Liva Baker
Liva Baker
Blog
Website
The Justice from Beacon Hill
ISBN: 0060166290
The Justice from Beacon Hill
Liva Baker, author of two previous books on the Supreme Court, discussed her book, “The Justice from Beacon Hill: The Life and Times of Oliver Wendell Holmes.” At the beginning of the interview, Ms. Baker explained why she wrote the book: "He was Mount Everest for a legal historian---he was there, he had to be done." She examined not only his life as a Supreme Court Justice, but also his relationship with his father, his service in the Civil War, his Harvard days, and his private legal practice. She also examined his relationship with Theodore Roosevelt, who had appointed him to the court.
Search Audible
TRANSCRIPT
The Justice from Beacon Hill
Program Air Date: September 8, 1991

BRIAN LAMB, HOST: Liva Baker, author of the book The Justice From Beacon Hill, who was he and why did you care enough to write a book about him?
LIVA BAKER, AUTHOR, "THE JUSTICE FROM BEACON HILL": I write legal history and have been for about 20 years, and he was Mt. Everest for a legal historian. I'm not a real historian, but I do write legal history. I'm not a lawyer. He was Mt. Everest. He was there. He had to be done. When I started it, nobody else was doing it. Now everybody and his brother is doing it.
LAMB: Oliver Wendell Holmes, Jr. Who was he?
BAKER: He was the son of Dr. Oliver Wendell Holmes of Boston. He was a federal Supreme Court justice from 1902 to 1932. He was on the Massachusetts Supreme Court for 20 years before that. He wrote a book The Common Law, which was a seminal book in legal history. That's it.
LAMB: What about him did you enjoy the most?
BAKER: Well, the whole point of what I write is to make legal and constitutional obscurities accessible to the general reader. So the decoding or the interpretation of some of the legal and constitutional points, I think, is the most interesting, although Holmes is an interesting character in himself. Very different than what we've been led to believe about Holmes for so long.
LAMB: What have we been led to believe?
BAKER: Well, the Yankee from Olympus, the magnificent Yankee. He was a legend for so long. His father began it, but he made his own legend. He was the darling of the progressives. His dissents from some of the court majority opinions were very forceful, and he was very articulate. So he made his own legend, but other people helped him along. His father helped him by publishing -- I guess it was 1862 -- My Hunt After the Captain, his search for Wendell Holmes after Holmes was wounded at the Battle of Antietam, and he made a very sentimental story out of that. Then, earlier in this century, Harold Laski and Felix Frankfurter idealized them and they idolized him and they wrote about him in the popular media and in the professional journals. They started, and others took it up. Francis Biddle, who was one of his secretaries, Max Lerner, Morris Cohen, Edmund Wilson, and, of course, it all climaxed with Catherine Drinker Bowen's Yankee From Olympus, which did the whole Holmes family. It was a very romantic view of the family, and they came off very well. But she said it was semi-fictional in that she had put words in their mouths and thoughts in their heads. But her research was impeccable. I went through her papers at the Library of Congress, and her research was really very good. So if she did put words in their mouths and thoughts in their heads, she had something to base it on. She didn't just make it up out of whole cloth.
LAMB: You also did a book on Felix Frankfurter. Who was he?
BAKER: He was a Supreme Court justice from '39 to '62, I guess. He was Holmes's disciple. I wish I had known as much about Holmes when I was doing Frankfurter as I do now. The joke always was, "Why didn't Frankfurter have any children?" They always said, "Well, that was because Holmes didn't have any children." He did imitate Holmes a lot, but I didn't realize how much until I was doing the Holmes book, and I kept seeing Frankfurter so many times in Holmes.
LAMB: You know, one of the most interesting things that I found out from reading the book is I didn't realize he was so tall. Here you see him standing next to William Howard Taft -- 6'3"?
BAKER: I think so. Over six feet anyway. I guess I said 6'3". I don't remember where I got the figure, but in any case, yes, he was very tall. He was a little stooped in that picture. When he got older, he kind of stooped over a little.
LAMB: Lived to be how old?
BAKER: Ninety-four.
LAMB: And was on the Supreme Court until he was 90?
BAKER: Ninety-one, I believe.
LAMB: Anybody ever been that old other than Oliver Wendell Holmes?
BAKER: I don't recall anybody. He was on longer than anyone else up to his time. I haven't really figured since his time whether there have been people on there longer. I guess there have, haven't there?
LAMB: I don't know.
BAKER: Let's see. Brennan, how long. Fifty-six until -- no that's only . . .
LAMB: He's in his 80s.
BAKER: Yes, he's in his 80s. But I was thinking of his tenure on the court.
LAMB: I think the longest was 34 years, if I remember. That was John Marshall.
BAKER: That was John Marshall, yes.
LAMB: Let me ask you about age. In looking through Oliver Wendell Holmes, Jr.'s past for the 30 years he was on the court, did age ever factor into the way he wrote or the way he did his job?
BAKER: It was said in his later years that he became more and more dependent on Brandeis to give him a hand with some of the legal citations and perhaps some of the reasoning. He wasn't quite up to it in his last few years, but I think into his 80s he was pretty good. Then maybe after 85 or so, he began to slow down some. I think he was more dependent maybe on Brandeis. He worried about it a lot, too, whether he should keep on. His friends, of course, as friends often do, said, "Oh, yes, sure. We can't live without you. You've got to keep going." They finally did have to ask him to leave, though.
