Theodore Rex - Edmund Morris [188]
Justice William Rufus Day, Roosevelt’s second appointee to the Bench (in place of the wistful Taft), was a self-effacing little man of mild liberal tendencies. He, too, could be relied on. Justice David J. Brewer certainly could not, being an ultraconservative, patrician ideologue. The other Republicans on the Bench were less predictable. Noisy old John Marshall Harlan (“the last of the tobacco-spitting judges,” Holmes fondly called him) was a libertarian and a maverick. He had been against monopoly in the past, dissenting in U.S. v. E. C. Knight, but was wary of too much federal power. Justice Henry Brown was such a cold-blooded legal theorist, analyzing the statute books as if they were so many volumes of algebra, that he was capable of finding that x equaled y in the face of unanimous sentiment for z. Justice Joseph McKenna was an austere plodder, ill trained in law, and crotchety on issues he could not understand.
On the Democratic side, Chief Justice Melville W. Fuller and Justices Rufus Peckham and Edward D. White were conservatives of uncertain persuasion. They seemed likely to vote against the government—although Roosevelt had hopes of the affable White.
By noon, the Court Chamber in the Capitol was crowded with representatives of all three government branches. Attorney General Knox sat directly in front of the bench, exuding his usual porcelain impassivity. William Howard Taft sprawled nearby, a beached whale. Senators Spooner and Lodge conferred in low voices at the bar. “Oyez, oyez!” the clerk cried. Silence fell as nine Justices filed in, silk robes rustling. The attendance of Justice Brown, who was ill, emphasized the importance of the proceedings.
Chief Justice Fuller seated himself and waited until the chamber had settled. Two dozen reporters standing at the back of the chamber craned to see which way his white head would swivel. He turned to the right, and nodded at Oliver Wendell Holmes.
Holmes proceeded to read, in his clear, sharp voice, a decree reversal of no popular interest whatever. The audience slumped disappointedly. After about five minutes, silence fell again. Fuller gave a second nod, and Justice Harlan announced, “Case Number 277.” Instantly there was a scurrying of shoes, as messengers rushed off to alert congressmen that Northern Securities was “up.” Within minutes, the corridor was jammed all the way to the Rotunda.
“Let us see what are the facts disclosed by the record,” Harlan began. He showed how in 1901 “defendant Hill” and “defendant Morgan” had combined the Great Northern and Northern Pacific railroads into a holding company headquartered in New Jersey—thus making the interests of all stockholders identical. “No scheme or device could more certainly come within the words of the [Sherman] Act … or could more effectively and certainly suppress free competition.” Harlan’s strong, measured voice continued to rise and fall, but evidently the Administration had won its case. The messengers scurried off again, this time to telegraph and telephone offices. Harlan was still reading when they got back. He did not reach his summation until twenty past one: “The judgment of the Court is that the decree below be, and hereby is, affirmed.”
Cables flashed across the country: NORTHERN SECURITIES DECISION AFFIRMED. It was five minutes before someone thought to telephone the President, who was just sitting down to lunch with John Hay. Roosevelt was overjoyed, but declined to comment. William Loeb told reporters that the President felt the victory belonged to Knox.
The dimensions of that victory were still unclear. Back in court, Justice Brewer struck an encouraging note as he concurred with the decision, then a discouraging one as he rejected Harlan’s opinion. But he offered another of his own,