Theodore Rex - Edmund Morris [189]
Justice Holmes dissented.
“Great cases,” he lectured the stupefied audience, “like hard cases, make bad law. For great cases are called great, not by reason of their real importance in shaping the law of the future, but because of some accident of immediate overwhelming interest which appeals to the feelings and distorts the judgment.”
He seemed to be implying that an “accident of immediate overwhelming interest” named Theodore Roosevelt had made an emotional issue of Northern Securities, and was exaggerating its legal significance.
The statute of which we have to find the meaning is a criminal statute … of a very sweeping and general character. It hits “every” contract or combination of the prohibited sort, great or small, and “every” person who shall monopolize or attempt to monopolize, the sense of the act, “any part” of the trade or commerce among the several states. There is a natual inclination to assume that it was directed against certain great combinations and to read it in that light. It does not say so. On the contrary, it says “every,” and “any part.” Still was it directed specially against railroads.…
If the act before us is to be carried out according to what seems to me to be the logic of the argument for the Government, which I do not believe that it will be, I can see no part of the conduct of life with which on similar principles Congress might not interfere [and] … hardly any transaction concerning commerce between the states that may not be made a crime by the finding of a jury or a court.
Holmes pointed out that the Sherman Act forbade only combinations in restraint of trade, not combinations in restraint of competition. He saw no evidence that the Northern Securities Company had “attempted to monopolize some portion of the trade or commerce of the realm,” nor had it discriminated against “strangers” to its charter. He rejected Knox’s plea that mere power to discriminate was as culpable as discrimination itself. What was monopoly anyway? A single railroad running down a narrow valley could be said to monopolize local traffic. “Yet I suppose,” Holmes scoffed, “no one would say the statute forbids a combination of men into a corporation to build and run such a railroad in the United States.” Neither could the sheer size of Northern Securities be equated with monopoly. “Size has nothing to do with the matter.”
The Justice concluded with a sarcastic reference to the narrowness of today’s verdict.
I am happy to know that only a minority of my brethren adopt an interpretation of the [Sherman] Law which in my opinion would make eternal the bellum omnium contra omnes, and disintegrate society so far as it could into individual atoms. If that were its intent I should regard calling such a law a regulation of commerce as a mere pretense. It would be an attempt to reorganize society. I am not concerned with the wisdom of such an attempt, but I believe that Congress was not entrusted by the Constitution with the power to make it, and I am deeply persuaded that it has not tried.
So by a margin of just one concurring vote, case number 277 sank to the footnotes of history.
JOHN HAY, who personally disapproved of antitrust actions, was struck by the bitterness of the President’s remarks about Holmes in the days following. “I could carve out of a banana a judge with more backbone than that,” Roosevelt raged. Holmes had not behaved like “a party man, a constructive statesman.” For a while it seemed that the Justice was going to become persona non grata at the White House, but Roosevelt’s sudden storms were short. “I have such confidence in his great heartedness,” Holmes wrote a friend, “that I don’t expect for a moment that after he has had time to cool down it will affect our relations.”
Knox and Taft joined in lamenting the