LAMB: What kind of a guy would he be if I were interviewing him? Do you have any sense of what he would be like to talk to one-on-one?
BAKER: I think you'd have to be very, very bright. I don't think he suffered fools at all. He was bright, he was witty, he was urbane, he was charming. In this kind of a situation, he could also be savage and cruel. There were a lot of contradictions in his nature which, of course, did not come across in the legend that grew about him. They drew a picture of a man who was just larger than life and left out his egotism and some of the other less endearing qualities.
LAMB: It says on the book flap that you had uncovered information that had never been uncovered before. I know you didn't write the book flap, but if you were to give us the things that you are most proud of in this book, the things that you have pulled out of history that . . .
BAKER: I did a lot of original research. I don't think I pulled out a lot of -- it's not revisionist by any means. I just was able to find a lot of details that nobody had bothered with before. I think my interpretation of him might be a little bit different than people have generally done. But it was just a lot of details that I was able to find. I went to a lot more archives. I went to the Massachusetts Archives, state archives and the Massachusetts Historical Society, which a lot of people had never touched, and there was a lot of stuff. But it was mostly filling in the blanks. It wasn't anything new and startling or dramatic or anything like that. But I think it allowed me to give a little bit different interpretation of Holmes than has usually been done.
LAMB: Politically what was he?
BAKER: A eunuch. He was not a political animal. He didn't like politics. He was talked about for running for office at one time. He wouldn't have anything to do with it. He really was not a political kind of person. He seemed to understand politics, but he just didn't want any part of it. He was a Republican as far as the party goes. I think he voted, but politics wasn't his thing at all.
LAMB: Who appointed him?
BAKER: Theodore Roosevelt.
LAMB: Were they friends?
BAKER: They were for a while and then Holmes disagreed with Roosevelt about two years after he got on the court, and they were sort of friends after that, but as Holmes said, "It was never the same again."
LAMB: What did they fall out over?
BAKER: A case called Northern Securities. Roosevelt was in his trust-busting phase, and Holmes didn't think that in this case the trust ought to be busted and he dissented. It was one of the first big decisions after he was on the court, and Roosevelt said, "Well, I'm not going to invite him to the White House again" and things like that. Of course, he did invite him to the White House again, but as Holmes said, "Things were never the same after that."
LAMB: But up until then, they were chums?
BAKER: Well, not chums. Holmes wasn't really very chummy with anybody. But, yes, they were friends. They went to the theater with the Roosevelts and the Lodges and they were invited to the White House a lot. After that, they were still invited to the White House, but it wasn't as cozy as it had been.
LAMB: How did you get into this business?
BAKER: Like everything important in your life, I stumbled in.
LAMB: Where are you from?
BAKER: I'm from Plymouth, Penn., if you can believe there is such a place. It's a little anthracite mining town in northeastern Pennsylvania. I was married to the Washington bureau correspondent for Newsday, and when he was covering the court, he occasionally took me along to hear arguments and I got interested in them. Then Felix Frankfurter's papers. When I was between jobs, projects, something, Felix Frankfurter's papers became available at the Library of Congress, and I started looking at them and turned them into a book.
LAMB: You grew up in Pennsylvania?
BAKER: Yes.
LAMB: Where did you go to college?
BAKER: Smith.
LAMB: What did you study?
BAKER: Very little. No, I was an English major. So I'm not even a history major, and my historian friends are sometimes appalled that I don't even have an advanced degree and here I am bumming around in history.
LAMB: Why are they appalled?
BAKER: Well, historians are kind of clubby and if you don't have an advanced degree and so on, you really don't amount to much in their estimation.
LAMB: What did you do after Smith?
BAKER: Let's see. I went to Toledo, Ohio, and worked writing advertising copy in a department store for about two years. Then I went to Columbia for a master's in journalism. That was really just a big employment agency. If you wanted to get into journalism, then that was one way to do it. Then I went to Newsday for three years. Then I married the Washington correspondent, and then I came down here and went to National Geographic for a couple of years.
LAMB: First book?
BAKER: World Faiths. I have to be careful how I say that because people think I'm saying fakes.
LAMB: Faiths. Religion.
BAKER: Yes. It was a children's book about the religions of the world. I had written a series for the children's magazine at the Geographic and I was home waiting for my first child to be born and nothing to do and my husband said, "Why not turn it into a book?" I said, "Well, why not?"
LAMB: Second book?
BAKER: Felix Frankfurter.
LAMB: Third book?
BAKER: It was called I'm Radcliffe! Fly Me! The Seven Sisters and the Failure of Women's Education.
LAMB: Is this the fourth?
BAKER: No. Miranda: Crime, Law and Politics was the fourth. This is the fifth, and I'm working on my sixth.
LAMB: Which is?
BAKER: I think the tentative title is Conscious and Courage: The Desegregation of the New Orleans Public Schools.
LAMB: But your first interest in the court thing was literally going to the Supreme Court and sitting there watching oral arguments?
BAKER: Yes. It's an odd way to start. I just sort of stumbled in.
LAMB: What year?
BAKER: 1962, because I think I heard the school prayer decision argued. It was the last one that Frankfurter heard, I believe. He then had a stroke and never came back to the court.
LAMB: Here's a picture of him. Do you know what year this was?
BAKER: I would guess it was about 1916, '17. Something like that. It was when he was a very young man teaching at Harvard Law School.
