COMMENTS ON THE HOLMES DEVISE

THE HOLMES DEVISE:
PERHAPS FELIX’S FOLLY BUT HARDLY AN ILL WIND

COMMENTS BY JOHN E. SEMONCHE ON THE OLIVER WENDELL HOLMES DEVISE HISTORY OF THE SUPREME COURT OF THE UNITED STATES PREPARED FOR THE SESSION TITLED "THE HOLMES DEVISE’ AT THE ANNUAL MEETING OF THE AMERICAN SOCIETY FOR LEGAL HISTORY IN TORONTO, CANADA ON

OCTOBER 22, 1999.

            Allow me to introduce myself. I am a historian with uncanny predictive abilities. I am consistently wrong. Despite what you may think, I assure you that this record is not easy to compile, for even a tossed coin comes up tails now and then. I have shared this secret so that you can appreciate my consternation when, in preparing for this session, I found incontrovertible evidence of inconsistency. I unearthed this embarrassing evidence when I decided to reread a review I had done in 1972 for the North Carolina Law Review. Its subject was the first two published volumes of the Holmes Devise. To my dismay I found that this younger, brash version of myself had more often than not seen the future quite well. Clearly an off day I thought. I also contented myself with the fact that the prediction for the series was based on 2 of the projected 11 volumes. Clearly, such a substantial chunk of evidence might tend to overwhelm any instinctive talent for making incorrect predictions. Now 27 years later when we are missing only the two final volumes, covering the years from 1921 to 1941, we can revisit those early predictions.

            As I then traced the evolution of the Holmes bequest, I implied that it would set no new trend. I could not see hoards of testators following Holmes’s lead and rushing to bequeath the bulk of their estates to "the United States of America," or as it was translated, the federal government. (In the case of Holmes this little gift totaled approximately $263,000 in the depression year of 1935. This sum represents about $3,200,000 in today’s money.) Certainly the future has only confirmed my prediction. Next, I questioned how fitting a memorial the Oliver Wendell Holmes Devise History of the United States Supreme Court would be to the justice whose name it bore. To honor a man who considered brevity a virtue and who often wrote with grace and elegance by a mammoth set of heavily-footnoted tomes seemed perverse indeed. And Justice Felix Frankfurter, apparently the instigator of the project, should have known better. But then Frankfurter had expended much scholarly effort to create an image of Holmes that obscured as much as it illuminated. In my review I suggested that Holmes would have much preferred the simplicity and beauty of a flower garden in Washington, D. C., the early suggestion that was discarded in favor of the history. Was I wrong? I think not. I also said that a history of the Supreme Court that was projected to terminate in 1941 made no sense, either in 1956 when the Permanent Committee supervising the Holmes Devise made that decision or in 1971 when the first volumes appeared. Each passing year has made that terminal date less and less defensible. And although the committee over the years has had to find new contributors to replace those who withdrew or died, it apparently never rethought that initial termination date. Could anyone mount a good defense for the decision to end the history’s coverage on the eve of what many would consider the Court’s most significant era—the last half-century or so? I don’t think so. Finally, based on the Goebel and the first of the Fairman volumes, I said the series promised to be uneven "in both contemplation and execution," and "tied together only by fiat and common funding." Have the subsequent volumes published since 1971 brought a unity of conception, approach or execution that was missing with the first two? I think not.

            How could one who has been so consistently wrong be so right? Was the predictive task so easy that even the cloudiest of crystal balls could not obscure the future? Perhaps a look at the series’ beginnings will give us the answer.

            Following the recommendation of a special committee composed of 3 members each of the House, the Senate and the Supreme Court, Congress in 1955 created the Permanent Committee for the Holmes Devise. It was given the task of supervising the production of a history of the United States Supreme Court to be written by "one or more scholars of distinction." Envisioning a definitive history of the Court, the Permanent Committee opted for a division of the history into discrete chronological volumes that would be assigned to different authors. It outlined its view of the composite history as follows:

The Committee has in mind a history that will be comprehensive, authoritative, and interpretive. It will be self-contained and form an integrated whole, developing its subject chronologically, in the large outline, by distinguishable periods in political, economic, and social history as these are reflected in the work of the Court. Since the totality of the Court’s business is the subject of examination, the investigations will reach far into collateral fields, in order to set the Court at all stages firmly in the political, economic, and intellectual context of the moment. . . . As a whole, the history will seek to portray the Court as a living institution, to trace its vital growth and development, and to show and interpret the interactions between the Court and its cultural environment.

            To those undertaking the task of writing a volume these expectations would become a weighty burden. Could they truly be met? The Committee was initially composed of L. Quincy Mumford, the Librarian of Congress as ex officio chairman, Charles T. McCormick, Edward S. Corwin, George L. Haskins and Virgil M. Hancher. In the summer of 1957 a bevy of equally visible scholars, many of whom agreed only after some arm twisting by Justice Frankfurter, consented to do the volumes under a four-year deadline. This gave the project status and visibility but at a certain cost. The cost was insufficient editorial control over the project, for these generally well-published academics would have resisted the tight editorial control that a unified set of volumes necessitated. As a result, Julius Goebel, Jr. largely ignored the Permanent Committee’s charge as he wrote the type of history he had always been writing. Charles Fairman took the charge more seriously, but he rambled, using some 2500 pages in two volumes and a supplement to cover the 1864-1888 period. Fairman’s encyclopedic and episodic treatment cried out for a sympathetic but firm editorial hand, but none was extended.

            For years the profession heard of the lengths to which the authors and their assistants were going to unearth new material to incorporate in their definitive treatments. I suspect that this search provided the excuse for not doing the writing. For, as we all know, our best excuse for not getting down to the task of writing is not laziness or writer’s block but rather that we need to do more research. In the case of these volumes the basic material was readily available, and the important task was to synthesize that material into a manuscript that told the story effectively. For a number of the selected authors, the burden proved too heavy, the task and expectations too great, and progress toward completion glacially slow. But even the best of prognosticators could hardly have been expected to foresee that the year 2000 would dawn and the series would still lack two of its projected volumes. And all the while the grandiose promise of a definitive history tended to have a chilling effect on other scholars contemplating a swim in the waters of Supreme Court history.

            There were danger signs at the outset of the project that went unheeded and alternatives that should have been further explored, but it may be too easy to look back upon the Holmes Devise undertaking and criticize. Maybe the project was simply cursed with bad luck. Certainly the timing could not have been worse, for the whole field of legal history was on the threshold of being reconceptualized. Furthermore, the consensus approach of the 1950s would not survive the decade. The idea of an objective or definitive history was repudiated. It was considered to be beyond the capacity of self-interested and compromised human agents. History had not generally been regarded as a theoretical discipline, but now its practitioners embraced theory and coaxed the evidence to fit their theories. Whether the new perspective was labeled New Left, Critical Legal Studies, Post-Modernist, Deconstructionist or simply Neo-Marxist, it attracted disciples. If these disciples did not generally agree with each other, they did unite in proclaiming the bankruptcy of the older approaches to the task of writing history. And even those of us who felt that there might be some mileage left in the less fashionable approaches could not envision a definitive history of the Supreme Court, the concept that so dazzled the Permanent Committee in 1956.

            However, for one to conclude that all the effort and work that has gone into the Holmes Devise history has been wasted or misdirected would be wrong. Many of the volumes provide excellent reference material for future scholarship in addition to whatever they, themselves, contribute to our understanding of the Supreme Court. And in certain cases that contribution is not insubstantial.

 

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