Ralph Waldo Emerson and Oliver Wendell Holmes, Jr.: The Subtle Rapture of Postponed Power

Abstract

Ralph Waldo Emerson and Oliver Wendell Holmes, Jr.: The Subtle Rapture of Postponed Power ADAM H. HINES Scholars often equate the intellectual revolution of the late nineteenth and early twentieth centuries with a rejection of the past. As a leader of the contemporaneous legal realist movement, Oliver Wendell Holmes Jr. is remembered as an iconoclast who renounced the conventional wisdom of his era to blaze a new path for American law. Yet even this father of legal realism had tethers to an earlier time, connections to the towering writer and lecturer—Ralph Waldo Emerson. Holmes loved Emerson from his youth to his death, and his admiration for the renowned poet affected every stage of the Justice’s life. Emerson informed not only the language but also the rationale behind much of Oliver Wendell Holmes, Jr.’s thought. Emerson and Holmes alike exhibited a disdain for charity and those incapable of supporting themselves. They expressed a mutual belief in the unavoidable nature of war. Each thinker placed his faith in the posthumous power of the written word. Emerson showcased his confidence in the free trade of ideas, a principle that Holmes famously advanced from the bench. Although Emerson was not a jurist, he explained the law as a transcript of human life, an idea that commonly resurfaced in Holmes’ writings. They shared motivations, philosophy, literary devices, and even lan­ guage. Holmes used an Emersonian style of cosmic grandeur and fondness for rebuffing the past. As Emerson’s influence extended into the law via Holmes, it is an important enterprise for both intellectual history and legal history to discern Emerson’s role, however subtle. Recovering Emerson’s effect on Holmes’ judicial philosophy contributes to a broader revision of the master narrative of classical and realist legal thought. Scholars commonly construe legal realism as a rebuke of earlier ideologies, largely regarding Holmes as the father of legal realism.1 Morton Horowitz describes Holmes, his 40 JOURNAL OF SUPREME COURT HISTORY famous essay “The Path of the Law,” and legal realism at large as “a fundamental break with theological and doctrinal modes of thought.”2 By unearthing the Emersonian roots of Holmes’ thought, this study suggests that Holmes’ philosophy, and by extension legal realism itself, was not the sharp rupture with the past that scholars traditionally imagine it to be. This investigation also harmonizes with the work of legal scholars who challenge the putative originality of Holmes and legal realism. Both Brian Tamanaha and David Rabban posit a version of Holmes indebted to the past, and the stream of ideas from Emerson to Holmes contributes to this same revisionist take.3 Holmes' reluctance to acknowledge his intellectual debts supports an underlying premise of this study: Emerson’s philosophy and literary style appears throughout Holmes’ work, even though the Justice never cited Emerson in his legal articles or judicial opinions. David Rabban alleges that Holmes “obscured his relationship to the intellectual history of his age” by exaggerating “his own originality while minimizing the contribu­ tions of others to his thought.”4 Another legal scholar makes a persuasive argument for “substantial parallels, linguistic as well as thematic, between Pomeroy’s Municipal Law . . . and The Common Law."5 Still other legal academics assert a similar con­ nection between Holmes and his contem­ porary Christopher Langdell, which is sig­ nificant because Holmes positioned himself as something of a rebuttal to Langdell.6 That Holmes borrowed implicitly from Emerson as well offers further evidence of the Justice’s willingness to appropriate concepts and language from other writers without crediting them. Some scholars have examined Holmes’ literary debts and even pointed out the sizable impact of Emerson’s poetics, but this article argues that Emerson’s influence extended beyond style to a substantive, philosophical connection. Thomas Grey claims that “The Path of the Law” takes on the standard “shape of a quest narrative” with an arc like that of Dante’s trek through hell, purgatory, and paradise in The Divine Comedy. Grey’s comparison of “The Path of the Law” to the enlightenment that Dante discovers in paradise is compelling, but he missed a more apt parallel—Emerson’s “The American Scholar.”7 Holmes’ biographer G. Edward White showcases Holmes...