LAMB: As we talk about this, at least the first run of this program, it's right in the middle of the confirmation hearings to be of Clarence Thomas. The question that I wanted to ask you is that you've studied Felix Frankfurter closely, you've studied Justice Oliver Wendell Holmes. Can one person make a difference on this court? A big difference?
BAKER: That's a very hard question. I think Chief Justice Warren certainly made it. That's a very hard question. Certainly Hugo Black made a difference, Felix Frankfurter made a difference, Chief Justice Warren made a difference, Justice Brennan made a big difference.
LAMB: Did Oliver Wendell Holmes make a difference?
BAKER: I think so, yes. I think he, along with Brandeis, again, sort of helped bring the court into the 20th century.
LAMB: We've got a picture here that we can show of Louis Brandeis.
BAKER: It's not a very good one, is it? See how stooped Holmes is there.
LAMB: I must say I was surprised to see that Louis Brandeis was that tall. Or is he that tall? We can't tell from the angle of the picture.
BAKER: You can't tell, and Holmes is stooped over a little there.
LAMB: What was Louis Brandeis all about?
BAKER: Both Holmes and Brandeis, although they came at it from very different places, were believers in the Constitution as a living document responsive to the needs of the society that had made it. I think that's what brought the court into the 20th century. Before that the court was so static, and the Constitution was treated as a static document. You know, it was natural law. It was law and nature transmitted by divine will and immutable, eternal and there was no changing it. The justices would go in and look at it and they'd say, "Well, that's not constitutional because the Constitution doesn't allow that specifically." Holmes would say, "It doesn't say it's not unconstitutional, then it's all right." So they looked at it from different ways. Brandeis and Holmes looked at it the same way -- that all of this government regulation that was coming along in the late 19th and early 2th century, the Constitution didn't say it was unconstitutional, so why not? I think that's the thing that kept them together.
LAMB: Do you still go back to the court and watch the oral arguments?
BAKER: I haven't been for a long time. I haven't had the time. I used to go. With the Miranda book, I went quite often. They were still doing Miranda cases then. They don't do so many now.
LAMB: Of the eight people that are currently on the court, do you think anybody has the stature of a Holmes, a Brandeis or a Frankfurter?
BAKER: No.
LAMB: You say that so definitively.
BAKER: I just can't think of anybody who did, who does. I think Brennan may have come close.
LAMB: Are you saying this because of their views?
BAKER: Possibly. I'd like to think I'm not, but I may be. I don't agree with any of them.
LAMB: Did you find yourself agreeing with Oliver Wendell Holmes?
BAKER: Not always. As a matter of fact, I often agree with Justice Stevens, sometimes Justice Blackmun, but I don't think they have a great deal of stature.
LAMB: What creates stature?
BAKER: Boy, if I knew the answer to that! What creates stature?
LAMB: Take Justice Holmes. What was it that created stature for you for him?
BAKER: I think he had a lot of courage. He was willing to go on his own, and I think that's sadly lacking in all of our society today. I don't know about the people in the court. I don't know whether they have any courage or not. I think it's certainly lacking in our society. People are not loners; they're lemmings now. Holmes had a lot of courage, and he spent all those nights reading all by himself in a city that really didn't appreciate his work, his scholarship, and he was willing to go it alone. Of course, he had a lot of courage in the Civil War, too, so that it was something. He had the courage to buck Theodore Roosevelt, who had appointed him.
LAMB: Why would that be courage if once you got on the court it's a job for life?
BAKER: Yes, but there are other pressures and other influences and things, I think. Yes, we can sit here and say, "Yes, they can do whatever they want to now," but it's not all that easy I don't think.
LAMB: What was his relationship with his father? Who was his father?
BAKER: His father was Dr. Oliver Wendell Holmes, who was a physician, an essayist, a biographer and a poet of sorts. It wasn't great poetry, but it's certainly well-known. His father, I think, also had a great deal of courage. He wrote, when it was certainly not popular to write, a paper on childbed fever and how it was transmitted from bed to bed by the doctors and nurses and the midwives. Boy, that sure set the medical establishment on its ear, but he had the courage to stick by his guns and rewrote it again a few years later. Eventually, of course, as soon as we began to know about germs and things, it was obvious that's what happened. But Dr. Holmes had the courage to do it early on. I think courage, intellectual adventuresomeness . . .
LAMB: You called the book The Justice From Beacon Hill. What's Beacon Hill?
BAKER: That's a part of Boston where the Boston elite have always lived. His father had a house right on Beacon Street. After his father died, the younger Holmes and his wife lived in it for some time. Was he born there? I believe he -- no, he wasn't born there, but he was born nearby.
LAMB: What's a Boston Brahmin?
BAKER: Of course, it's taken from the Hindu, the highest caste. And Bostonians seem to -- well, I guess his father, didn't he -- yes, it was his father who coined the word as applying to the Boston elite.
LAMB: It doesn't apply to the Chicago elite or the Los Angeles elite?
BAKER: No, somehow. It's an odd thing; the Boston elite seems to be something all by itself. I think I said somewhere in the book something about, "People came from all over to go to Harvard, but Bostonians didn't go all over to go to school." They went to Harvard. Harvard drew everybody from everywhere.
LAMB: Where did Justice Holmes go to school?
BAKER: Harvard, undergraduate and law school.
LAMB: Did the school have an impact on him or did he have an impact on the school? Or was there any history on it?
BAKER: I think his impact was kind of negative. As an undergraduate, he was certainly a rebel. Emerson was his idol.
LAMB: Ralph Waldo Emerson?
