The Supreme Court

Franklin Roosevelt – Visit to Oliver Wendell Holmes

Why?

“And it shall turn to you for a testimony.” Luke 21:13 KJV

Have you ever had one of those moments in which you felt so proud? I’m not talking about a self-inflicted pride for something you personally accomplish. It’s easy to feel a sense of pride if you accomplish a goal, set a record, receive a promotion, or to have someone say thank you for something you did.

It’s quite another thing to feel proud when you see someone you love do something that is absolutely amazing in your eyes. When you have a child get a new musical instrument, the sounds that come out of it could probably be described many ways, but musical is not usually one of those descriptions you would use.

Yet, when several of these like sounding grunts gather together for a concert, a pride gathers inside the parents and their ears are not so sensitive. What, to others, may not resemble music, is to them, some of the best music they have ever heard.

Why do they think of that music that way? It’s a pride. They see all the effort their small child has put into something. They see the great progress they have made. Those first few notes, that even sent the dog running for cover, have turned into a song that is recognizable. They see their child’s confidence fly with each word of praise that falls upon his ears.

It is in those moments that those parents look past themselves. Their experiences have taught them that you do a lot better when you have someone cheering for you. And there is no better cheerleader than the one who has been there himself.

It is in that spirit that I stood there after the church service on Sunday. Awe covered me completely. There was so much pride that I thought I was going to blow up. Being a man who has a hard time expressing emotions, I did everything I could to contain myself.

My wife and I attend a group, through our church, on Friday nights. This group, at least in my opinion, has gotten very close. Personally, I love every one of them. One of the best parts of the group is that we often share our personal selves with each other, or at least most of us do.

My wife is a very private person. Even when we talk alone, it is sometimes very hard to get her to open up. Don’t get me wrong, she is getting better and better. She’s slowly coming around to realizing that my love for her is true and that I do my very best to protect her and that I really do care about what she thinks. I can’t think of one living person I respect more than my wife.

Sometimes I really feel sorry for the world because they don’t have the opportunity to see that private part of my wife. Her story is inspiring and her words are so sweet. I call her my “secret weapon” because everyone I introduce her to, loves her.

One Friday a new couple, a husband and wife, came to our group. When we finished our lesson, we got started talking. Karen, the new girl of the couple, asked that we pray for her. She had been diagnosed with thyroid cancer that was going to require surgery.

Karen is a sweet, beautiful girl who has four equally beautiful young children. To look at her, you would see a confident girl who is always smiling. She is very well thought of throughout the church. There are some people, who bad things happen to, that you just want to ask God, “Why them?”

As I sat there listening to Karen tell her story, I started getting really nervous. You see, thirty years ago, before I knew her, my wife went through the exact same thing. I turned to my wife and nodded to her that she needed to say something to this girl. My wife whispered, “No, you say something.”

Seeing that Karen really needed someone to be on her side in this crisis, I began to tell her my wife’s story. Slowly, my wife, who rarely speaks, became involved in the conservation. I could see Karen’s eyes light up. She now had someone who knew exactly what she was going through.

Thirty years ago, when my wife went through her thyroid cancer surgery, she was a single mom. She, like Karen, had little children. My wife was also going back to college to get her degree and was in the middle of a semester. It was then that my wife’s life got interrupted by cancer. I’m sure my wife must have muttered to God, “Why me? Why now?”

So my moment of pride came that Sunday after the service. As we were walking out, Karen and her husband were in front of us. I asked how it was going. Karen said that she was going to have to have radioactive iodine therapy. I wasn’t real sure what that was, but my wife knew, because she had to go through it, too.

So my wife went into a conversation with Karen. I turned to Karen’s husband and started a conversation with him while the two of them talked. I beamed with pride as my wife stepped out of her comfort zone and Karen soaked up every word. I knew Karen now knew, everything was going to be alright.

Our country was in very bad shape. National politics was taking a backseat to our own personal distress. Our way of life was slipping away and no one seemed to have any answers. What we did know was that the current way of doing things wasn’t working.

No matter which way you looked, nothing had a positive tint to it. There were no half-full, half-empty questions because there was no water in the cup at all. Everyone had one thing in common and that was misery. It was a real case of living day-to-day because there was no other choice. There was no planning for the future, because we had to seriously figure out how we were going to just make it through the day in front of us.

Unlike other points in our history, this one just didn’t seem to go away. Was this the new American life? Were our standards just going to have to be lowered? Were we returning to a nomadic themed life where we ventured from place to place to survive? But the biggest question of all was probably, “Why us?”

Our citizens decided that they would try a different approach. We would throw out the old leadership and start anew with fresh faces. What did we have to lose? It couldn’t get any worse, could it?

So there, days after he took office, the new President decided to pay a visit to a ninety-two year old legend of our past. I’m sure part of the visit was to pay his respect to this larger than life figure, but he was probably also there to pick part of his brain. After all, with the country in such bad shape, he had a lot of work to do in his effort to get it going again. Time would be one of those commodities he would have too little of and to visit an elderly man just to pay his respects just didn’t make sense.

