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Book Review: Ruth Bader Ginsburg – In My Own Words Posted - Jan 26, 2020
What this book offers is an insight into who Ruth Bader Ginsburg is, which is very bright, kind, generous, loyal to family, friends, and colleagues, as well as devoted to the law in such a way as to promote equality and fair play in American society. At 333 pages the book is not overly long; best of all, Ms. Ginsburg is one heck of a writer, which means the many articles, legal briefs, and court opinions contained in these pages read exceedingly well. Mary Hartnett and Wendy W. Williams are the editors, and provide various biographical details.

The book features writing samples from throughout her life, beginning with an editorial in her elementary school newspaper, written when she was 13. Interestingly, while other students her age wrote about school plays and club activities, Ruth wrote about the Ten Commandments, Magna Carta, the Bill of Rights, the Declaration of Independence, and the United Nations Charter.

Early on, Ruth's mother recognized that her daughter was gifted. "My mother was very strong about my doing well in school and living up to my potential," recalls Ruth. "Two things were important to her and she repeated them endlessly. One was to 'be a lady,' and that meant conduct yourself civilly, don't let emotions like anger or envy get in your way. And the other was to be independent, which was an unusual message for mothers of that time to be giving their daughters."

At her Brooklyn elementary school, Ruth graduated first in a class (of 144 students), and gave the valedictory speech. Her serious study habits and academic achievements notwithstanding, her classmates did not think of her as a "nerd" or "bookworm." According to one classmate, "She had this very quiet warmth, and a kind of magnetism."

A week before her high school graduation, her 48-year-old mother, who had been sick from cancer, died. That fall, Ruth began attending Cornell University in upstate New York, where she had been awarded a full scholarship. Two teachers proved influential: novelist Vladimir Nabokov, professor of European literature, and Robert E. Cushman, a political scientist and constitutional scholar. Nabokov changed the way she read and wrote. "(Nabokov) used words to paint pictures," recalls Ruth. " Even today, when I read, I notice with pleasure when an author has chosen a particular word, a particular place, for the picture it will convey to the reader." Writes the editors: "Ruth, whose judicial and scholarly writing is distinctively concise and well-crafted, credits Nabokov."

However, it was Robert Cushman, an eminent constitutional scholar and writer on civil liberties, who first encouraged Ruth to enter law school. This was the early 1950s, and Cushman assigned her to research Joe McCarthy's assault on civil liberties. "(He) wanted me to understand two things," Ruth recalls. "One is that we (as a nationwide in giving McCarthy an audience ) were betraying our most fundamental values, and two, that legal skills could help make things better, could help to challenge what was going on."

In November of her senior year, she wrote a letter to the editor of the Cornell Daily Sun on the admissibility of wiretapping evidence in espionage cases, in response to an article by two Cornell law students that favored a law in support of such tactics then before Congress. She writes: "We may be anxious to reduce crime, but we should remember in our system of justice, the presumption of innocence is prime. . . ."

It was during her first year at Cornell that Ms Bader, then 17, met the man who would become her best friend, husband and "life partner." At the time, Martin Ginsburg was 18 and a sophomore. The authors tell us he was handsome, gregarious, brilliant and brash. Marty and Ruth discovered they had much in common: both liked to laugh, enjoyed playing charades, and loved opera. They were married in June 1954, mere weeks after Ruth graduated from Cornell and Marty had finished his first year at Harvard Law School. Their daughter Jane was born the following summer (in July 1955), while the couple lived in Fort Sill, Oklahoma, where Marty was fulfilling his military obligation. In 1956 Ruth joined her husband at Harvard Law School, to become one of the first women to be admitted (she was one of nine women in a class of about 500). Her high academic achievements earned her a place on the Harvard Law Review.

After Marty graduated and took a job at one of New York City's top tax law firms, Ruth transferred to Columbia Law School where she graduated in 1959, tied for first in class. She applied to a number of law firms but none offered her a job, ostensibly because she was a woman. When a teaching position opened across the Hudson River, in Newark, New Jersey at State University School of Law, she accepted. In 1970, she argued her first case, before the Tenth Circuit Court of Appeals, in Denver, Colorado. After winning, she was instrumental in launching the ACLU's Women's Rights Project, and became the leading advocate for gender equality. At the same time she became a professor at the Columbia University of Law. A year later, she argued her first case before the U.S. Supreme Court (Frontiero v. Richardson), the first of six such appearances before the nation's highest court, five of which she would win.

In 1980, President Jimmy Carter appointed her to a seat on the U.S. Court of Appeals, for the D.C. Circuit; in 1993 President Bill Clinton appointed her Associate Justice to the U.S. Supreme Court.

The book contains a number of Ginsburg's tributes to people she admired, including Belva Lockwood, a nineteenth-century pioneer in advancing gender equality; Sandra Day O'Connor, with whom she served on the Supreme Court; brilliant Judah P. Benjamin, who turned down President Millard Fillmore's nomination to the Supreme Court; and Louis Brandeis and Stephen Breyer, who both served on the High Court with great distinction; Gloria Steinem; retired Chief Justice William Rehnquist; and Associate Justice Antonin Scalia.