BAKER: Yes, who was a rebel. Holmes was writing in the Harvard magazine very rebellious things. What was the one? Something about, "We used to burn people and we still do for their ideas." Something like that. That's not a very good quote. The point of it is that we're still burning people for their ideas.
LAMB: Born and raised in Boston and you say a part of the elite. What makes you an elite? Is that intellectual or financial?
BAKER: It's sort of social, I think. Well, in that case, it was probably somewhat intellectual because this coterie that Dr. Holmes had of Longfellow, James Russell Lowell and some others, Ralph Waldo Emerson.
LAMB: William James.
BAKER: Well, no, he was younger. Hawthorne, Melville. They vacationed in western Massachusetts together and they had dinner at each other's homes and they went to the same schools, and, well, you know.
LAMB: Well, you know. I'm not sure I do know. What's the difference between a Boston Brahmin and a Boston Yankee?
BAKER: Wasn't "Yankee" usually applied to the artisans of the northeastern United States?
LAMB: We still hear people that come to Washington today referred to as a Boston Brahmin. That's why I wanted to know if they still have them.
BAKER: Oh, I think so. Yes, sure. It's an intellectual elite, it's a social elite, it's an economic elite. It's all of them. You could probably be one of them and get away with it.
LAMB: Was he religious?
BAKER: No. He was an agnostic.
LAMB: How did you find that?
BAKER: Oh, he said it constantly.
LAMB: Did he have trouble about that during the Civil War battles that he was involved in?
BAKER: He discussed that with his father before he left for the Civil War. What should he do if he got hit? Should he do a deathbed confession or something like that? His father said, "You'll never get away with it. Don't bother."
LAMB: Was his father religious?
BAKER: His father skeptical and questioning, but in the end believed in a God of some sort. I think he was a lot of times asking questions and looking for answers to kind of metaphysical questions. In the end, I think he really did believe in a God. I don't think the son did. He occasionally would refer to God in a kind of a joking way. He was always kind of doing his homework just in case.
LAMB: In Civil War battles, he was wounded three times?
BAKER: Right.
LAMB: What impact did that have on his life?
BAKER: Oh, the Civil War, I think, was the single most important thing in his life. He was never really mustered out psychologically. He fought that war for the rest of his life. It was in his writing -- the metaphor of the military was in his writings. It gave him a certain detachment. If you see your friends being killed, I guess, all the time and you don't have time to stop and do anything about it, I think you can become somewhat detached, which he did. I think it also distanced him from other human beings somewhat -- the thought that perhaps they would go away. He would lose them in some way, so he didn't ever want to get too close to people and really be dependent on them or anything.
LAMB: Was he a good soldier?
BAKER: He was average. I don't think he was heroic by any means.
LAMB: Where did he serve?
BAKER: In the eastern peninsula. He was in the peninsular campaign. He was in a place called Ball's Bluff, which was probably the biggest mismanagement of that part of the war where they sent the Union soldiers up a 150-foot-high bluff as the Confederates just sat there and peppered them. He was in that. That was where he was wounded the first time. He was at Antietam, and then he was on the road to Chancellorsville -- he was between Fredericksburg and Chancellorsville -- and he got hit again. I think he thought of himself as an accidental survivor sometimes. I think sometimes he felt that he had to atone for that in some way and make it worthwhile that he survived and he ought to contribute something since he was allowed to survive. Several times during that war, other people were in places where he might have been, and he wasn't there and so he survived. One of his favorite books was Melville's Moby Dick. On the last page of that, of course, the hero is floating in a sea supported by a coffin. I have a feeling that went right to Holmes's heart there. He thought of himself as a kind of accidental survivor. Of course, if he moved two inches two of the times he was hit, he would have been dead, too.
LAMB: Did he spend much time in a hospital?
BAKER: No, he didn't spend much time in a hospital. He recuperated at a friend's house in Philadelphia for a while and then he would go back to Boston for some time. The time he was wounded in his heel, which was not much of a wound, he was home for six or eight months or something like that. Well, he couldn't walk. The other wounds healed very quickly.
LAMB: At what time in his life was he in the Civil War?
BAKER: He left his senior year at Harvard as an undergraduate and enlisted. So he was in until, I guess, the summer of '64 -- '61 to '64.
LAMB: He came back?
BAKER: Yes, he came back and went right into Harvard Law School.
LAMB: And then after Harvard Law School?
BAKER: Then he went into private practice for a while. For the next decade and a half, I guess, he went in and out of private practice. He did a lot of scholarly things. Then at the end, he wrote his book The Common Law.
LAMB: That had an impact? It still does today? It's still read today?
BAKER: I don't know how much it's read today. Hard to tell. It was fairly widely circulated at the time. It had a pretty good circulation. It's turgid, it's dry, it's impossible to read.
LAMB: What's its point?
BAKER: The point is that law is not static. It's evolutionary, Darwinian. Natural selection plays a part in the law as well as in the structure of the horse or the elephant or something. It's the same thing that law responds to the needs of society and is constantly developing. It was a seminal work at the time.
LAMB: Was he marked at any point in his early career for the judgeship? If he got off the court in '91, and he was almost 60 when he was appointed to the court in the first place. Could you tell from your research that this was a marked man, that they said, "This is a Supreme Court justice" early in his career?
BAKER: He thought so. I don't know whether anybody else did.
LAMB: He did?
