the day.”).

204. Laski to Holmes, October 23, 1916 in Howe, Holmes–Laski Letters, 1:30.

205. Laski, Harold J., Studies in the Problem of Sovereignty (New Haven: Yale University Press, 1917)Google Scholar, viii, ix–x.

206. Holmes to Laski, March 15, 1917 in Howe, Holmes–Laski Letters, 1:67.

207. Laski, Harold J., Authority in the Modern State (New Haven: Yale University Press, 1919)Google Scholar, 10. The dedication greatly pleased Holmes. Holmes to Laski, March 7, 1919 in Howe, Holmes–Laski Letters, 1:188.

208. “The Book of Oliver,” March 24, 1917, ibid., 1:72.

209. See, for example, Holmes to John Gray, February 21, 1915, at 1, OWHP, reel 24, page 534, box 33, folder 25 (“The young fellows give me much pleasure – but the dearest of them, Frankfurter . . . .”).

210. Holmes to Frankfurter, January 17, 1916, in Mennel and Compston, Holmes & Frankfurter, 43 (commenting on Felix Frankfurter, “The Law and the Law Schools,” Reports of the American Bar Association 40 [1915]: 365–73).

211. Holmes to Frankfurter, January 13, 1917, in Mennel and Compston, Holmes & Frankfurter, 66.

212. Holmes to Frankfurter, May 4, 1922, ibid., 140

213. Frankfurter to Holmes, May 16, 1922, ibid., 141. Holmes praised Frankfurter's other publications. See, for example, Holmes to Frankfurter, May 22, 1925, ibid., 183; Holmes to Frankfurter, July 30, 1925, ibid., 188.

214. Holmes to Frankfurter, March 18, 1927, ibid.; and Holmes to Frankfurter, September 9, 1927, ibid., 216.

215. Frankfurter, Felix and Landis, James M., Business of the Supreme Court: A Study in the Federal Judicial System (New York: Macmillan, 1928)Google Scholar: v. The dedication pleased Holmes. Holmes to Frankfurter, November 11, 1927, in Mennel and Compston, Holmes & Frankfurter, 219; and Holmes to Frankfurter, November 26, 1927, ibid., 220.

216. Frankfurter and Greene, The Labor Injunction.

217. Holmes to Frankfurter, March 5, 1930, in Mennel and Compston, Holmes & Frankfurter, 250. For additional positive comments, see Holmes to Frankfurter, March 25, 1930, ibid., 253.

218. Frankfurter to Holmes, March 17, 1930, ibid., 251.

219. See Interview of Alger Hiss by John S. Monagan, January 18, 1980: 2, 60–62, Monagan Papers, Harvard Law School Special Collections, box 1, folder 1-8; Interview of Thomas Corcoran by John S. Monagan, August 16, 1979: 25–26, ibid., box 1, folder 1-3.

220. Holmes to Frankfurter, November 8, 1930, in Mennel and Compston, Holmes & Frankfurter, 259 (commenting on Frankfurter, Felix, The Public & Its Government [New Haven: Yale University Press, 1930])Google Scholar.

221. See, for example, Holmes to Laski, October 22, 1922, in Howe, Holmes–Laski Letters, 1:456 (“Ball's Bluff 61 years ago, yesterday”); Holmes to Frankfurter, October 23, 1931, in Mennel and Compston, Holmes & Frankfurter, 266 (“Two days ago was Ball's Bluff day when I was knocked out 70 years ago . . . .”).

222. Oliver Wendell Holmes, Memorial Day Address, May 30, 1884, in Lerner, The Mind and Faith of Justice Holmes, 9–17.

223. Philip Littell, “Books and Things,” New Republic, May 29, 1915, 100.

224. Oliver Wendell Holmes, The Soldier's Faith, May 30, 1895, in Lerner, The Mind and Faith of Justice Holmes, 18–25.

225. Letter from Roosevelt to Lodge, June 5, 1895, in Selections from the Correspondence of Theodore Roosevelt and Henry Cabot Lodge, 1884–1918 ed. Lodge, Henry C. (New York: Charles Scribner's Sons: 1925)Google Scholar, 1:146. For Roosevelt's reasons for nominating Holmes, see Letter from Roosevelt to Lodge, July 10, 1902, ibid., 1:517–19; White, Inner Self, 299–307; and Garraty, John A., “Holmes's Appointment to the U.S. Supreme Court,” New England Quarterly 22 (1949): 291–303CrossRefGoogle Scholar.

226. Christie to Holmes, March 6, 1915 at 1, OWHP, reel 31, page 73, box 41, folder 12. See Holmes to Frankfurter, April 16, 1915, in Mennel and Compston, Holmes & Frankfurter, 29.