Also included are her articles on such topics as "Workways of the Supreme Court"; "Judicial Independence"; "The Role of Dissenting Opinions"; "Human Dignity and Equal Justice Under Law"; and various speeches, such as "The Rose Garden Acceptance Speech" in which she accepted President Clinton's appointment to the Supreme Court, and "Senate Confirmation Hearing Opening Statement" and "The VMI Bench Announcement", the Supreme Court's majority decision which she wrote that allowed women for the first time into all-male Virginia Military Institute; and, interestingly, "Law and Lawyers in Opera."

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Eric Clapton – a tribute
Posted - Jan 13, 2020
Who knew? While the Beatles (raised on American Rock 'n' Roll) were perfecting their sound in the waterfront clubs of Hamburg, Germany, there was another group of English lads (raised on Mississippi Delta Blues) who were perfecting their art in subterranean London Blues clubs. This phenomenon, while out of the public's eye, was happening on the eve of the Beatles' historic Atlantic crossing. At the time, every British band to follow the Beatles to the U.S. was steeped in American Rock 'n' Roll. Who knew of the blues scene then taking place in London?

Indeed, who knew of an extraordinary blues guitarist named Eric Clapton who, by the early 1970s, would not only transcend American blues but rival the Beatles in popularity? In fact, Clapton had star power that dwarfed mere musical genres. In 1965, within a few weeks of making his debut as the Yardbirds' featured guitarist, he would see his name scrawled on the wall of a London club, with these words, "Clapton is God."

Yes, Eric Clapton, before he was a world-famous Pop star, had the English girls gushing at his blonde locks, while the English boys were inspired by his free-wheeling guitar solos, and buying electric guitars and all the imported Blues records they could find, and, like Clapton before them, were practicing all hours of the day and night, in hopes of playing like him.

While John, Paul, George and Ringo worshipped the likes of Elvis Presley, Little Richard, and the Everly Brothers, Clapton's idols were dirt-poor Mississippi sharecroppers with names like Robert Johnson, Muddy Waters, and the three Kings–Albert, Freddie, and B.B. Clapton purchased their records and spent countless hours trying to imitate the unique sound they were coaxing from second-hand electric guitars and low-tech amplifiers.

Atlantic Records executive Ahmet Ertegün heard Eric Clapton perform while standing at a bar in a London club. "It was the most incredible blues guitar playing I'd ever heard," he remembers now. At first he thought it was B.B. King, until he realized B.B King was not there. So he turned to Wilson Picket who had a gig at the club, and said something like, "Your guitarist sure can play the blues."

Wilson said, "My guitarist is having a drink at the bar a couple of seats down from you." Ertegun turned around to see who it was he was hearing, and thought he saw a vision. "It was this beautiful kid who looked like some young angel," he says now. "He had his eyes closed and played guitar like nobody I'd ever heard."

And he thought, "I've got to him sign to a contract." The problem was Eric Clapton was footloose, and could not be got.

Clapton had picked up guitar at 14, and at 16, made his public debut with The Roosters. Ever restless, he moved on to Casey Jones and the Engineers. When he was invited to vacation with friends in the Mediterranean, he quit Casey Jones and the Engineers without a second thought. His friends thought he was crazy. Casey Jones and the Engineers were going places, and you're going to quit? Gigs like that rarely come along.

Such was his reputation and star power that when Clapton returned to London he didn't have to look for a gig. The Yardbirds had just replaced the Rolling Stones at the Marquee Club in London, and were looking for a lead guitarist. Clapton was invited to join the band without so much as an audition.

But he didn't stay long. In the wake of the Beatles' recent world-wide success, the Yardbirds management decided the blues was too limiting, and convinced the band to record a pop tune, which they did. Of all things, the song featured bongos in place of electric guitar. Clapton, a blues purist, hated it, and walked out. The band shrugged and replaced him with another guitar sensation, Jeff Beck, and never looked back. Within a year "For Your Love" topped the charts in Britain and, where it counted most, in the U.S. With that the Yardbirds boarded an airplane and followed the Beatles across the Atlantic, to perform on U.S. television, and to begin a lucrative American tour.

And what of Eric Clapton, the Blues purist? As talented and charismatic as he was, he missed the first British invasion of America. In 1966, while the Beatles–and now the Yardbirds–were growing rich and famous performing American Rock 'n' Roll, Clapton joined a hard-core blues band headed by singer/keyboardist John Mayall, which, despite having a record contract, and making one of the greatest Blues albums of all time, failed to chart a hit single. Sure, American blues was big in London, but where it mattered most, on American Top-40 radio, the blues was a bust. Clapton was a star all right, but performing before a very limited audience.

Nonetheless, it was playing with Mayall that Clapton matched the right guitar (a Les Paul Gibson) with the right amplifier (a Marshall stack), and developed his signature "woman" sound. It was also during this time that he performed with drummer Ginger Baker and bassist Jack Bruce, which impressed him greatly. Like Clapton, both Baker and Bruce were absolute masters of their instrument, and loved to improvise. Clapton thought, "If ever I form a band, these guys must be a part of it." And so it was a year or so later that Baker called him on the phone about forming a blues band. Clapton's immediate response: "I'm in, if Jack Bruce is a part of it." Clapton's idea was to form a trio–bass, guitar and drums–that worked so well in jazz.