BAKER: Yes. I think he was in his early 40s when he told a friend that he wanted to be chief justice of Massachusetts and then he wanted to go onto the United States Supreme Court. Whether he thought he'd actually make it, I have no idea, but he told somebody that that was his ambition.
LAMB: Was he chief justice?
BAKER: No, he wasn't. He was chief justice of Massachusetts, yes.
LAMB: That's what I mean.
BAKER: But not of the U.S.
LAMB: And for how long?
BAKER: Only a few years. I think only about three years. In Massachusetts you went up in seniority. It was an escalator. By the time he'd been on there for 19 years or something like that, he was the last living or the last person on the Massachusetts Supreme Judicial Court, and so it was pro forma thing. He was made chief justice.
LAMB: At what point did you discover that somebody politically was interested in him? You tell the story in here about how he was selected and it was a close call. I mean, there were other people.
BAKER: Oh, yes. That's another accident. I often thought I should have written a little something about the role of accident in his life. That was an accident, too. McKinley was assassinated and Theodore Roosevelt was then president. Theodore Roosevelt and Henry Cabot Lodge were close friends. There was a point in Lodge's life where he was an outcast in Boston, and Holmes, who had been his friend, walked across the street and stuck out his hand and shook hands with him publicly on the street so that everybody could see it. That was courageous for Holmes, too. That's another example of a little bit of courage. That wasn't a great deal, but Lodge never forgot that Holmes was kind to him when he, himself, was an outcast. And so he went to his friend Theodore as soon as there was a vacancy on the Supreme Court and pushed his friend Wendell Holmes. They always called him Wendell.
LAMB: We knew a Henry Cabot Lodge at least in my lifetime. There was a Henry Cabot Lodge, Jr, I believe. Was there a junior?
BAKER: Yes. I think he was the grandson, though, wasn't he? I don't know if there was a junior on that or not. I think he was the grandson of the original. Wasn't he? I'm not sure.
LAMB: He was vice-presidential candidate at one time and senator at one point and ambassador at one point to Vietnam. Who was the original Cabot Lodge?
BAKER: At the point where I came across him, he was the junior senator from Massachusetts. He had been a history instructor at Harvard whose courses Theodore Roosevelt avoided because he was too hard a taskmaster, but they became great friends. Lodge kind of moonlighted in the Massachusetts Republicans and sort of worked his way up and left Harvard then and went into politics full-time and was eventually elected representative, I think, and then senator.
LAMB: And was close to Theodore Roosevelt?
BAKER: Very. They were very close friends. They had a close political and I think it became a personal friendship.
LAMB: Again going back to the selection process, was Theodore Roosevelt enthusiastic about him?
BAKER: He asked a lot of questions of Lodge. He wanted to make sure that they got somebody who was politically with them. They didn't want any mavericks on that court. Roosevelt was in his trust-busting phase, as I said before, and they wanted to be sure they were going to get somebody who would go along with him.
LAMB: Did he show any evidence that Theodore Roosevelt called him in to talk to him before he put him on the court?
BAKER: Yes, yes he did. Holmes went down to Oyster Bay one summer afternoon and talked to Roosevelt and Roosevelt then said to him, "The appointment's yours, but don't announce it for a few days. Let me talk to Cabot Lodge and the other senator from Massachusetts and so forth and get things straightened out before I announce it." So it was a week or two before it was actually announced after Holmes had gone to Oyster Bay to visit Roosevelt.
LAMB: I want to ask the same question that we always bring up today, the litmus test question. Was there a litmus test then and was it the trust-busting question?
BAKER: It was related to the trust-busting question. Holmes had written some opinions in Massachusetts which were widely interpreted as being pro-labor. They happened to be pro-labor, but they were decided on strictly legal grounds. But Roosevelt was not a lawyer, didn't know too much about it, so he assumed that Holmes was pro-labor and that went along with his Square Deal. Yes, he asked Cabot Lodge a lot of things about Holmes before he put him on the court.
LAMB: Was the court as visible and as important in the society then as it is today? At least we spent a lot of time talking about it.
BAKER: It certainly was important. Now, how visible it was, I don't know. I did a lot of research in newspapers and a lot of local newspapers because arguments and things were not always in the New York Times and they're certainly not in the U.S. Reports at that stage. So, I did a lot of research in local papers, and they certainly played the court very big. I'm trying to think, did my parents ever say anything about the court in those days? I can't remember them ever knowing about the court at that time.
LAMB: When you came in today, you said you haven't done much of this interviewing. A lot of people when they put a book out make a four-, five-week trip around the United States.
BAKER: One of the things that's happened with this is somebody got the publication date mixed up. It was originally supposed to be July 3rd and somebody on the publicity thing that they sent around put July 31st. So nobody knows really when it was published and it's been the book stores, but the reviews have been a little slow. I haven't done this, I don't think, since the Frankfurter book. I did it a couple of times for the Frankfurter book.
LAMB: Is this how you make a living, writing books?
BAKER: It's not much of a living sometimes. It's all right. I survive.
LAMB: But is this is? I mean, this is what you do?
BAKER: That's it. I have a little -- I call it a cell -- at the Library of Congress. You can think of it as monastic or prison, whichever you like.
LAMB: I've seen a lot of that lately. Are a lot of people doing that? Are there slots for people? Do you have to rent them?
BAKER: No, you don't rent them. They give them to you. You have to have a book contract or you can be writing, I guess, a dissertation. As long as you have a sponsored project, and you're not just coming in out of the cold.
LAMB: Do you go there every day?