227. Holmes to Moncheur, OWHP, December 30, 1915, reel 26, page 345, box 35, folder 31.

228. Ibid. See Christie to Frankfurter, November 21, 1915, at 2, FF-LC, box 43, folder “Christie, Loring C. 1915.”

229. Frankfurter to Holmes, November 16, 1916, in Mennel and Compston, Holmes & Frankfurter, 60.

230. See Holmes to Frankfurter, March 5, 1917, ibid., 68.

231. Phillips, Felix Frankfurter Reminisces, 114–15.

232. Frankfurter, Foreword, Holmes–Laski Letters, 1: xiv.

233. Lippmann, “To Justice Holmes,” 156. Lippmann concluded his impressions of famous men with this profile. Lippmann, Walter, Men of Destiny (New York: Macmillan, 1927), 242–44Google Scholar. Lippmann's decision to conclude the book with this profile pleased Holmes. Holmes to Laski, September 1, 1927, in Howe, Holmes–Laski Letters, 2:976.

234. Frankfurter quoted Holmes on the title page of his Interstate Commerce Act casebook. Frankfurter, Felix, ed., A Selection of Cases under the Interstate Commerce Act (Cambridge: Harvard University Press, 1915)Google Scholar.

235. Laski to Holmes, December 16. 1916, in Howe, Holmes–Laski Letters, 1:42–4.

236. Holmes's photograph adorned the issue's first page. See Harvard Law Review 29 (1916): 565Google Scholar.

237. John H. Wigmore, “Justice Holmes and the Law of Torts,” ibid., 601.

238. Felix Frankfurter, “The Constitutional Opinions of Justice Holmes,” ibid., 698.

239. Morris R. Cohen, “The Place of Logic in the Law,” ibid., 622–39; Eugen Ehrlich, “Montesquieu and Sociological Jurisprudence,” ibid., 582–600; and Roscoe Pound, “Equitable Relief against Defamation and Injuries to Personality,” ibid., 640–82.

240. See Holmes to Frankfurter, April 13, 1916, in Mennel and Compston, Holmes & Frankfurter, 51.

241. Holmes to Frankfurter, April 29, 1916, in ibid., 52 (“Please express to Pound my high appreciation of the honor he did me by contributing to the April Harvard Law Review.”); Holmes to Wigmore, April 13, 1916, OWHP, reel 26, page 370, box 35, folder 32 (“The Law Review has come – and all that I can say is that your kindness brought tears to my eyes. I never expected such a reward and you have given me unmixed joy.”).

242. “To Justice Oliver Wendell Holmes: An Anniversary Obligation,” Illinois Law Review 10 (1916): 617Google Scholar.

243. Holmes to Lady Asquith, June 28, 1916, OWHP, reel 26, page 382, box 35, folder 32. For similar comments, see Holmes to Einstein, July 11, 1916, in Peabody, Holmes–Einstein Letters, 133; and Holmes to Clara Stevens, May 13, 1916, OWHP, reel 26, page 375, box 35, older 32

244. Holmes to Moncheur, October 23, 1916, OWHP, reel 26, page 400, box 36, folder 1.

245. Holmes, Oliver Wendell, “Natural Law,” Harvard Law Review 32 (1918): 40CrossRefGoogle Scholar; Laski to Holmes, August 27, 1918, in Howe, Holmes–Laski Letters, 1:163. On Laski's stint as the Harvard Law Review's book review editor and his efforts to “keep the ship afloat” during World War I, see Chafee, Zechariah Jr., “Harold Laski and the Harvard Law Review,” Harvard Law Review 63 (1950): 1398–1400Google Scholar.

246. Laski to Holmes, January 14, 1920, in Howe, Holmes–Laski Letters, 1:233.

247. Holmes, Collected Legal Papers, v.

248. See, for example, Frankfurter to Holmes, November 22, 1920, in Mennel and Compston, Holmes & Frankfurter, 97.

249. Croly to Holmes, November 30, 1920, OWHP, reel 30, page 366, box 40, folder 21.

250. Holmes to Moncheur, April 4, 1919, ibid., reel 36, page 520, box 36, folder 4 (quoting Haldane as calling Holmes “the greatest living legist”); Laski to Holmes, July 18, 1920, in Howe, Holmes–Laski Letters, 1:270 (“[Haldane] talked vividly of his crossing with you, of the dissent in Abrams v. U.S., the influence of The Common Law . . .”); Holmes to Laski, November 17, 1920, ibid., 291 (sending advance copies to the British, including “Pollock, Dicey, Haldane, Leslie Scott, and the British Academy”).