The three got together at Baker's London flat to see if this trio idea had any merit. A two-minute song turned into a twenty-minute jam session, which left the three exhausted–and highly motivated to see where their new band (named "Cream") would take them.

While they quickly found a manager, who lined up plenty of clubs for Cream to play in, thy struggled to find their identity. Clapton saw himself as the singer/songwriter frontman. Only he rarely sang, and had trouble writing songs. On the other hand, Jack Bruce did sing, and possessed a wonderfully bluesy voice. Most important of all, songwriting came easily to him. When beat-poet Pete Brown showed up with wildly evocative lyrics, he found a songwriting partner in Jack Bruce. Brown wrote the words, and Bruce wrote the music. When they entered a studio to record their first album, the role of lead-singer fell not to Eric Clapton, but to Jack Bruce.

While Clapton didn't write songs, he did have a list of blues standards for the trio to perform, on a few of which he actually did sing lead. And that pretty much comprised the playlist of their fist album: a sprinkling of catchy Bruce-Brown originals, coupled with several blues standards; add Ginger Bakers' manic drum solo, and you have the contents of "Fresh Cream", their debut album.

DISRAELI GEARS

The problem with "Fresh Cream" was no one liked it. Their legion of fans, who loved Cream's live instrumental improvisations, didn't like it; the band didn't like it; management didn't like it; and, worst of all, their record company didn't like it. While "Fresh Cream" sold reasonably well in Great Britain, it failed to chart in America. Thus, their American record label, Atlantic Records, invited them to record their next album at their New York City studio, where Atlantic's head honcho (the aforementioned Ahmet Ertegun) would exercise more creative control.

Ertegun's first plan was to make Clapton the frontman. Despite their prodigious talents, he saw Jack Bruce and Ginger Baker as mere sidemen. Adding insult to injury, Ertegun dismissed the latest batch of Bruce-Brown songs as not commercial enough.

To punch up their sound, he brought in sound engineer Tom Dowd (who managed the sound board for Aretha Franklin's hit records); to insure quality control, he made a young, musically-hip New Yorker named Felix Pappalardi their producer.

Pappalardi proved to be an inspired choice. He quickly saw the possibilities of making Cream recording stars, while Bruce discovered the two had much in common–both played bass, both were classically trained, and both were proficient songwriters.

After Ertegun dismissed several Bruce-Brown songs as too experimental, he set about making Clapton the frontman. The problem was Clapton was shy about singing, which dumbfounded Ertegun. That and the fact Clapton was not a songwriter, dashed Ertegun's dream of making the blond Englishman a star.

Clapton did have one song he wanted to record, however. It was yet another blues standard, called, "Hey, Lawdy Mama." Despite Clapton's inspired arrangement, "Hey, Lawdy Mama" was deemed not commercial enough. However, Felix Pappalardi heard something in the arrangement that he liked. He made an acetate and took it home. When he returned the following morning and presented Clapton with contemporary lyrics, Clapton duly recorded the vocals, thus was born one of Cream's signature songs, "Strange Brew."

Because the band was struggling to come up commercial songs, Pappalardi introduced the band to another of his tunes, "World of Pain," which, after discovering that Jack's and Eric's vocals blended nicely together, was recorded as a duet.

One night, while fooling around on his double bass, Jack Bruce came up with the riff for what would become their all-time biggest hit, "Sunshine of Your." It was early morning when Bruce discovered this riff, and Pete Brown, ever attentive, looked out the hotel window as dawn broke over New York City, and crafted these words, "It's getting near dawn, when night closes a tired eye." When the song was finished, it was presented to the record execs. Everyone was stunned by the power of Bruce's riff, and decided that "Sunshine" would be their next single.

After that, the contents of "Disraeli Gears" (the album's title), more or less fell into place, with Jack Bruce singing all the Bruce-Brown songs, and Eric Clapton singing the few blues standards that made the cut.

On the strength of "Disraeli Gears," Cream emerged as the surprise hit of 1967, and was heralded as the leader of the second British invasion–comprised mostly of English blues bands. Ironically, Cream was by now more pop than blues, thanks to Ahmet Ertegun. As one critic put it, Cream's idea of the blues was "purple, with polkadots." For sure, Disraeli Gears significantly changed the band's musical direction. But in the live arena, such as in New York's Madison Square Garden, the Fillmore West in San Francisco, and the Los Angeles Forum, Cream reverted back to a handful of blues standards, which they used as jumping off points for extended jam sessions–with Eric Clapton out front improvising fantastic blues riffs on his Les Paul Gibson. Clearly, he was the star Ahmet Ertegun had envisioned all along.

Below are three albums that testify to Clapton's special gifts on electric guitar:

JOHN MAYALL AND ERIC CLAPTON: BLUES BREAKERS (1966) – In hindsight, "Blues Breakers", as a collection of blues and pop tunes, is, perhaps, over-rated. Frontman John Mayall, while a dedicated aficionado of American blues, is not that great of a lead singer. What makes the record great is Eric Clapton's scintillating guitar solos, which proved highly influential, both in England and in America. At the same time, the album made stars of two band members: Eric Clapton (obviously), and bassist John McVie, who, with drummer Mick Fleetwood, would go on to form Fleetwood Mac.

