Evening star., 1932-02-07

stories about him. One OF them
reading "TriStram Shandy" when he
summoned to discuss a point, and s.
gested case which he recalled from
Harvard training. That, he SupposI
was all, and he returned to his boI
After five minutes he heard from 4
adjoining room: DO you think II
might spare me a moment from yd
cultivated leisure to look up that cit
tion?"
In an obscure prohibition case I'll
hap ened in washington, not at BeveI
Faln4s) Mr.. Justice Holmes wrote: II
de isionS under the revenue acts nd
little weight as against legislation und
the afiatus of the eighteenth amen
ment." The secretary thought the Wd
"afflatus' might cause comment, and
minded the Justice that a good ma
people thought he rather delighted
using terms not commonly understot
Yes" said Mr.. Justice Holmes, Il Il
myself that it was rather cabrit
word" But he let it stand.
At an age when others find their han
shaking, Mr.. Justice Holmes continu
to write all his opinions and all his Cd
reSpondence with pen and ink, and as
objected to having a typewriter in t
house, his secretaries used Ionghand, t,
Fortunately, it may be, the Justice cou
dispose of complex and highly techniC
questions with a valuable brevity.
an especially prolix and verbose ass
ciate in the Supreme Court he used
say that he was "polyepic' of anoth
that the premise of his opinion and t
conclusion stood forth like precipic
with roaring torrent Of precedents
tween, but that he never quite underso
how his associate got across.
It may be well here to diSpel an Ill
sion, somewhat generally entertaint
that Mr.. Justice Holmes is The Gre
Dissenter." In part this fallacy h
gained ground because OF the striki
nature and phrasing of his diSsen
which can be read and understood wi
ease by laymen, but one need only tn
to the record of Justice Samuel Freem
Miller, Kentuckian, appointed by Ii
coin, who had served % years when
died in 1890, to get an insight into t
dissenting temperament. During tn
whole period he was opposed to the m
jority about one time in five. In a sin
lar length of time Mr.. Justice Holm
dissented about once in ten times.
After 1915, however, a pregnant phra
sank into the common Consciousness
ITT0jtnI Cfafnc. IInIT10nc M
dissenting. Sometimes John Hess
Clarke, who was to resign in 1922, W
associated with them. Others SOmetim
supported them. Chief Justice Ts
joined the minority in 1922 in prOte:
ing against voiding a minimum wage 6
for the District of Columbia, althou
he did not agree with some general O
Servations in the forcible opinion of n
Justice Holmes"
From widely separated points Holm
and BrandeiS travelled COnverging roa
which led them almost always to t
same conclusion. Differing in methc
they were spiritually akin, and they we
fast friends. Thus they came to be ass
ciated in the public mind, and it W
their dissents which attracted public q
tention. But once after the two h
talked a case over informally, Holm
observed to his secretary: I'm afra
Brandeis has the crusading spirit.
talks like one of those upward-and-o
ward fellows"
After Charles Evans Hughes becal
Chief Justice it appeared that Justic
Holmes and BrandeiS were no longer
the minority often, and that the d.
senters were the conservatives, or me1
bers of the court commonly so regardf
1t would be pleasant to suppose tn
these two, by the unassisted might
their thought and the overpowering rig
of their position, finally prevailed again
reaction. The truth is that changes we
taking place In the personnel of t
court And there is a further truth tn