251. Croly to Holmes, November 30, 1920, OWHP, reel 30, page 366, box 40, folder 21.

252. Frankfurter to Cohen, March 4, 1921, in Rosenfield, Leonora Cohen, Portrait of a Philosopher: Morris R. Cohen in Life and Letters (New York: Harcourt, Brace & Company, 1962), 251Google Scholar.

253. Cohen, Morris R., “Justice Holmes,” New Republic, February 2, 1921, 294Google Scholar.

254. Ibid., 295.

255. Holmes to Cohen, January 30, 1921, at 1–2, OWHP, reel 30, page 37, box 40, folder 10 and in “The Holmes–Cohen Correspondence,” ed. Cohen, Felix S., Journal of the History of Ideas 9 (1948), 27Google Scholar. For more on Holmes's delight about Cohen's review, see Holmes to Pollock, February 9, 1921, in Howe, Holmes–Pollock Letters, 2:64.

256. Philip Littell, “Books and Things,” New Republic, February 23, 1921, 380.

257. Holmes to Clara Stevens, February 20, 1921, OWHP, reel 26, page 646, box 36, folder 7.

258. See Bryce, Lord, “Notices of Books: Mr. Justice Holmes's Papers,” Journal of Comparative Legislation and International Law 4 (1922): 119–20Google Scholar; Cook, Walter Wheeler, “Review of Collected Legal Papers by Oliver Wendell Holmes,” Yale Law Journal 30 (1921): 775–76CrossRefGoogle Scholar; Carson, Hampton L., “Review of Collected Legal Papers by Oliver Wendell Holmes,” Harcourt, Brace, & Howe 1920,” University of Pennsylvania Law Review 69 (1921): 291–94CrossRefGoogle Scholar; Cushman, Robert Eugene, “Review of Collected Legal Papers, by Oliver Wendell Holmes,” The Mississippi Valley Historical Review 8 (1921): 208–9CrossRefGoogle Scholar; Goebel, Julius Jr., “Review of Collected Legal Papers, by Oliver Wendell Holmes,” Virginia Law Review 7 (1921): 494–95CrossRefGoogle Scholar; Gregory, Charles Noble, “Review of Collected Legal Papers, by Oliver Wendell Holmes,” American Journal of International Law 15 (1921): 490–92CrossRefGoogle Scholar; Hand, Learned, “Review of Collected Legal Papers, by Oliver Wendell Holmes,” Political Science Quarterly 36 (1921): 528–30CrossRefGoogle Scholar; Hough, Charles, “Review of Collected Legal Paper, by Oliver Wendell Holmes,” Columbia Law Review 21 (1921): 296–98CrossRefGoogle Scholar; Kocourek, Austin, “Book Review,” Illinois Law Review 16 (1921):156–61Google Scholar; Patterson, Edwin W., “Book Review,” Iowa Law Bulletin 6 (1921): 250–51Google Scholar; Philbrick, Francis S., “A Genial Sceptic,” The Freeman, June 29, 1921: 378–79Google Scholar; Whiteside, Horace E., “Book Review,” Cornell Law Quarterly 6 (1921): 353–62Google Scholar; Powell, Thomas Reed, “Mr. Justice Holmes,” The Nation, February 9, 1921: 238–39Google Scholar; and Tufts, James H., “The Legal and Social Philosophy of Mr. Justice Holmes,” American Bar Association Journal 7 (1921): 359–63Google Scholar.

259. See previous note.

260. Holmes to Frankfurter, August 30, 1921, in Mennel and Compston, Holmes & Frankfurter, 122.

261. Frankfurter to Holmes, September 1, 1921, ibid., 123.

262. Frankfurter to Cohen, March 4, 1921, in Rosenfield, Portrait of a Philosopher, 251.

263. Pound, Roscoe, “Judge Holmes's Contributions to the Science of Law,” Harvard Law Review 34 (1921): 453CrossRefGoogle Scholar.

264. Haldane, Richard Burdon, “Mr. Justice Holmes,” New Republic, March 9, 1921, 34Google Scholar. For Holmes's pleasure over the review, see Brandeis to Frankfurter, March 9, 1921, in Urofsky and Levy, “Half Brother, Half Son,” 68.