WHEELS OF FIRE (1968) – Cello, viola, calliope, Swiss hand bells, glockenspiel? On a rock album? Are you kidding? The members of Cream weren’t really rock musicians, not in the literal sense; they didn’t learn to play in some garage in the San Fernando Valley. Jack Bruce was classically trained on cello. He and Ginger Baker were seasoned jazz professionals and veterans of countless nights in London blues clubs. They were musical risk-takers, and highly inventive. Eric Clapton, who grew up listening to the Mississippi Delta blues of Robert Johnson and the like, was a guitarist of considerable taste and imagination, who never overplayed his hand. In producer Felix Pappalardi they had the perfect foil. In the summer of 1968 “Wheels of Fire” topped the album charts nationally, and became the first double-LP to be certified platinum. As surprising, having reached the summit of Rock Stardom, Cream decided to call it quits.

Looking back, it’s clear “Wheels of Fire” was their masterpiece—a moody, jazzy, bluesy, hard-rocking collections of songs on Disc One (“In The Studio”), and on Disc Two (“Live at the Fillmore”) a live album to top all live albums, a tour-de-force showcasing the virtuoso talents of all three—Baker on drums, Bruce on electric bass and harmonica, and Clapton on his six-string Les Paul Gibson. The expression, “It doesn’t get any better than this,” though highly over-used, applies. Cream did for guitar, bass, and drums what Elvis Presley did for rock vocalists, and the Beatles did for singer/songwriters. Unwittingly, Cream launched extended jamming and long instrumental solos as a regular feature of live performances, and in turn launched a host of heavy metal bands, but nobody, and I mean nobody, could rival them in the live arena.

Apart from cellos, violas and the like, “Wheels of Fire” is a guitar album. From “White Room” to “Deserted Cities of the Heart,” Clapton’s guitar dominates: multi-tracked soloing on the bridge of “Politician,” Chicago-style blues on “Sitting on Top of the World” and “Born Under a Bad Sign,” quicksilver solos on “Those Were the Days” and “Deserted Cities of the Heart” and infectious wah-wahing on “White Room” (their follow-up hit to "Sunshine of Your Love"). And it continues unabated on Disc Two (“Live at the Fillmore”) with “Crossroads” and the 15-minute blues improvisation, “Spoonful.” And the aforementioned cellos and violas? On “White Room” violas are employed to complement Clapton’s descending guitar chords that open and close the song; on “Deserted Cities of the Heart” viola and cello serve as serene interludes in what is a frenzied rock anthem. Rounding out the album are Baker’s quirky “Passing the Time” (featuring glockenspiel and calliope) and the equally quirky “Pressed Rat and Warthog” (featuring Pappalaradi's trumpet solo), and Bruce’s exquisite “As You Said” (with Bruce on acoustic guitar, cello and vocal).

What “Wheels of Fire” actually is, is an eclectic, sophisticated (by rock standards) collection of pop and blues tunes that for some (including Eric Clapton) is an acquired taste. That it topped the charts was perhaps more the result of their huge fan base and legendary reputation than the record’s commercial appeal. Also driving sales was the reputation of their previous album, “Disraeli Gears,” a pop psychedelic classic featuring a host of radio-friendly songs. “Wheels of Fire” was a decidedly different song collection than “Disraeli Gears,”—less pop but more interesting; a reflection of the group’s divergent musical tastes that, by the summer of 1968, was driving them apart.

LAYLA AND OTHER ASSORTED LOVE SONGS (1970) – It seemed Eric Clapton had lived several lives prior to making “Layla and Other Assorted Love Songs”. He had walked away from more great bands than any musician had a right to: Casey Jones and the Engineers, the Yardbirds, John Mayall, Cream, Blind Faith, and Delaney & Bonnie & Friends. And every time he landed squarely on his feet with yet another great group of musicians. Who wouldn’t want to play with Eric Clapton, “guitar hero” extraodinaire? Everyone wanted him in their band. The Rolling Stones wanted him. Both John Lennon and George Harrison created bands that featured Clapton on guitar. Promoters were standing in line to sign him to a national tour. By 1970, however, Clapton had tired of being a guitar hero. He wanted to be a singer first and a guitarist second, to have his own band where he would be the undisputed leader. In forming Derek and the Dominos (as his new band was named), he got just that. There was only one problem—he was not as yet a prolific song writer. At the time, and by his own admission, he was good for about one song per year. Thus, when Clapton’s new band arrived at Criteria Studios in Miami to make an album, the only finished song was “Layla.” The rest was bits and scraps of half-formed ideas. From this, coupled with endless jamming, “Layla and Other Love Songs” emerged, with many of the songs co-written by keyboardist Bobby Whitlock. On the advice of producer Tom Dowd, guitarist Duane Allman of the Allman Brothers Band, was invited to sit in, and the music soared to unimagined heights. “We knew it was phenomenal,” said engineer Karl Richardson. “You couldn’t not know that the music flying out of Studio B was phenomenal. You’d have to be deaf.” The result was a masterpiece. The album didn’t sell as expected, not at first. A year after its release, a single (“Layla”) ascended the Top Forty, and album sales finally took off. By then, Clapton had walked out on yet another great band, and Derek and the Dominos slipped into history.