BAKER: Every day. Just like a regular job.
LAMB: How long have you had a book contract continuously since you started writing books?
BAKER: I guess almost since the Frankfurter book. I get between books every once in a while.
LAMB: What year did you put the Frankfurter book out?
BAKER: 1969. I was between books, I think, then for a while. But then I got interested in the Seven Sisters and did that. I was between books, I think, for a while. I've done some articles for American Heritage and things like that, historical kinds of things. I sometimes am between books. I didn't happen to be between Miranda and Holmes. That came off right away.
LAMB: How did the Felix Frankfurter book do?
BAKER: Not spectacularly, but okay.
LAMB: What sells a book?
BAKER: If I knew that, I'd be a publisher!
LAMB: In your experience of the books, which book has done the best?
BAKER: This one.
LAMB: Really? Already?
BAKER: Already. Yes.
LAMB: What is it about this book?
BAKER: I think it's the name recognition of Holmes.
LAMB: Did you find as you go about doing this and talking to friends that they knew who Oliver Wendell Holmes, Jr. was?
BAKER: A lot of people had it mixed up with the father. They'd say, "Oh, he wrote poetry, too." Of course, he didn't.
LAMB: Did you find that people knew anything about him?
BAKER: No, not very much. Not in this generation.
LAMB: Did you know much about him before you started?
BAKER: No. I thought he was a great Civil libertarian when I began.
LAMB: And he's not?
BAKER: He's done some very nice libertarian things, but not for the reasons I thought of them. He was very different. I thought he was shouting all the time civil liberties, but he wasn't. There were only a few -- the famous one that the Constitution allows freedom of thought, not only for the thought that we agree with, but for the thought that we hate. For me, that's a rallying cry. I think that's wonderful. But he didn't say many things like that -- not as many as he was thought to have.
LAMB: Was that a majority opinion that he wrote?
BAKER: No, it was a dissent.
LAMB: So what good was it?
BAKER: I like to think of it as part of our heritage.
LAMB: The reason I ask that is you say you kind of debunked the theory that he was a great dissenter.
BAKER: Yes. He was not a great dissenter. I don't remember how many times it was, but he didn't dissent nearly as many times. It was the quality of it.
LAMB: I think it was 172, if I remember your number right.
BAKER: Is that what it was?
LAMB: Of 2,000-and-some opinions that he wrote.
BAKER: Yes, it wasn't all that many. But I think it was the quality of the dissent, the pungency of his writing. Also, he was known. I mean, there was even an Oliver Wendell Holmes PTA, I think, in Cleveland or something like that, so I guess people did know about him. Now how much they knew, I don't know. As I say, this legend had been built up.
LAMB: This is not very substantive, but during the time that he was justice they met in the Capitol Building?
BAKER: Yes.
LAMB: But he left in 1932 right about the time of the new building.
BAKER: Right when they began to build the new building. I think the new building was finished in '35.
LAMB: A project of William Howard Taft.
BAKER: Yes.
LAMB: But Felix Frankfurter came in '32?
BAKER: 1939.
LAMB: 1939. So there was a gap there.
BAKER: Yes. There was quite a gap.
LAMB: Were there others that Oliver Wendell Holmes, Jr. served on the court with that got your attention? You mentioned a bunch.
BAKER: Brandeis, of course. John Marshall Harlan, I think, is an interesting character. He was sort of the liberal of the late 19th century. I thought he was interesting. Well, they were all kind of interesting, but none with the stature of Holmes or Brandeis.
LAMB: What about James McReynolds? Do you remember writing about him?
BAKER: Yes, I do.
LAMB: Who's that?
BAKER: He had biases against Jews and women. Women lawyers he couldn't stand. I think he would leave the bench when a woman lawyer came to argue. He would leave the conference when Brandeis spoke. He didn't like painted fingernails and, oh, there was a whole lot. He was crabby and irascible. But then I read some of his letters down at the University of Virginia library, and he was a very soft-hearted, generous person. I think he adopted a lot of refugee children from World War I. But he was really a much nicer person than he's been made out to be. Everybody who writes about the Supreme Court in that period paints him as just a terrible character. I don't think he was that bad. He was a little inconsistent, but a lot of them are. That's no great sin.
LAMB: Did Justice Holmes live near the court?
BAKER: He lived at 1720 I Street, N.W. There's a big office building there now. As a matter of fact, my podiatrist is in it. It gives me a funny feeling going there. There's Holmes's house.
LAMB: Down by the White House, 17th and I.
BAKER: Yes. It's not too far. Walking distance.
LAMB: Did he walk to the Capitol 17 blocks away?
BAKER: Yes, he did. Sometimes Taft walked with him. Sometimes Brandeis walked with him. They walked a lot until he got in the upper years.
LAMB: What was the relationship? Did he have a close personal relationship, you know, like come to each other's homes and all that stuff?
BAKER: I don't think so, no. Not with Brandeis. Of course, Brandeis was such an ascetic. You know, he slept on a wooden cot in some little room. He didn't go to the theater or anything. Holmes liked the theater. He even liked the burlesque houses in Washington. I can't imagine what they were in those days. But in any case, he had a reputation for going to the burlesque houses. I don't think that the justices socialized much among themselves. I think his social life was more among diplomats maybe. Some of the politicians. I don't know, but I don't think that they socialized so much among themselves.
LAMB: Who's this lady?
BAKER: That's Fanny Holmes. That's his wife.
LAMB: What was she like?
