“Beware of glittering generalities,” Nathaniel Nathanson used to warn his Northwestern University law students 70 years ago, stressing the importance of U.S. courts deciding cases on their specific merits, without unnecessary overreaching. One of those students was a young John Paul Stevens, who would later ascend to the Supreme Court in 1975, nominated by President Gerald Ford.
Justice Stevens, who died on July 16, retired from the court in 2010. His remarkably candid and heartening memoir “The Making of a Justice: Reflections on My First 94 Years” was published in May. In it, he recounts his time at Northwestern and wonders if perhaps Nathanson learned his maxim while clerking for Justice Louis Brandeis. “The Court,” he writes, sounding paradoxical, “should avoid deciding cases on constitutional grounds whenever possible.”
That kind of puckish, mildly subversive humor runs throughout the book, which is a calm and sagacious volume rendered somewhat somber by the news of his passing. It’s often melancholy to read an author’s latest work alongside his obituaries.
“The Making of a Justice” is, predictably, full of life. Justice Stevens recounts the major cases of his long career with an even-handed clarity. Readers learn the intimate details of such landmark decisions as Apprendi v. New Jersey, Bush v. Gore, and Citizens United v. FEC, and they get an immediate sense of the personalities involved, all of it presented with warmth and discretion.
Alongside his legal life, the author also writes of his personal pleasures and tragedies, likewise described with an understated eloquence that makes for an arresting counterpoint to “Scalia Speaks,” a similar book written by Stevens’ longtime Supreme Court sparring partner, the late Justice Antonin Scalia.
Justice Stevens was widely known for a rare combination of shrewdness and genuine kindness, and that same combination fills his book. As the narrative progresses, readers see a deep thinker who was steadily reexamining his own beliefs; Justice Stevens clearly saw the “making” in his book’s title as a lifelong process.
It’s a sentiment that would have been heartily echoed by one of Justice Stevens’ greatest forebears on the court, Oliver Wendell Holmes, Jr., the subject of a lively new biography by Stephen Budiansky, “Oliver Wendell Holmes: A Life in War, Law, and Ideas.” Budiansky moves his narrative briskly through all the arresting highlights of Holmes’ life: his youthful service – and near death – in the Union Army ranks at the Battle of Ball’s Bluff and Antietam, nearly 20 years on the Massachusetts high court, and his 29 years on the Supreme Court, where he wrote 873 signed opinions (still a record) and kept up a correspondence that would have exhausted many people one-third his age.
Holmes joined the Supreme Court in 1902 and served until his retirement in 1932, and Budiansky devotes half his book to this long stretch and its landmark cases like Schenck v. United States (the iconic “falsely shouting fire in a theater and causing a panic” case) and Abrams v. United States, another pivotal dissent on Holmes’ part, or Buck v. Bell, the forced sterilization case on which Holmes infamously wrote for the majority, “Three generations of imbeciles are enough.”
Budiansky writes about the legal intricacies of these and other Supreme Court cases with a clarity and energy that makes for consistently gripping reading. In 1909, former President William Howard Taft complained to a friend: “The condition of the Supreme Court is pitiable, and yet those old fools hold with a tenacity that is most discouraging,” but in 1921 Taft himself joined that collection of old fools, becoming chief justice and beginning a nine-year period alternately sparring with Holmes, whom he called “a noisy dissenter,” and quietly learning from him. It’s a thread running throughout the book: Holmes’ odd, aristocratic charm worked on a variety of people, from stolid, conservative Taft to the James brothers, William and Henry, to the ever-changing crowd of young people that always seemed to surround him.
“Oliver Wendell Holmes: A Life in War, Law, and Ideas” has more gravitas than Liva Baker’s “The Justice from Beacon Hill” and more playfulness than Sheldon Novick’s “Honorable Justice,” both from 30 years ago; it’s possessed of a zest and omnivorous curiosity that reflects the boundless energy of its subject.
Like Justice Stevens, Holmes lived a long life on the public stage (Budiansky reminds his readers that Holmes met both John Quincy Adams and Alger Hiss), and it’s impressive how much of the complexity and flavor of that life is captured here in fewer than 500 pages. Holmes’ ideological devotion to “unwavering fight for the principles of respect for the rule of law, judicial restraint, and the interests of the community” fits comfortably with Budiansky’s engaging portrait of the antic, unpredictable, and effervescent Holmes.