Clapton would continue to tour and make records, not with yet another band, but as a solo artist.

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Book Review: Oliver Wendell Holmes: A life in War, Law, and Ideas
Posted - Jan 05, 2020
In 1926, at the ripe old age of 85, Justice Oliver Wendell Holmes, discovered his popularity was so widespread that it lent him something of a rock star status, such was the impact of his dissenting opinions as a justice of the U.S. Supreme Court. That was the year TIME magazine put his face on the cover of its March issue. In the cover story, journalist Walter Lippmann wrote, "He is a thinker who has made thinking, even about law, beautiful." Known as "The Great Dissenter", Holmes penned pithy minority opinions, many of which were eventually adopted by the Court, including the First Amendment right of free speech. He also found in favor of limiting employee working hours and restricting child labor. Biographer/historian Stephen Budiansky has done a bang up job in researching and writing Holmes's biography. At 461 pages of text, plus notes, it's that rare book that once started, can't be easily put down. I enjoyed every word, and when I finished, with nothing more to read, felt a bit empty.

With the outbreak of the American Civil War, Holmes enlisted in the Union Army and became a decorated infantry officer; as a student, he graduated with honors from both Harvard University and Harvard Law School; to make a living, he practiced law in his hometown of Boston, eventually to join a prominent law firm; and he wrote the classic treatise on American law, "The Common Law"; he lectured and ultimately taught a class at Harvard Law; and he served on the Massachusetts Supreme Judicial Court for 20 years, the last three as chief justice. In 1902, he was appointed to the U.S. Supreme Court, where he served another 30 years.

Holmes considered himself first and foremost a writer. In fact, that is what he originally wanted to be–a writer. His prose style is spare, direct, and to the point. This was especially true of his Court opinions, which, at a time when his colleagues on the bench tended to write expansively, Holmes was mercifully brief and to the point. Says the author: “Holmes wrote like no one else, with a style as American and distinctive as Mark Twain or Walt Whitman. . . .” Regarding his legal writing, the author says, “No one knew how to strip off excess judicial verbal poundage better than Holmes. . . . Even in his day he stood out as unusual for the economy and brevity of his decisions . . . . Holmes never worried he might be leaving out an essential point because he viewed everything but the decisive crux of a case as extraneous.” The author adds: “(Holmes) almost completely avoided legal jargon and cant phrases in his judicial writing. But more than that was the freshness of his prose that reflected a clarity of thinking which commanded attention. . . To Holmes, the act of writing was above all the act of thinking. Finding the right words was not rhetorical ornamentation: it was the very essence of his work of thinking through a complex legal problem.”

Oliver Wendell Holmes Jr. was born March 8, 1841, to a family of Boston Brahmins. As a class, the Brahmins were well-educated, wealthy, and influential, with descendants that included the first Europeans to reach America's shore, some of whom arrived on the Mayflower. Holmes's father, Oliver Wendell Holmes, Sr. was a novelist and poet of renown (note: two of his poems are included in "One Hundred and One Famous Poems").

Prior to the Civil War, the Holmes family were unabashed abolitionists. Prior to graduation from Harvard and before the first shot was fired at Fort 
Sumpter, Holmes enlisted in the fourth battalion, Massachusetts militia. After graduation, he received a commission as first lieutenant in the Twentieth Regiment of the Massachusetts Volunteer Infantry: he partook in the Peninsula Campaign, the Battle of Fredericksburg, and the Wilderness. He suffered serious wounds at the Battle of Ball's Bluff, at Antietam, and at Chancellorsville. (He missed the Battle of Gettysburg, while mending from his wounds.) After he died, when his Washington lawyer opened Holmes's private safe deposit box, he found a small paper parcel. Wrapped inside were two musket balls, and on the paper was a note in Holmes's hand which read: "These were taken from my body in the Civil War."

POST WAR

In the summer of 1864, Holmes left the military and returned home, wrote poetry, and thought about trying to make a career as a writer of philosophy, like his family friend Ralph Waldo Emerson. After visiting Emerson, he decided it was not for him, and enrolled at Harvard Law School. After graduation he took up the practice of law and for about a year met informally with a group of high-brow friends who referred to themselves as “The Metaphysical Club.” The name was something of a joke, as the group was anything but interested in metaphysics. Indeed, their discussions led to the creation of a new branch of philosophy known as pragmatism.

While studying for his bar examination, Holmes began working for the prestigious law firm of Chandler, Shattuck and Thayer. Also around this time, he married Fanny Bowditch Dixwell, whom he had been courting for a number of years. If Holmes weren’t busy enough, he also began editing the American Law Review. Meanwhile, James B. Thayer, the junior partner at Chandler, Shattuk and Thayer, had been approached to prepare a revised edition of “Commentaries on American Law.” This was the American counterpart to William Blackstone’s classic “Commentaries on the Laws of England.” Originally published in 1826 by Chancellor James Kent of the New York state courts, the hefty tome was by now badly in need of an update. Like Blackstone, Kent presented a compendium of major appellate court decisions that practicing attorneys needed in order to look up cases and cite as precedents. The revision proved to be a major undertaking. At some point, Holmes was called in to assist. Eventually, he took over the project.