BAKER: She was very reclusive. She covered her tracks. She remains to me somewhat of an enigma. I think she did it deliberately. Somebody once pestered her about giving them a picture and she finally gave in and said, "All right. I'll get you one." She gave them a picture of a Buddha. She kept the shades drawn in her house. Literally and figuratively, the shades were always drawn with Fanny Holmes.
LAMB: She lived in this house right here at 17th and I? It's no longer there.
BAKER: It's no longer there, I'm sorry to say. I wish it were.
LAMB: How long did she live?
BAKER: She died, I think, in 1929 and she was just a year older than he was. So, 80 . . .
LAMB: But she died before he did?
BAKER: Yes. She died before he did.
LAMB: What impact did that have on him in those late years?
BAKER: I think for a long time he had a terrible time, but he'd lived through the Civil War and seen a lot of his friends killed. Grief distracts from the business at hand. On the other hand, the business at hand distracts from grief, and I think that was pretty much the way he operated. He was back on the court within a couple of weeks, and I think the details of getting her affairs cleaned up helped him a lot. She died in May, I believe, or the end of April and when he went to Massachusetts for the summer to their summer home where they had gone for a lot of years, I think he was very, very lonely, but people up there tried to take up the slack and kept him very busy to the point where, I think, he got tired of being kept busy. But I think it left a great hole in his life.
LAMB: He went to Great Britain a lot.
BAKER: Yes, well, Bostonians are Anglophiles. He was one of the great Anglophiles. He went almost every other year for a long time. I think 1913 was about his last trip.
LAMB: How would he go?
BAKER: On the boat.
LAMB: Why would he go?
BAKER: He had a lot of friends there. He liked England. He liked English customs, so he would go for a vacation in the summer.
LAMB: I've got two cases I want to ask you about that you write. You have a whole chapter on Sacco and Venzetti, and that kind of combined your Frankfurter book and the Holmes book. What's the story?
BAKER: Sacco and Venzetti, of course, were prosecuted and put on trial for robbing and killing a paymaster in Braintree, Mass. I don't think anybody ever knew whether they did it or not, but they were tried really on their politics. Felix Frankfurter never said -- at least publicly -- whether he thought that they were guilty or innocent, but he didn't think they'd had a fair trial. They tried to get their case before the U.S. Supreme Court but were unable to do it. Holmes was one of the ones who turned them down. He didn't feel that he and his court could interfere in state affairs.
LAMB: What did that do to the relationship between Holmes and Frankfurter?
BAKER: I think Frankfurter was probably disappointed. He tried to say, "Well, this is Holmes's job. He can't do what the Constitution forbids him to do." I think privately he probably was quite disappointed. Holmes was his idol, and Frankfurter really didn't think that Sacco and Venzetti had a fair trial. Interestingly enough, my husband used to say that perhaps if the Sacco and Venzetti case and others like that had gotten to the Supreme Court, they might have gotten settled. I think people still have doubts and questions about both of those and other cases.
LAMB: Who was Rosika Schwimmer?
BAKER: She was a pacifist in the late '20s. She was a Hungarian, I believe, and she wanted to come into the United States. She wouldn't swear to bear arms. She was in her 50s and she wouldn't swear to bear arms on the immigration form. That was one of the requirements at the time. Her case got to the Supreme Court, and that was where Holmes wrote in dissent that the Constitution gives us the freedom of thought -- not only for the thought that we approve of and agree with, but for the thought that we hate. She kept up a kind of running friendship with him. It wasn't very deep. She wrote him a few letters. He wrote her a few back, and that was about all.
LAMB: But you did point out that she tried to write and thank him.
BAKER: He said, "You don't thank a judge. A judge is just doing his duty."
LAMB: Is that part of the folklore we have today in the relationship between a Supreme Court justice and the outside world?
BAKER: I think it is. I think the court is deliberately isolated. Otherwise, it's so hard to decide these cases. It's hard enough anyway, and I think that's part of the mystique of the court is the isolation and the heavy curtains. I think that's important so they can decide on a legal basis.
LAMB: Go back to that first time you visited the Supreme Court. Do you remember what got your attention?
BAKER: I don't. I was just interested. I was interested in finding out more about the court and more about the justices on it and Frankfurter turned out to be the convenient one.
LAMB: Do you find that people that you're out there in the world talking to care about the court and all the stuff that you do?
BAKER: The people I talk to do, yes. But I don't know. Well, not all of them; a lot of them do.
LAMB: I don't even know that you know this. What kind of people buy a book like this one? You say it's doing the best.
BAKER: If I knew that, I'd be a publisher.
LAMB: Is it schools that use a book like this? Do you get any sense from your publisher?
BAKER: I don't know. I've been meaning to ask them, and I just keep forgetting every time I talk to them about who's buying or even how many. I can tell by the number in the bookstores that it's doing better. I would have thought Miranda would have done really well because everybody I talked to, whether I knew them or not, whatever they did, they would say, "Oh, Miranda!" But it didn't do particularly well.
LAMB: Your publisher is HarperCollins. Is that a big publisher?
BAKER: Yes. Very big.
LAMB: What gets them interested in something like this?
BAKER: Well, that's a funny question. The first time I went up to talk to them about it, one of the editors said when he was talking to one of his supervisors -- actually at the time it was Harper & Row and it was the president of Harper & Row and they were driving up to Connecticut together. The editor said that he had somebody who was interested in doing Holmes. He said the publisher nearly turned the car over, he was so excited. Now, I don't know why. I mean, I thought it was exciting, but not all that exciting.