265. Holmes to Lady Scott, March 16, 1921, OWHP, reel 26, page 664, box 36, folder 7.

266. Holmes to Moncheur, May 2, 1921, OWHP, reel 26, page 677, box 36, folder 8.

267. Holmes to unknown, November 30, 1921, OWHP, reel 26, page 720, box 36, folder 9.

268. Frederick Trevor Hill, “A Legal ‘Autocrat,’” New York Times, April 3, 1921, 41. See also “Distinguished Sons of Distinguished Fathers,” Washington Post, July 17, 1921, 47 (describing Holmes as “the son of the great author” and that “Justice Holmes has inherited much of his father's sane outlook on life and has a keen sense of humor.”).

269. Holmes, Collected Legal Papers; Holmes, Oliver Wendell, Speeches (Boston: Little, Brown, 1913)Google Scholar; but Holmes, Oliver Wendell Junior, Speeches (Boston: Little, Brown, 1891)Google Scholar. Holmes's father died in 1894.

270. “Mr. Justice Holmes,” New Republic, December 20, 1922, 84, in FF-LC, box 194, scrapbook “Writings 1913–1924,” 156a.

271. Holmes to Frankfurter, December 22, 1922, in Mennel and Compston, Holmes & Frankfurter, 149–50. For similar comments, see Holmes to Nina Gray, Dec. 26, 1922, OWHP, reel 23, page 884, box 32, folder 19; Holmes to Pollock, December 31, 1922, in Howe, Holmes–Pollock Letters, 2:108–9.

272. Frankfurter, Felix, “Twenty Years of Mr. Justice Holmes' Constituional Opinions,” Harvard Law Review 36 (1923): 909–39CrossRefGoogle Scholar. For Holmes's reaction, see Holmes to Frankfurter, July 3, 1923, in Mennel and Compston, Holmes & Frankfurter, 154.

273. “Honor to Justice Holmes,” Time, July 16, 1923.

274. “Judges and Statesman,” New Republic, September 12, 1923, 62.

275. “Mr. Justice Holmes,” New Republic, March 17, 1926, 89, in FF-LC, box 195, scrapbook “Writings 1925–1928,” 26.

276. Holmes to Frankfurter, March 17 (or 27), 1926, in Mennel and Compston, Holmes & Frankfurter, 200. See, also, Brandeis to Frankfurter, March 14, 1926, in Urofsky and Levy, “Half Brother, Half Son,” 235 (suggesting the editorial “will add to his happiness”).

277. “Mr. Justice Holmes,” New York World, March 8, 1926, 10, in OWHP, reel 41, page 488, box 54, folders 10–11; Lippmann to Holmes, March 10, 1926, ibid., reel 15, page 185, box 16, folder 6 (enclosing articles by Lippmann and Hand in honor of Holmes's birthday and adding “my own deep appreciation for you”).

278. Frankfurter, Felix, “Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court,” Harvard Law Review 41 (1927): 121–73CrossRefGoogle Scholar. Frankfurter, Felix, Mr. Justice Holmes and the Constitution: A Review of His Twenty-Five Years on the Supreme Court (Cambridge: Dunster House Bookshop, 1927)Google Scholar. On Holmes's happiness over the article, see Brandeis to Frankfurter, December 20, 1927, in Urofsky and Levy, “Half Brother, Half Son,” 314; and Holmes to Pollock, January 7, 1928, in Howe, Holmes–Pollock Letters, 2:211.

279. Philip Littell, “A Judge's Prose,” New Republic, January 4, 1928, 195.

280. “The Oldest Justice,” New York World, October 5, 1928, 12, in OWHP, reel 40, page 479, box 54, folders 10–11.

281. Hand, Learned, “Mr. Justice Holmes,” Harvard Law Review 43 (1930): 857–62CrossRefGoogle Scholar.

282. Laski, Harold J., “Mr. Justice Holmes,” Harper's, March 1930, 416Google Scholar.

283. Holmes to Nina Gray, February 26, 1930, at 2, OWHP, reel 24, page 362, box 33, folder 17. For similar comments, see Holmes to Pollock, April 6, 1930, in Howe, Holmes–Pollock Letters, 2:260–61.

284. Laski, Harold J., “The Political Philosophy of Mr. Justice Holmes,” Yale Law Journal 40 (1931): 683–95CrossRefGoogle Scholar; and Laski to Holmes, January 10, 1931, in Howe, Holmes–Laski Letters, 2:1303.

285. Frankfurter, Felix, review of The Dissenting Opinions of Mr. Justice Holmes, Virginia Law Review 16 (1930): 743–44Google Scholar.

286. Frankfurter, Felix, “The Early Writings of O.W. Holmes, Jr.,” Harvard Law Review 44 (1931): 717–24CrossRefGoogle Scholar.