Writes the author: “The work quickly became something close to an obsession for him.” For two years, Holmes devoted all of his free time and energy to the project. With the publishing deadline of July 1872 fast approaching, he wrote to Thayer saying that he thought it more important to take the time to do the job thoroughly than to meet the original two-year deadline, even though “it has been at considerable pecuniary sacrifice that I have done as I have.” The book would be published in late 1873, and go on to become a classic of American law. Holmes summarized his hard-won understanding in a series of lectures, later collected and published in 1881as "The Common Law". Among the most famous lines quoted from "The Common Law" is: “The life of the law has not been logic; it has been experience.”

Holmes’s labors gave him an extraordinary familiarity with the leading cases across the entire breadth of the law, from property to admiralty. Years later, Chief Justice Charles Evans Hughes, under whom Holmes served on the High Court and wrote many majority opinions, often under pressure of deadline (Holmes was quick with a pen), opined that the reason Holmes was able to turn out his decisions so quickly was a direct consequence of this early and total immersion in the law, “which had given him an unusual and complete mastery of common law decisions and history. The effect of this in his habit as a judge was that, where others would be compelled to devote an enormous amount of time to the rediscovery of the law, Holmes needed to make no re-examination—the law was at his finger tips.” Like Alexander Hamilton before him, Holmes read everything, and remembered everything.

JUDGE OF THE MASSACHUSETTS SUPREME JUDICIAL COURT

Holmes taught at Harvard Law school for one semester, but did not enjoy it. Thus, in late 1882, when he was offered a seat on his state's Supreme Judicial Court, he accepted gladly. Later, he admitted that his brief stint in "the ivory tower" had done little more than leave him feeling trapped. On the bench, Holmes discovered a pleasure in his work he hadn't expected. Part of the pleasure, he reported, came from the feeling of being on the firing line and getting out of the artificial tranquility of the cloister, where "the professor, the man of letters, gives up one-half of his life that his protected talent may grow and flower in peace." Having to "make up your mind at your peril upon a living question," was by contrast bracing and filled him with a sense of life. It also gave him a chance to write influential court opinions, many of which would change American law.

At about the time Holmes entered the bench, the nation was swept up in widespread labor unrest, the result of several decades of expanding industry: coal, steel, railroads and the like, where labor—much of it immigrant—was routinely exploited in the interest of corporate profits. Throughout the1880s, strikes were on the rise, and reached a peak in the 1890s. State legislatures passed laws to regulate business and to protect labor, by improving working conditions and limiting working hours. Labor disputes with management were common and sometimes violent, and many looked to the courts for redress. Holmes tended to favor labor and therefore state laws that were designed to protect worker rights. His conservative brothers on the bench, however, tended to favor big business, which often made Holmes the lone dissenting voice. It was not a position he relished. As a rule, he said, he disliked the practice of dissent; he thought it better to “shut up” than to file a lone dissent, and in his twenty years on the Massachusetts bench he would issue only a dozen written dissents in all.

However, the majority opinion in Commonwealth v. Perry pushed him to the edge, and he felt he could not remain silent. His objection to the court’s majority decision was not just a difference over a technical point of law; he was deeply bothered by politics masquerading as objective legal analysis. In upholding “economic doctrine which prevailed about fifty years ago,” he said what he didn’t like about the case was that judges were “taking sides upon debatable and often burning questions.”

When it came to interpreting the law, says the author, Holmes was by nature a skeptic. Unlike some jurists, he never mistook his own views for “eternal truth.” His belief that “certainty is illusion” made him reluctant to insist that “one rule rather than another had the sanction of the universe. . . .” It was his opinion to let the states make the laws regulating business and labor alike, and for the courts to refrain from interfering. “We should remember that (a constitution) is a frame of government for men of opposite opinions and for the future, and therefore not hastily import into it our views, or expressing limitations derived merely from the practice of the past.” The question to ask was not whether the constitution specifically authorized a certain power, he said, but only whether it prohibited it.

JUSTICE OF THE U.S. SUPREME COURT

In February 1902, an associate justice on the U.S. Supreme Court died, thus opening up a seat for Holmes's appointment, by President Theodore Roosevelt. That December, he was unanimously confirmed in the U.S. Senate, and, on the eve of his sixty-second birthday, was on his way to a new life in Washington D.C.

The most powerful and certainly the most colorful figure on the Court was John Marshall Harlan. As Holmes would be known in his later years, Harlan was called “the Great Dissenter.” In many ways Holmes and Harlan had much in common—both were unusually bright, both had a gift for coining memorable phrases, and both had views that were often at odds with their brethren on the bench. Ironically, the two never got along.

Leading the conservative majority was Associate Justice Rufus Peckham, of Albany, New York. In a number of important cases he had been a leading force on the Court, in reading laissez-faire economic ideas into the Constitution via a doctrine that the Fourteenth Amendment embodied the absolute protection of “liberty of contract” — which Peckham had extolled in one opinion as a right of man “endowed by his Creator.”

