As previous biographers have noted, Holmes became an idol of progressives after he joined the Supreme Court. He firmly opposed using the 14th Amendment to protect, as one justice put it, “the most sacred rights of property.” Likewise, he opposed the court’s decisions to strike down state laws that mandated a minimum wage or the maximum length of a workday.
One such case was Lochner v. New York (1905). The state legislature had passed a law to regulate sanitation and the length of the workday in commercial bakeries, which were often in the basements of tenements. Joseph Lochner, a bakery owner who had been fined for keeping his workers beyond the 10-hour-per-day limit, appealed the ruling, and the Supreme Court overturned the state law, claiming that it interfered with the right to make a contract and thus endangered laissez-faire. Holmes dissented from the majority opinion, arguing that “a constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the State or of laissez faire. It is made for people of fundamentally differing views.”
Progressives like Felix Frankfurter and Harold Laski applauded Holmes’s eloquent dissent in Lochner v. New York, but they were disappointed by his decision in Patterson v. Colorado (1907). When the court upheld the fine levied against a Denver newspaper for criticizing a decision by a lower court, Holmes noted that the Bill of Rights didn’t apply to the states. In his view, the government could constitutionally limit free speech if it was deemed “contrary to the public welfare.” He reaffirmed this view a decade later in Debs v. United States (1919), in which he voted to uphold the conviction of Eugene Debs for speaking out against World War I, and in Schenck v. United States (also in 1919), Holmes sustained the conviction of socialists who had distributed leaflets protesting the wartime draft, because wartime implied that a “clear and present danger” existed, which they had ignored. The progressives’ idol had feet of clay after all.
After Harvard faculty and alumni attempted to have Frankfurter and Laski fired for their political opinions and because they were Jews, Holmes revisited his position on free speech. In the landmark case Abrams v. United States (1919), which involved five anti-war radicals who had been sentenced to 20 years in prison for violating the Espionage Act, Holmes dissented. Refining his arguments about a “clear and present danger,” he wrote that the defendants’ speech had not put the war effort at risk. And even if it had, he declared himself in favor of a “free trade in ideas—that the best test of truth is the power of the thought to get itself accepted in the competition of the market…. That,” he added, “is the theory of our Constitution. It is an experiment, as all life is an experiment.”