Holmes on Writing: “Plum Puddings” or Otherwise

A postcard from Holmes’s getaway in Beverly Farms, Massachusetts.

Since my first year of law school, I’ve been fascinated by Oliver Wendell Holmes Jr., thanks in no small part to Louis Menand’s The Metaphysical Club (2001) and the large portrait of Holmes that hangs in Harvard’s Hauser Hall.

And so it was a special treat to be invited by the Wall Street Journal to review Stephen Budiansky’s wonderful new biography: Oliver Wendell Holmes: A Life in War, Law, and Ideas. In the century-plus since his appointment to the Supreme Court, there has been no shortage of books about him, or books collecting his writings. When readers already have biographies like Menand’s Metaphysical Club and G. Edward White’s Justice Oliver Wendell Holmes: Law and the Inner Self, it’s not unfair to wonder what a new book might add. But Budiansky’s book proves itself to be a clearly worthy addition to long list of Holmesiana. (Here’s the subscribers-only link to my review.)

It is hard to do justice to Holmes’s amazing life and thought in a single book, and exponentially harder to do so in a book review—even a review that my editors generously allowed me to double in length. I couldn’t touch on many of his friendships, or his flirtations, or his travels abroad. Here’s an astonishing bit of trivia, courtesy of Budiansky: when the twentysomething Holmes took a post-law-school trip to England, “John Stuart Mill [invited him] to meet at the House of Commons and accompany him to a dinner and discussion at the Political Economy Club.”

But one thing I was particularly sorry to leave on the cutting-room floor was a discussion of Holmes’s writing style, a theme that Budiansky returns to a few times. For example, Budiansky quotes Holmes on the justice’s efficient opinions (pp. 265–66):

Many of the justices felt compelled to address all the points that had been raised by the attorneys in their briefs so that they would feel their arguments had been taken seriously. Holmes insisted it was necessary only to deal with the decisive crux of the case. “I don’t believe in the long opinions which have been almost the rule here,” he told Mrs. [Anna] Gray a few weeks into the job [at the U.S. Supreme Court]. “I think that to state the case shortly and the ground of decision as concisely and delicately as you can is the real way. That is the English fashion and I think it civilized.”

Later (at p. 315), Budiansky describes how Holmes would read his draft opinions aloud, writing them for the ear no less than for the eye:

He would sometimes read a finished opinion aloud to the secretary [that is, his law clerk], “not soliciting our comment,” Chauncey Belknap said, “but rather, it seemed, to let his ear test the cadence of the sentence.”

And as anyone who has ever worked on a group project can appreciate, Holmes hated when his colleagues wrecked his prose. Budiansky describes this in one of my favorite passages in the book (pp. 337–38):

Most of all he chafed at having to submit his written opinions to “the censors who prune my exuberance,” and forced him to substitute “some pap that would not hurt an infant’s stomach.” Again, Holmes would always “good naturedly agree” to the changes imposed on him, [Charles Evans] Hughes observed, but he never stopped being privately irked.

… [T]ime and again, to keep their votes in an opinion he was given to write, Holmes was forced to remove the arguments he thought most germne and the turns of phrase that most pleased him. “The boys keep a pretty sharp watch on me,” he wryly remarked. “When I get some phrase that strikes me as vivid the other lads are apt to think it had better come out. So I tell them that I prepare a plum pudding and then one pulls out one plum and another another until I have to offer the mass a sodden dough as my work.”

Of course, some of Holmes’s colleagues were less impressed than Holmes with the quality of his own writing, as Budiansky explains (at p. 341):

Some of the brethren’s “pruning” reflected prim disapproval of Holmes’s rhetorical style: his colloquial language, literary allusions, epigrams, and invocations of common knowledge that they worried sounded undignified or unjudicial — though they were the very qualities that made his opinions so memorable, readable, and to the point. And even some of his allied on the Court worried at times that Holmes’s brevity and linguistic flair had a way of shading into glibness: that he sometimes was ignoring not just irrelevant arguments but genuine difficulties in disposing of cases so handily. “The old man leaves out all the troublesome facts and ignores all the tough points that worried the lower courts,” his later colleague Justice Harlan Fiske Stone once complained to his law secretary. “I wish I could make my cases sound as easy as Holmes makes his.”

Budiansky recounts (pp. 340–41) Holmes’s experience writing the majority opinion in The Pipe Line Cases (1914), as his colleagues persist in watering down the opinion and, in Holmes’s view, turning the opinion into nothing more than an exercise in question-begging:

… Holmes was privately disgusted with the outcome, vowing never to do it again. “I put my name to something that does not satisfy or represent my views,” he later wrote his retired colleague Justice William H. Moody a few months later. “I was never so disturbed but I thought it was my duty to let it go as the majority was content and the case had hung along in other hands for months.”

When Holmes received his copy of the bound volume of opinions including that case, he annotated his copy with a handwritten note: “I regard this as inadequate reasoning, but was compelled to strike out what I thought the real argument, and assented to prevent the case going over the Term.”

Speaking of Holmes’s bookshelf: years ago, the Harvard Law School’s library published an online collection of photos from Holmes’s study, in his townhouse on I Street. I can’t find the original landing page for the photos, but Harvard’s database has a lot of the photos if you search for them.

The library in Holmes’s townhouse.
The library in Holmes’s townhouse.

The townhouse, by the way, gets extensive treatment in Budiansky’s book—an entire chapter, with photos. I won’t quote or summarize it here; you should by the book and see for yourself. It’s well worth your time and money.

For more on Harvard’s digital collection of Holmes-related documents and photographs, see this article or go straight to the library’s landing page. I also like this old blog post about Holmes’s hand-annotated copy of his own classic book, The Common Law.

http://library.law.harvard.edu/suites/owh/
“The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories …”

I’m a resident scholar at AEI, and a law professor at George Mason University, directing the law school’s Gray Center for the Study of the Administrative State.