Holmes’s first opinion, delivered on the first Monday of January 1903, was Otis v. Parkers, which had been brought as a challenge to a provision in California’s state constitution that banned buying stock on margin. The case gave Holmes a chance to take on the Court’s growing use of the Fourteenth Amendment to invalidate state laws, which it had been doing for the better part of 20 years. In writing the majority opinion for the Court he carried all the justices save two: Peckham and David J. Brewer, in asserting that there were limits to how far the High Court might substitute its own judgement for that of state legislatures. “General propositions do not carry us far,” he said.

Further on he wrote, “Considerable latitude must be allowed for differences of view, as well as for possible peculiar conditions which this Court can know but imperfectly, if at all. . . . Even if the provision before us should seem to us not to have been justified by the circumstances locally existing in California at the time when it was passed, it is shown by its adoption to have expressed a deep-seated conviction on the part of the people (of California) concerned as to what policy is required. Such a deep-seated conviction is entitled to great respect.”

The next major case for Holmes to have made his mark (with a wicked dissenting opinion), was Lochner v. New York, about which entire books have been written. The facts are simple enough. In 1895, the New York State legislature passed a law regulating sanitation and working conditions in New York City bakeries. For the most part city bakeries were located in the basements of tenement buildings. Floors and walls were usually nothing more than packed dirt, leaking sewer pipes fouled the air, ventilation was nonexistent, lighting minimal. Ten-hour days, and sixty-hour work weeks were the norm, hourly pay was minimal. The issue was whether or not the states had the right to regulate business. In a 5-4 opinion the Court ruled they did not, by striking down the state law as unconstitutional. Justice Peckham, who had never set foot inside a bakery in his life, wrote the majority opinion. He said, “clean and wholesome bread does not depend upon whether the baker works but ten hours per day”; the law was rather “an illegal interference with the rights of individuals, both employers and employees, to make contracts regarding labor upon such terms as they may think best.” The principle upon which he based his argument was ”the liberty of contract/substantive due process clause”, a concept that cannot to be found in the U. S. Constitution; as well as Peckham's take on the Fourteenth Amendment, that was in line with the doctrine of laissez-faire economics as put forth by an English philosopher named Herbert Spencer, whose treatise “Social Statics,” proclaimed laissez-faire economics as “natural law.” (note: at the time Herbert Spencer’s “Social Statics” was the bible among laissez-faire economists).

Holmes was having none of it. In one of this most famous dissenting opinions he wrote: “The Fourteenth Amendment does not enact Mr. Herbert Spencer’s Social Statics.” In other words, there was nothing “natural” about laissez-faire; it was just an economic theory, and “a constitution is not intended to embody a particular economic theory,” wrote Holmes. “It is made for people of fundamentally different views, and the accident of our finding certain opinions natural and familiar or novel and shocking ought not to conclude our judgement upon the question whether statutes embodying them conflict with the Constitution of the United States. General principles do not decide concrete cases.”

HOLMES ON FREE SPEECH

The Civil War changed Holmes, which is important in understanding his evolving attitude toward free speech. Like many young men who enlisted in the military, Holmes went off to war certain of the rightness of the cause. He was, after all an abolitionist, and the war was being fought to abolish the evil of slavery. In time, however, he began to see that the slave-holding South was equally convinced of the rightness of its cause. Holmes returned from the war as a skeptic, believing that certitude, if left unchecked, would inevitably lead to violence, as it had with the Civil War. The answer, as he saw it, was tolerance, and tolerance was at its heart a civilizing force. Writes the author: “Holmes’s skeptical view of life was the living soul of a tolerant, democratic, and restrained judicial philosophy.”

Holmes had little patience with the jurists of his day whose idea that the answers were to be found with nothing more than a dictionary and a literal reading of the words of the U.S. Constitution. And he was equally impatient with jurists who believed they could find answers by divining what the Founders might have thought about the matter—as judicial “textualists” and “originalists” in our day are wont to assert. Writes the author, “Holmes would have been equally scornful of the contention that judges face a binary choice of ‘strict construction’ or ‘judicial activism.’ As Holmes frequently took pains to point out, most questions of constitutional law come down to claims of competing rights, which the Constitution itself cannot possibly settle.

“The Constitution,” Holmes wrote, “is not a set of ‘mathematical formulas’; it does not divide fields of black and white; it is not the partisan of a particular set of ethical or economic opinions. It is rather a frame of government for men of opposite opinions and for the future.”

As we have seen, in cases of business versus labor, Holmes tended to side with the working man. As such he was often in the minority. In cases of free speech, especially during World War I—which pitted war protestors and anarchists against the U.S. government—Holmes at first sided with the federal government. Among his most famous decisions was the court’s majority opinion he wrote in Schenck v. United States (1919). In this case, the court refused to overturn the conviction of Charles Schenck, an antiwar activist. Schenck had distributed pamphlets against U.S. involvement in World War I and had been found guilty of violating the Espionage Act. Writing the Court’s majority opinion, Holmes said that each case must be examined to determine “whether the words are used in such circumstances and are of such a nature as to create a clear and present danger and that they will bring about substantive evils that Congress has a right to prevent." Further on, he wrote, “The most stringent protection of free speech would not protect a man in falsely shouting fire in a theater and causing a panic.”