There the Bible character stood on a hill atop a mountain. I’m sure he was wondering if he had done the right thing. Did he just blow his chance? Justice was just at his fingertips and he could have quickly answered the question, “Why me?” with one stroke. He blinked. He stepped away from the chance to right his wrong.

Ever since he was a young lad, this Bible character struggled to get noticed and appreciated. Don’t get me wrong, he had many adoring fans, they just weren’t the ones he wanted to notice him. With each accomplishment, he would turn to the one who he wanted to hear the cheers from. He was greeted by nothing but silence from him.

He tried harder. Other people looking at him would be amazed by his success, but he didn’t hear the cheers from the one he wanted to hear it from. This only caused him to try harder. Those efforts would produce even more successes in others’ eyes, but not in the eyes of the one he wanted to impress.

He figured it was just him, but he soon started seeing a big change in the leader he wanted to hear praises from. The leader was also hearing the praises from the crowd over his young protégé. There was no pride in his young apprentice. Jealousy bit him like a mosquito. It was a small itch at first, but it wasn’t long before it covered his whole body.

The ninety-two year old man the President came to visit was called Wendell in his youth. He was born to a prominent writer and physician, whose name he borne with a junior attached at the end. His mom’s family was friends with such figures as Henry James Sr., Ralph Waldo Emerson and other transcendentalists.

Wendell would go on to attend Harvard College and one could soon tell that a lot of his parents’ thinking was also built inside him. At Harvard, he once wrote a philosophic paper critical of Plato’s idealist philosophy. That was an unpopular thing to do, but Emerson would advise, “If you strike at a king, you must kill him.” It other words, if you want to develop a belief, stick to it at all costs.

Wendell loved his country and when the shots were fired on Fort Sumter, starting the Civil War, he was one of the first to volunteer. He would return to Harvard to finish school, but as soon as he graduated he enlisted in the fourth battalion of the Massachusetts militia.

Wendell would see a lot of action. He took part in the Peninsula Campaign, the Battle of Fredericksburg, and the Wilderness. In addition to suffering from a near-fatal case of dysentery, he was also wounded at the Battle of Ball’s Bluff, Antietam, and Chancellorsville.

One story went that he saved President Lincoln’s life at the Battle of Fort Stevens. Most, including himself, would argue it never happened, but like the story of George Washington cutting down the cherry tree, which probably also never happened, the story did nothing but enhance his patriotic image.

Seems Lincoln, whose six foot four inch frame would stand out anyway, was wearing a frock coat and a top hat, which probably made him look even taller and more important. Lincoln was looking through field glasses to watch the battle. Seeing a rushing troop of rebels heading in Lincoln’s direction, someone, whom legend holds was Wendell, yelled out for Lincoln to take cover just in time. Although it is a great story, no one is absolutely sure Lincoln was even at that battle.

As the Civil War was coming to a close, Wendell enrolled in Harvard Law School. He would become a lawyer and a very good one at that. But he soon found that he disagreed with the spirit of the law that was a wide-spread belief at the time. He disagreed with the belief that “law was a set of commands of the sovereign, rules of conduct that became legal duties.” He also disagreed that “the opinions of judges could be harmonized in a purely logical system.”

Basically, what Wendell believed was that society evolved. As the society evolves, the judges need to take that evolution into account. If an “old” law was on the books, and society changed, a judge needed to look to see if that “old” law, or “old” way of thinking, still applied instead of waiting on the legislative branches.

Soon the Biblical leader’s jealousy took over his mind and our Bible character had no choice but to leave. Maybe the leader thought this “great” protégé was nothing but a chicken. So, instead of just letting him go, the leader decided he wanted to track down this Bible character and make an example of him by disposing of him.

Every once in a while, in an old movie, you will see a scene in which someone is given the task of chasing a loose chicken. It must be much harder than it seems. It usually results in the person doing the chasing appearing comical. That is almost how I picture this situation, because the harder the leader chased the chicken, the worse the leader looked as the chicken would always escape at the last minute.

But our Biblical character just couldn’t seem to get away from the antics of the person chasing him. The leader, who was chasing him, would stop at nothing. He would send spies. He would kill priests who helped the Biblical character. He would even threaten to destroy cities if he thought they were helping or hiding the Biblical character.

In the days before public restrooms, when you needed to go, you would have to look pretty hard to find a place to have your privacy. The leader had to take one of those breaks as he was searching for our Biblical character. He left his troops and headed to a nearby cave for a few moments of privacy.

The leader walked into the cave and removed his coat. He then went a little distance further, inside the cave, to perform his feat. He did not know that the Biblical character was also in the cave hiding from him. The Biblical character and some of his team remained absolutely silent.

Part of the Biblical characters team urged him to take out the leader. It was the perfect chance. Instead, the Biblical character just snipped part of the coat of the leader. He was even sorry he did that.

Without noticing that someone else was in the cave with him and not noticing, at all, that part of his coat had a piece missing, the leader finished his business and left the cave. That, in itself, would be a great story, but it didn’t end there.