287. Frankfurter, Felix, ed. Mr. Justice Holmes (New York: Coward–McCann, 1931)Google Scholar.

288. George W. Wickersham, review of Mr. Justice Holmes, American Bar Association Journal (September 1931): 613. Frankfurter wrote that if he and Wigmore “belong to the same ‘school of thought,’ then I should think the ‘school’ is sufficiently comprehensive for Mr. Wickersham also to find himself at home in it.” Felix Frankfurter, Letter to the Editor, September 8, 1931, American Bar Association Journal (November 1931): 776.

289. Holmes to Einstein, June 4, 1924, in Peabody, Holmes–Einstein Letters, 226. For similar observations and comments, see Brandeis to Frankfurter, July 3, 1924, in Urofsky and Levy, “Half Brother, Half Son,” 170; and Holmes to Clara Stevens, March 29, 1926, at 3, OWHP, reel 27, page 48, box 36, folder 17.

290. Time, March 15, 1926.

291. Holmes to Hoover, October 3, 1929, OWHP, reel 27, page 330, box 36, folder 26.

292. E.B. White, Comment, New Yorker, June 22, 1929, 11.

293. Ibid.

294. “Mr. Justice Holmes at Ninety,” New Republic, March 11, 1931, 87.

295. “Hoover Felicitates Holmes on Birthday,” New York Times, March 8, 1931, 16; and Holmes to Hoover, March 7, 1931, OWHP, reel 27, page 465, box 36, folder 29.

296. “Holmes, 90, Greets Nation Over Radio; Lauded by Hughes,” New York Times, March 9, 1931, 1; Holmes to Dean Clark, March 12, 1931, OWHP, reel 27, page 468, box 36, folder 29 (“You added so much to the happiness of my birthday that it would have been much less but for you. Everything went off delightfully and even the dread plunge in the unknown of the radio became a pleasure.”).

297. “Holmes, 90,” New York Times, March 9, 1931, 1.

298. Ibid.

299. Ring Lardner wrote: “In the opinion of the undersigned, who has had some slight experience in talking into a microphone, Justice Oliver Wendell Holmes did pretty well in his radio debut last night, at least well enough to be entitled to another trial. You must remember he is just a kid breaking in and it is no wonder his voice was a little shaky. With the right kind of teaching he ought to be ready to step in next fall and take charge of one of the minor games like Harvard and Bates or Army v. Ursinus.” “A Night Letter from Ring Lardner,” Chicago Tribune, Mar. 10, 1931: 3. See “Judiciary: A Little Finishing Canter,” Time, March 16, 1931, 18; Editorial, Christian Science Monitor, March 10, 1931,16; “Mr. Justice Holmes at 90,” Baltimore Sun, March 9, 1931, 8; and “Justice Holmes at Ninety,” Los Angeles Times, March 10, 1931, A4.

300. “Holmes, 90,” New York Times, March 9, 1931,1

301. “Your kind thoughtfulness in coming here the other day sets me free to express my congratulations and good wishes to you. They are very sincere and follow seems to me a most fortunate beginning of the term. Old age has made it hard for me to write with this brief expression of confident prophecies for the future. With deep respect I am Your obedient servant. O.W. Holmes.” Holmes to Roosevelt, March 16, 1933, OWHP, reel 40, page 373, box 52, folder 29.

302. “At 5:30 Franklin, James, and I went to Justices Holmes. He is a fine old man with flashes of his old wit and incisiveness.” Eleanor Roosevelt to Lorena Hickok, March 8, 1933, at 3, Lorena Hickok Papers, Franklin Delano Roosevelt Library, box 1 “Mar–Nov.1933”; and “Memorandum by Frankfurter of a visit with Roosevelt on March 8, 1933, when the President asked Frankfurter to become Solicitor General,” March 15, 1933, in Roosevelt & Frankfurter: Their Correspondence, ed. Freedman, Max (Boston: Little, Brown, 1967): 110–14Google Scholar. The document details lunch with Holmes, former secretary Thomas Corcoran, and current secretary Donald Hiss, including champagne during Prohibition and mentioning meeting at Holmes's residence at 5:30 with Roosevelt, Mrs. Roosevelt, and Jimmy. See Phillips, Felix Frankfurter Reminisces, 247; “Recollection of Donald Hiss,” in The Making of the New Deal, ed. Louchheim, Katie (Cambridge: Harvard University Press, 1983), 36–38Google Scholar. Hiss recalled a “very animated” yet “very easy” conversation between Roosevelt and Holmes about swords Holmes's maternal grandfather had used during the French and Indian War, and apocryphal words of advice to “stop the retreat, blow your trumpet, have them give the order to charge.” Interview of Donald Hiss, October 13, 1979 and June 3, 1980, Monagan Papers, Harvard Law School, at 6, 25, 43–45, box 1, folder 9. For other recollections, see Monagan, Grand Panjandrum, 1–3; Interview of Annie M. Coakley (Mary Donnellan), November 28, 1979, 36, Monagan Papers, box 1, folder 1–2; James Roosevelt & Sidney Shalett, Affectionately, FDR: A Son's Story of a Lonely Man (New York: Harcourt, Brace & Company, 1959), 92; “President and Wife Call on Mr. Holmes,” New York Times, March 9, 1933, 17; and “The Presidency: The Roosevelt Week,” Time, March 20, 1933, 9.

