One of the most famous of United States Supreme Court judges, Oliver Wendell Holmes was a son of New Englander and Harvard graduate. Born in Boston on March 8, 1841, his father was a famous poet of the same name as well as being a medical doctor. His mother was an active slavery abolitionist.

He fought in the American Civil War for the Union in a regiment that lost more than half of its men.

In 1861, he was wounded in the chest during the Battle of Ball's Bluff but returned to the front to fight in the Battle of Antietam of September 17, 1862. He again was a casualty; this time getting hit in the neck.

Justice Wendell Oliver HolmesAfter the war, he entered law school, at Harvard. He practiced maritime law and often visited England. Benefiting from inheritance, he did not have to work right away. In 1881, he wrote The Common Law.

An extract from this dissertation on the origins of the common law:

"Slaves were surrendered for theft as well as for assault; and it is said that a debtor who did not pay his debts, or a seller who failed to deliver an article for which he had been paid, was dealt with on the same footing as a thief.

"This line of thought, together with the quasi-material conception of legal obligations as binding the offending body, which has been noticed, would perhaps explain the well-known law of the Twelve Tables as to insolvent debtors.

"According to that law, if a man was indebted to several creditors and insolvent, after certain formalities they might cut up his body and divide it among them. If there was a single creditor, he might put his debtor to death or sell him as a slave."

He was appointed a judge in Massachusetts in 1882 when he was 44, and in 1902, was appointed to the United States Supreme Court.

His most famous case came early in his career, in the 1905 case, Lochner.

At issue was a New York state law that set out the hours for bakery workers: ten-hour work days and a 60-hour work week. The majority struck down the law but not if Holmes had his druthers. Writing a minority decision, he reflected that the law ought to be upheld, Fourteenth Amendment freedom to contract notwithstanding:

"State constitutions and state laws may regulate life in many ways which we, as legislators, might think as injudicious, or, if you like, as tyrannical, as this, and which, equally with this, interfere with the liberty to contract. Sunday laws and usury laws are ancient examples. A more modern one is the prohibition of lotteries.

"The liberty of the citizen to do as he likes so long as he does not interfere with the liberty of others to do the same, which has been a shibboleth for some well known writers, is interfered with by school laws, by the Post Office, by every state or municipal institution which takes his money for purposes thought desirable, whether he likes it or not.

"The Fourteenth Amendment does not enact Mr. Herbert Spencer's Social Statics."

In 1917 (Southern Pacific), he wrote of the inclination of judges towards activism and the fine line for judges between interpreting the law and setting the law:

"(J)udges do and must legislate, but they can do so only interstitially; they are confined from molar to molecular motions. A common law judge could not say, 'I think the doctrine of consideration a bit of historical nonsense, and shall not enforce it in my court.'"

Oliver Wendell Holmes stampOn May 2, 1927, he issued reasons for the majority that remain controversial and distasteful even today, and for which he may have been showing his age (86) and a disability to access his formidable wisdom. In Buck v Bell, the issue was a state law that made sterilization of mentally retarded persons mandatory. Holmes justified the Court's position of upholding the law using the following unfortunate words:

"We have seen more than once that the public welfare may call upon the best citizens for their lives. It would be strange if it could not call upon those who already sap the strength of the State for these lesser sacrifices, often not felt to be such by those concerned, in order to prevent our being swamped with incompetence.

"It is better for all the world, if instead of waiting to execute degenerate offspring for crime, or to let them starve for their imbecility, society can prevent those who are manifestly unfit from continuing their kind. The principle that sustains compulsory vaccination is broad enough to cover cutting the Fallopian tubes.

"Three generations of imbeciles are enough."

A year later, the Court had before it the case of US v Schwimmer. A Hungarian, Rosika Schwimmer applied for citizenship but declared herself to be a pacifist. On this basis, she was denied citizenship and the decision was upheld by the US Supreme Court. Holmes, then 87, dissented and wrote:

"She is an optimist, and states in strong and, I do not doubt, sincere words her belief that war will disappear, and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism, nor do I think that a philosophic view of the world would regard war as absurd. But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts, would welcome any practicable combinations that would increase the power on the side of peace. The notion that the applicant's optimistic anticipations would make her a worse citizen is sufficiently answered by her examination, which seems to me a better argument for her admission than any that I can offer.

"Some of her answers might excite popular prejudice, but, if there is any principle of the Constitution that more imperatively calls for attachment than any other, it is the principle of free thought - not free thought for those who agree with us, but freedom for the thought that we hate."

He did not know when to quit. Eventually, he was gently encouraged to so by his court colleagues when he reached 90, the oldest person to ever sit on the Court.

He finally retired on January 12, 1932. Three years later, he died.

As he shares his name with another famous person, his father, the poet Dr. Wendell Oliver Holmes (1809-1894), Justice Holmes is often referred as Wendell Oliver Holmes Junior or "Jr.".

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