Naming A Justice


Madison’s next suggestion would have changed American history. John Quincy Adams, ambassador to Russia, one of the most intelligent and thoughtful political figures alive, won unanimous approval, delighting his father and mother. But although Abigail Adams, as she said, would rather her son held “the office of judge, than that of a foreign embassy or even Chief Magistrate of the United States,” he declined.

Finally, Madison gave up. He let the matter sit for six months and then nominated Joseph Story, a former congressman who was at the moment Speaker of the Massachusetts House of Representatives. Only thirty-two years old, but already a prolific author and nationally known lawyer, Story was as ebullient as he was scholarly. “When he was in a room,” a contemporary said, “few others could get in a word; but it was impossible to resent this, for he talked evidently not to bear down others, but because he could not help it.”

Jefferson did not applaud the nomination. He called Story a “tory,” and, worst of all, a “pseudo-Republican.” Madison, however, had listened to enough eructation from Monticello. Perhaps the Senate shared his weariness; confirmation came only three days after Madison submitted Story’s name. By February 1812 he was was on the bench, just in time to help usher Court and nation into the commercial and industrial expansion of the nineteenth century—and incidentally remained an active professor at the Harvard Law School and wrote a series of treatises that shaped American legal thought into the time of Oliver Wendell Holmes. (Jefferson, it turned out, need not have worried about the lawsuit in the first place. When it came up for trial before Tyler and Marshall, they opined that Livingston should have sued in a Louisiana court, and allowed an opening-round motion to dismiss.)

If the brilliant Story went to the Supreme Court only because the President could find no one more politically suitable, Oliver Wendell Holmes, equally outstanding, almost missed his elevation because a President misread the political message of a speech Holmes had given.

Holmes had long coveted a Supreme Court seat. In 1879 he told the Boston lawyer George B. Upham, a distant relative, that he wished to become chief justice of Massachusetts’s highest court and eventually, “impossible as it might seem,” a justice of the United States Supreme Court. He practiced law and in his spare time wrote the lectures that, published in 1881 as The Common Law , gave an entire new theoretical underpinning to the jurisprudence of crime, contracts, and tort. The lectures, in turn, led to a professorship at the Harvard Law School in 1882. Then, with dramatic suddenness, Holmes received an appointment to the state’s Supreme Judicial Court.

As associate justice and later chief justice, Holmes worked with extraordinary vigor to weave his legal theories into the fabric of the living law. He also delivered a series of addresses, most notably two Memorial Day speeches, in 1884 and 1895, extolling the soldierly virtues of obedience and sacrifice, and a 1901 talk commemorating the centenary of Chief Justice John Marshall’s ascension, in which he observed that Marshall’s greatness resulted more from “fortunate circumstance” than from any origination of “transforming thought.”


Meanwhile, ill health was forcing the retirement of Horace Gray, who had since 1881 occupied the Supreme Court’s “New England seat.” President William McKinley had virtually promised the post to a Boston lawyer named Alfred Hemenway, but by the time Gray finally stepped down, McKinley had been assassinated and the appointment belonged to Theodore Roosevelt.

A historian, a biographer, and an omnivorous reader, TR knew Holmes’s writings well and greatly respected his intellectual capacity. As a war veteran (or at least a soldier who had experienced a battle) he also admired Holmes’s combat record. However, Roosevelt thought he detected in Holmes’s Marshall speech an inability to understand that fitness for the Supreme Court required the candidate to be, as he told Henry Cabot Lodge, a cousin of Holmes who was pushing the nomination, “a party man, a constructive statesman, constantly keeping in mind his adherence to the principles and policies under which this nation has been built up and in accordance with which it must go on; and keeping in mind also his relations with his fellow statesmen who in other branches of the government are striving in cooperation with him to advance the ends of government.”

Was Holmes, Roosevelt wondered, “in entire sympathy with our views” on the status of Puerto Rico and the Philippines? “I should hold myself as guilty of an irreparable wrong to the nation if I should put in [the vacancy] any man who was not absolutely sane and sound on the great national policies for which we stand in public life.” Lodge reassured Roosevelt, and Holmes proceeded to Oyster Bay for a final interview, “under bonds for secrecy,” as he wrote to his friend Nina Lyman Gray. “I dodged the reporters as the President was off for the day on his yacht and I suppose they were not on the lookout. When 1 got there the servant said he would not be back to dinner but the children dined at 7.