303. Roosevelt to Holmes, March 8, 1934, OWHP, reel 40, page 2, box 52, folder 20.

304. “Military Funeral to Honor Holmes,” New York Times, March 7, 1935, 1. “At the grave in Arlington there was a brief pause until the White House car arrived. Supported by an aide the President walked slowly to the open grave.” John Knox, “Some Correspondence with Holmes and Pollock,” Chicago Bar Record, 222, in John Knox Papers, Georgetown University, box 1, folder 53. Frankfurter, who had spent the days before Holmes's funeral with Roosevelt, wrote: “I shall always associate his meaning for me with you, at the most poignant and triumphant hours of life.” Frankfurter to Roosevelt, March 7, 1935, in Freedman, Roosevelt & Frankfurter, 257 (emphasis in original).

305. New York Times, March 9, 1935, 16.

306. Patterson v. Colorado ex rel. Attorney General of Colorado, 205 U.S. 454, 462 (1907).

307. See, for example, Whitney v. California, 274 U.S. 357, 372 (1927) (Brandeis, J., concurring); and Schaefer v. United States, 251 U.S. 466, 482 (1920) (Brandeis, J., dissenting).

308. On Holmes's lack of sympathy toward the rights of African-Americans, see Alschuler, Law Without Values, 56–58; White, Inner Self, 333–43; Rogat, A Dissenting Opinion II, 255.

309. Holmes to John C. Wu, June 21, 1928, in Justice Holmes to Doctor Wu: An Intimate Correspondence, 1921–1932 (New York: Central Book Company, c. 1947), 48Google Scholar. For similar comments, see Holmes to Laski, November 5, 1926, in Howe, Holmes–Laski Letters, 2:893.

310. Gong Lum v. Rice, 275 U.S. 78 (1927); McCabe v. Atchison, Topeka & Santa Fe Ry., 235 U.S. 151, 164 (1914); United States v. Reynolds, 235 U.S. 133, 150 (1914) (Holmes, J., concurring); Bailey v. Alabama, 219 U.S. 219, 245 (1911) (Holmes, J., dissenting); and Berea College v. Kentucky, 211 U.S. 45 (1908) (Holmes, J., concurring in the judgment). Then–Justice Hughes was more progressive than Holmes on race. Hughes criticized Holmes's unpublished memo in McCabe as interpreting the Fourteenth Amendment as not prohibiting racial discrimination. See Hughes to Holmes, November 29, 1914, in Bickel, Alexander M. and Schmidt, Benno C. Jr., History of the Supreme Court of the United States: The Judiciary and Responsible Government, 1910–1921, vol. IX (New York: Macmillan, 1984)Google Scholar. Even Frankfurter acknowledged that in Bailey v. Alabama, Hughes had “much better a nose . . . for the actual operation of peonage laws in the South than Holmes.” Frankfurter to Cohen, October 3, 1916 in Rosenfield, Portrait of a Philosopher, 248.

311. Buchanan v. Warley, 245 U.S. 60, 80-82 (1917).

312. Holmes draft Buchanan dissent, at 1, OWHP, reel 61, page 651, box 80, folder 12. For commentary of Holmes's unpublished draft dissent, see Bickel and Schmidt, History of the Supreme Court of the United States, 592, 804–10; Bernstein, David E., “Philip Sober Controlling Philip Drunk: Buchanan v. Warley in Historical Perspective,” Vanderbilt Law Review 51 (1998): 855–56Google Scholar.

313. Giles v. Harris , 189 U.S. 475, 488 (1903).

314. Greene, “The Anticanon,” 429 (asserting that Giles “should be—the most prominent stain on the name of the Oliver Wendell Holmes”); Pildes, Richard H., “Democracy, Anti-Democracy, and the Canon,” Constitutional Canon, 17 (2000)Google Scholar: 306 (describing it as “the most legally disingenuous analysis in the pages of the U.S. Reports”); Gerard Magliocca, “The Worst Supreme Court Opinion Ever?” Concurring Opinions blog, posted May 20, 2011 http://www.concurringopinions.com/archives/2011/05/the-worst-supreme-court-opinion-ever.html (October 20, 2011).