That same year, Holmes reversed himself in Abrams v. United States, a case in which the court upheld the convictions of several Russian-born political radicals under the Espionage Act. Holmes thought that the case failed to meet the “clear and present danger” test. In a dissenting opinion, he wrote: “(W)hen men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by the 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, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. . . . While that experiment is part of our system I think we should be eternally vigilant against attempts to check the expression of opinions that we loathe and believe to be fraught with death, unless they so imminently threaten immediate interference with the lawful and pressing purpose of the law that an immediate check is required to save the country.”

CELEBRITYHOOD AT AGE 85

As Holmes entered his eighties, he discovered he was something of a celebrity. Being essentially a private person, this was something he neither sought nor welcomed. In our day, the same phenomenon has happened to another Supreme Court justice–Ruth Bader Ginsburg.

In January 1932, after nearly 30 years of service, Holmes retired from the Supreme Court. He died on March 6, 1935, in Washington D.C.–just two days shy of his 94th birthday, and was buried next to his wife (who had died six years earlier) in Arlington National Cemetery in Virginia.

Final note: In a speech Holmes gave at Harvard in 1886, on "The Profession of the Law," he spoke of the loneliness of original work, the "black gulf of solitude more isolating than that which surrounds the dying man," but whose reward is "the secret joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought." Concludes the author, "Holmes reaped that reward far more than he ever dared believe, which was the final testimony to the greatness of his skeptical humanity."

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Book Review: "Faster! A Racer's Diary" by Jackie Stewart and Peter Manso
Posted - Dec 29, 2019
It was a magical time to be in motor racing. Anything was possible. It was a time when a sharp entrepreneur like Ken Tyrrell could leverage the talent of a driver like Jackie Stewart, to attract several deep-pocket sponsors, including the Ford Motor Company, and create a racing team from scratch. Tyrrell coupled a French chassis (the vaunted Matra MS-80) with a British Ford Cosworth V8 engine, and with Stewart as driver, beat the likes of Ferrari, Lotus and McLaren to win the F-1 world championship. The year was 1969. "Faster! A Racer's Diary" by Jackie Stewart and Peter Manso, is an account of what happened the following season, which in some ways is even more incredible. Best of all, it's told from Stewart's point of view (Manso's job was to transcribe the tapes Stewart recorded throughout the season, and to edit and arrange the manuscript into a reader-friendly book).

Stewart's daily account takes you through the highs and lows of an entire racing season. You see other drivers as Stewart sees them, learn what he thinks of them, and how he assesses their talent (he's ruthlessly frank). 1970 was among the bloodiest F-1 seasons on record; two of Stewart's best friends died in horrific crashes. You feel Stewart's pain and anguish in learning their fate, and of having to face their wives–now widows–with the bad news, as well as face his own wife, who worries constantly about his well-being.

Stewart is that rare driver who can describe what it's like to drive a racing car. He puts you down inside the deep cockpit so that you see what he sees, feel what he feels: the world blurring past, while in front everything is clear and sharply defined and–such is the deep state of his concentration–arrive in slow motion. You feel the Gs build as Stewart brakes and downshifts for an oncoming curve, and leans his machine in, pushing it to its absolute limit: the car feeling as though it were up on tiptoes, as Stewart describes it. Exciting stuff.

Equally interesting is the dilemma Stewart and Tyrrell face at the beginning of the season, in trying to find a suitable car to replace the Matra MS80–no longer available–that won the 1969 world championship. Tyrrell meets with a number of English car builders–at BRM, Brabham, McLaren, and Lola–but nothing comes of it. Finally, he decides to build his own car. While waiting for a car to be designed and built, Stewart begins the season driving a newly developed March F-1. While he manages to win the Spanish Grand Prix, he absolutely loathes the car. When at last their new team car arrives (the Tyrrell 001), Stewart spends a number of frustrating test sessions sorting it out, which he describes in detail. When it seems the car is a hopeless mess, miraculously it all comes right, and Stewart takes his place once again at the front of the grid.

"Faster! A Racer's Diary" was written long ago but its message is timeless. Not that much has changed in the intervening 40 years. Today's F-1 teams, despite having $300 million annual budgets, and an army of engineers, technicians and mechanics, still undergo the same trials and tribulations as Stewart and Tyrrell did in 1970. If you love motor racing, or fancy yourself as a racing driver, get this book and discover what it's really like out there.

Final note, this book was among a select few that inspired me to write my first book, a racing novel, entitled "The Ragged Edge."

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Work of My Sons
 

Morning Softly - Water Echoes Movement
-Released in 2014. Bill made guitar riffs and synth tracks at home, got Lya Finston to write some lyrics and sing, and got Scott to provide some bass.

Morning Softly - Early Eerie Feeling
-Recorded in 2014. Songs written by Bill, at home. Synthesizers were added later. Some drumming done by Brendan Lenihan.

Scott Nisley - Brick City Skies
-Released in 2014. With his piano melodies and vocals, Scott entrusted the production of his album to several studio musicians.

The 45's - Roof-Hopping
-Recorded in 2010. A collaborative effort between Scott and Bill Nisley, Adam Sherman, and Zach Belka.


Oh, Yeah...
 

Richard Nisley's Brothers in Cars
Thanksgiving Day, 1967. From L to R: my brothers David, Charles, and Rob. Photo by John Nisley.
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