Once the leader got some distance away the Biblical character shouts to the leader and basically taunts him about the big hole in his coat. The leader looks at his coat and then notices the big hole. The Biblical character then shows him the cloth that would fit perfectly in that hole. He then explains that he could have killed him if he wanted to.

The leader is surprised and touched by the Biblical character’s mercy. He acknowledges that the Biblical character is a much better man than he was. He says he will leave him alone and he departs.

Wendell went on to become a professor at Harvard Law School. He then went on to become the Chief Justice of the Massachusetts Supreme Judicial Court. On this court, Wendell was able to apply his beliefs on the state’s judicial system.

President Theodore Roosevelt, a Progressive politician, took notice of Wendell and his Massachusetts Court. It must have impressed him, because Roosevelt nominated and put Wendell on the US Supreme Court. This appointment would become one of Teddy Roosevelt’s greatest regrets.

The Common Law theory, described above, that Wendell believed, led to a very opinionated Justice. Things that we might take for granted today are laws that involved his “weird” opinions. Things like copyrights, contempt, the oath of citizenship, and even the antitrust status of professional baseball are all influenced by his opinions.

When the Schenck v. United States case came before the Supreme Court, Chief Justice Edward D. White asked Justice Oliver Wendell Holmes to write the unanimous opinion of the Court. The case stemmed from the World War I Espionage Act of 1917. The defendants were challenging their conviction and they claimed they were only using their First Amendment rights to free speech as a justification.

The defendants were distributing flyers to encourage men to resist the draft. They lost their case and they had come to the Supreme Court in hopes that their verdict would be overturned. Justice Holmes, on refusing to overturn the conviction, stated that those First Amendment rights could not be understood as absolute. Holmes would state, as an example, “Falsely shouting fire in a theater and causing a panic” might be justified as free speech but it would not protect the other people in the theater who might trample one another, in a panic, in an effort to escape.

In the 1920 case Silverthorne Lumber Co v. United States, the Supreme Court ruled that evidence obtained by illegal search was absolutely, without exception, inadmissible in court. In 1927, Buck v. Bell, he wrote the opinion on the verdict of the Sterilization Act of 1924, in which Virginia allowed forced sterilization of mentally ill patients. He stated that “public welfare” outweighed individual rights.

So when newly-elected President Franklin Roosevelt came into office, it is probably no surprise that one of the first people he wanted to talk to was retired Justice Oliver Wendell Holmes. He understood that to get the American population past the “whys,” of the suffering because of the Great Depression, he had to understand the intent of the Constitution. There was no better teacher to encourage his thinking outside the box than Oliver Wendell Homes.

Many times during his term as President, FDR would stretched the actual words in the Constitution for the greater good of the “public welfare.” He understood that the “whys” would find answers only by actions. He also understood that you had to step outside yourself, or the Constitution in his case, in order to recover.

One would think that Saul would give up on his pursuit of David. Time and time again, his efforts to destroy David had failed. For some reason, he just couldn’t let go of letting David just live out his life. Saul wasted a lot of time on these failed efforts.

Once again, David was very close to Saul’s range. David stood on a hill atop a mountain. I’m sure there were many times David must have asked God, “Why me? Why does Saul keep coming after me? I have done nothing wrong to Saul, but it seems like the only bad things happening in this situation are happening to me.”

The night before, Saul and all his troops were exhausted and fell into a deep sleep. David snuck down and was right beside Saul. Once again, it would have been very easy for him just to kill Saul. Instead he just took Saul’s spear and water jug.

Now David stood on the hill waving the prizes and shouting out at Saul’s “protector” that he wasn’t doing a very good job if it was so easy for him to sneak right up beside him unnoticed. It was the last effort Saul ever made to capture and kill David.

To look at the story of David and Saul, one of the first questions that one would probably ask is “why” was David treated so poorly? “Why” did David have to suffer when he really didn’t do anything wrong? “Why” didn’t David just use one of his chances and get the justice he deserved and kill Saul?

A simple answer to that might be that David’s struggles are what taught David to be a man after God’s own heart. Mercy is easier to extend when you have tasted injustice yourself. Just because life isn’t fair doesn’t mean you can’t help someone else get through the unfair parts. And who is a better guide than the one who has been down the path before?

Once my wife was finished talking to Karen, she told me a little of the conversation and the fears that Karen expressed. My wife expressed surprise that treatments had changed very little over the thirty years since she had the surgery and treatment. My wife was able to help Karen feel better about the outcome.

I turned to my wife and said, “You know when you were in the room isolated during your radioactive iodine treatment, unable to get close to anyone for those few days? I bet you asked God, ‘Why me?’ I think He gave you your answer today.”

Once you recover, you need to help ensure others, who have’t been through it, have the courage to press on themselves. Your strength was gained through your experience and trials. Sometimes the only way for this to happen to others is for you to share, not only your victory, but the struggles you overcame so you could wave that victory flag.

Prayer: Dear Mighty Father, Oh, my struggles are hard. I cry out “Why me?” so often. Help me to realize that my struggles will make me stronger and they also have the potential to help me help someone else one day. Amen.

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