315. Nixon v. Herndon, 273 U.S. 536, 540–41 (1927).

316. Brandeis to Frankfurter, March 9, 1927, in Urofsky and Levy, “Half Brother, Half Son,” 278.

317. Moore v. Dempsey, 261 U.S. 86 (1923); and Frank v. Magnum, 237 U.S. 309, 346 (1915) (Holmes. J., dissenting). See Leo Frank to Holmes, July 10, 1915, OWHP, reel 31, page 363, box 43, folder 2.

318. Holmes to Laski, August 24, 1927, in Howe, Holmes–Laski Letters, 2:974. For similar comments, see Holmes to Laski, July 10, 1930, ibid., 2:1265; and Holmes to Einstein, August 14, 1927, in Peabody, Holmes–Einstein Letters, 272.

The term after Holmes retired, Frankfurter wrote a New York Times article praising the Court's decision ordering new trials for the Scottsboro Boys. See Felix Frankfurter, “A Notable Decision,” New York Times, November 13, 1932, E1; and Powell v. Alabama, 287 U.S. 45 (1932).

319. See, for example, McGerr, Michael, A Fierce Discontent: The Rise and Fall of the Progressive Movement in America, 1870–1920 (New York: Free Press, 1993)Google Scholar, 182–218 (discussing the Progressive Movement's support for segregation).

320. Urofsky, Louis D. Brandeis, 639–40; and Christopher Bracey, A., “Louis Brandeis and the Race Question,” Alabama Law Review 52 (2001)Google Scholar: 859.

321. See, for example, Louis Brandeis to Alice Brandeis, November 23, 1913, in The Family Letters of Louis Brandeis, eds. Urofsky, Melvin I. and Levy, David W. (Norman, OK: University of Oklahoma Press, 2002), 224Google Scholar.

322. Frankfurter wrote two unsigned editorials: “Brandeis,” New Republic, February 5, 1916, 4–6 and “Brandeis and the Shoe Machinery Company,” New Republic, March 4, 1916, 117–19, in FF–LC, box 194, scrapbook “Writings 1913–1925.” Others included: Editorial, New Republic, March 11, 1916, 139 and “The Case Against Brandeis,” New Republic, March 25, 1916, 202–4.

323. See Holmes to Einstein, May 14, 1916, in Peabody, Holmes–Einstein Letters, 128; Holmes to Stevens, May 13, 1916, at 2, OWHP, reel 26, page 376, box 35, folder 32.

324. Holmes to Moncheur, December 4, 1916, at 1–2, OWHP, reel 26, page 404, box 36, folder 1.

325. Taft to Henry Stimson, May 18, 1928, at 2, Henry Stimson Papers, Yale University, reel 75, page 867 (writing about Holmes's and Brandeis's dissents in Myers v. United States). On Taft's opposition to Brandeis's nomination, see Urofsky, Brandeis, 438.

326. See, for example, Holmes to Moncheur, April 9, 1918, at 2, OWHP, reel 26, page 476, box 36, folder 3; Holmes to Laski, December 3, 1918, in Howe, Holmes–Laski Letters, 1:176.

327. See, for example, Holmes to Frankfurter, December 22, 1920, in Holmes & Frankfurter, 99 (“I didn't agree with Brandeis first, that this wasn't a war statute—it was passed and applied in time of war. It was none of the defendant's business whether it would or would not be applied in time of peace, or would or would not be repealed then.”).

328. Holmes to Nina Gray, March 5, 1921, at 3, OWHP, reel 23, page 775, box 32, folder 15.

329. Holmes to Pollock, May 26, 1919, in Howe, Holmes–Pollock Letters, 2:13; and Holmes to Laski, May 18, 1919, in Howe, Holmes–Laski Letters, 1:204–5.

330. “Whenever he left my house I was likely to say to my wife, ‘There goes a really good man.’ . . . . In the moments of discouragement that we all pass through, he always has had the happy word that lifts up one's heart.” Holmes, Oliver Wendell, “Introduction,” in Mr. Justice Brandeis, ed. Frankfurter, Felix (New Haven: Yale University Press, 1932)Google Scholar, ix.

331. Auerbach, Jerold S., Rabbis and Lawyers: The Journey from Torah to Constitution (Bloomington: Indiana University Press, 1990)Google Scholar, 151 (describing increasing legal opportunities during World War I for “the older generation of German Jews” with newer Eastern European Jews relegated “to the lowest strata of professional life”). See, Hollinger, “The ‘Tough Minded’ Justice Holmes, Jewish Intellectuals, and the Making of an American Icon.”