LAMB: You have in the acknowledgments something I wanted to ask you about: "Jane Anne Spellman who introduced me to Wendell Holmes."
BAKER: She's a close friend of mine from Smith. She came to visit us one time in Washington and she gave us as a hostess present Yankee from Olympus and I read it and I loved it.
LAMB: All right. Here's a good one: your "caring" editors, "my son David Baker, also a four-star editor and my daughter, Sara Baker, friend and helpmate; they have a unique understanding of the Fourth Commandment.
BAKER: There's some argument whether it's the fourth or the fifth.
LAMB: You dedicate this book to a whole bunch of people: Judy and Sid Baker.
BAKER: Right. My brother-in-law and sister-in-law.
LAMB: Sheila Gellman.
BAKER: Friend.
LAMB: Barbara Germond.
BAKER: Friend.
LAMB: Marilee and Jack Reiner.
BAKER: Right. Friends.
LAMB: Pat and Phil Robbins.
BAKER: Right. Friends.
LAMB: And Jane Anne and Jim Spellman.
BAKER: They were all people who, when my husband was sick and after he died, the things they did were way above beyond the call of duty. They were just wonderful, all of them.
LAMB: Is it tough to decide on who you're going to dedicate a book to?
BAKER: Yes. The list could have gotten longer, but these were people who really put themselves out. It was unbelievable. I didn't know what friends were like until then. They were just terrific.
LAMB: If it does you any solace, this is the longest list of dedications I've ever seen in all the "Booknotes" I've ever done.
BAKER: Really?
LAMB: Where does the name Liva come from?
BAKER: It's a family name that got handed down, and I got stuck with it in this generation. It's very hard to reverse the charges with a name like Liva.
LAMB: Do people mispronounce it a lot?
BAKER: Oh, all the time. Mostly.
LAMB: Have you learned how to deal with that?
BAKER: No.
LAMB: How do you tell somebody what your name is then, so they won't forget it?
BAKER: Well, I just say, "If it's all the same to you, I'd just as soon be Liva rather than Leeva or Livva" or whatever they come up with.
LAMB: What about book writing? What's the toughest part of it?
BAKER: The writing. It beats scrubbing the kitchen floor, but not by much.
LAMB: Why?
BAKER: It's just very hard to sit there and put one word in front of another until you get 250,000. I think the analysis is the part that gets me most. That's really hard work. The research is great fun because you're always finding out things you didn't know and talking to people who are generally interesting and really add to your subject. But you're sitting there and it's very isolating just sitting there day after day after day trying to put one word in front of another.
LAMB: Are there any living relatives of Oliver Wendell Holmes, Jr. and did you try to find them?
BAKER: I tried to find them. I don't believe there are. He had no children. His brother had a child, but the brother's child also died childless. His sister didn't have any. There may be relatives of Fanny's, but I really didn't get into that.
LAMB: Is anybody alive today that knew him that you talked to?
BAKER: Oh, sure. Alger Hiss was one of his secretaries. I talked to him. There was another former secretary out in northwest Washington, whom I actually haven't heard from so I don't know. Chapman Rose, who was very kind and loaned me stuff in his possession.
LAMB: The secretaries in those days were males.
BAKER: Oh, of course!
LAMB: Why?
BAKER: I don't think there were very many women lawyers. I don't know whether women were allowed at Harvard Law School at that point or not.
LAMB: What was a secretary in those days?
BAKER: It's what today's law clerk is. He got young men after their last year at Harvard Law School. Felix Frankfurter chose them for a while and another friend chose them before Felix Frankfurter.
LAMB: Here he is, by the way, when he was 42 years old.
BAKER: Secretaries, as they called them then, did things like balance his check-book and run errands for him. The most important thing they did was be available for what he called a "good jaw." He liked to talk to them. He liked their bright, young, inquisitive, adventuresome minds. He loved to talk to them about what was going on at Harvard Law School and what was going on in the law at that time. He found that very stimulating. That was their main purpose. They didn't write the opinions. They looked up some legal citations, but nothing . . .
LAMB: Did he write his own opinions?
BAKER: I think so, yes. Oh, yes. They had to be his. Nobody else could write like that. I mean a young law student could never write like that.
LAMB: Do you think that's different today?
BAKER: I have no idea. I've heard that the law clerks do a lot of the writing, but I have no evidence either way.
LAMB: Is there any justice today -- this is a little different question than I asked you earlier -- that you think is intriguing enough that you might end up doing a book on him or her?
BAKER: The two most interesting ones are being done, and that's Justice Brennan and Justice Marshall. So, I wouldn't venture to do them. I have no idea what my next book will be. I've been thinking about it, but I haven't come up with anything.
LAMB: In general, do you like writing about the legal system even though you're not a scholar, you say, and not a legal specialist?
BAKER: Yes. I thought of going to law school at one point. I decided I was better off not going to law school and not knowing anything about it. I have to write so that I understand it. If I understand it, anybody can understand it.
LAMB: This is what the book looks like and our guest has been Liva Baker, The Justice From Beacon Hill: Oliver Wendell Holmes, Jr. Thank you for spending time with us.
BAKER: Thank you.


Copyright National Cable Satellite Corporation 1991. Personal, noncommercial use of this transcript is permitted. No commercial, political or other use may be made of this transcript without the express permission of National Cable Satellite Corporation.