332. Holmes to Nina Gray, March 5, 1921, at 2–3, OWHP, reel 23, pages 774–75, box 32, folder 15.

333. “To me it is queer to see the wide-spread prejudice against the Jews. I never think of the nationality and might even get thick with a man before noticing that he was a Hebrew. You know the poem: ‘How odd—Of God—To choose—The Jews.’” Holmes to Pollock, October 31, 1926, in Howe, Holmes-Pollock Letters, 2:191.

334. Holmes to Laski, January 12, 1921, in Howe, Holmes–Laski Letters, 1:304–5 (asking “whether loveableness is a characteristic of the better class of Jews. When I think how many of the younger men that have warmed my heart have been Jews I cannot but suspect it, and put the question to you . . . .”). For similar comments, see Holmes to Laski, May 8, 1918, ibid., 1:152; Holmes to Einstein, January 5, 1919, in Peabody, Holmes–Einstein Letters, 180; and Holmes to Pollock, April 5, 1919, in Howe, Holmes–Pollock Letters, 2:8. Brandeis, however, made generalizations about Jews: “There is in the Jew a certain potential spirituality and sense of public service which can be more easily aroused and directed, than at present is discernible in American non-Jews.” Brandeis to Frankfurter, October 13, 1929, in Urofsky and Levy, “Half Brother, Half Son,” 395.

335. Brandeis to Frankfurter, September 24, 1925, in Urofsky and Levy, “Half Brother, Half Son,” 212.

336. White, “Holmes's Life Plan,” 1411.

337. Holmes to Nina Gray, December 2, 1910, OWHP, reel 23 page 517, box 32, folder 5.

338. Holmes to Moncheur, July 23, 1917, OWHP, reel 26, page 436, box 36, folder 2. For similar comments, see Holmes to Laski, March 26, 1925, in Howe, Holmes–Laski Letters, 1:723; and White, Inner Self, 296.

339. Mark DeWolfe Howe, “Mr. Justice Holmes and His Secretaries,” New York Times Magazine, April 8, 1951, 44.

340. Baum, Judges and Their Audiences, 22.

341. Ibid., 50–60, 101–4, 135–39.

342. Derby, Augustin, “Recollections of Mr. Justice Holmes,” New York University Law Quarterly 12 (1935): 348Google Scholar.

343. W. Barton Leach to Holmes Secretaries, Meeting of Holmes's Secretaries: Notes of Reminisces, at 2, March 15, 1940, Francis Biddle Papers, Franklin Delano Roosevelt Library, box 14, scrapbooks: Solicitor General II–January 1940–August 1941.

344. Alger Hiss, “Observations on the processes followed by Justice Holmes in carrying out his judicial duties the October Term 1929,” June 1938, FF–LC, box 225, folder “Miscellany.” Holmes wrote: “The decisions under the revenue acts have little weight as against legislation under the afflatus of the Eighteenth Amendment.” Danovitz v. United States, 281 U.S. 389, 397 (1930).

345. Hiss to Frankfurter, May 9, 1930, at 1–2, FFLC, box 145, folder “Holmes, Oliver Wendell 1929–30 Hiss, Alger, Lockwood, John.”

346. Posner, Richard A., “What Do Judges Maximize?” in Overcoming Law (Cambridge: Harvard University Press, 1995), 118–19Google Scholar (arguing that judges maximize “prestige” [which is “distinct from popularity”] and “reputation” among “other judges . . . and with the legal profession at large”).

347. Holmes to Moncheur, May 2, 1921, OWHP, reel 26, page 677, box 36, folder 8.

348. Holmes to Laski, August 16, 1924, in Howe, Holmes–Laski Letters, 1:647. Holmes also wrote: “I have a little case—whether it will go or not I don't know. As originally written, it had a tiny pair of testicles but the scruples of my brethren have caused their removal and it sings in a very soft voice now . . . .” Holmes to Frankfurter, October 24, 1920, in Mennel and Compston, Holmes & Frankfurter, 95. For similar comments, see Holmes to Laski, November 17, 1920, in Howe, Holmes–Laski Letters, 1:291.

349. Taft to Stimson, May 18, 1928, at 2–3, Stimson Papers, reel 75, page 867.

350. Kramer, Larry D., The People Themselves: Popular Constitutionalism and Judicial Review (New York: Oxford University Press, 2004), 215–17Google Scholar; and Nourse, “Tale of Two Lochners,” 794–96.

351. Oliver Wendell Holmes, John Marshall, in Holmes, Collected Legal Papers, 270.