And so the Senate did indefinitely postpone the bill.
Matters stood thus when the government brought process to dissolve the Standard Oil Company, as an unlawful combination. The cause was decided on May 15, 1911, the Chief Justice speaking for the majority of the bench, in one of the most suggestive opinions which I have ever read. To me this opinion, like Taney's opinion in the Charles River Bridge Case, indicates that the tension had reached the breaking point, the court yielding in all directions at once, while the dominant preoccupation of the presiding judge seemed to be to plant his tribunal in such a position that it could so yield, without stultifying itself hopelessly before the legal profession and the public. In striving to reach this position, however, I apprehend that the Chief Justice, unreservedly, crossed the chasm on whose brink American jurists had been shuddering for ninety years. The task the Chief Justice assumed was difficult almost beyond precedent. He proposed to surrender to the vested interests the principle of reasonableness which they demanded, and which the tribunal he represented, together with Congress, had refused to surrender for fifteen years. To pacify the public, which would certainly resent this surrender, he was prepared to punish two hated corporations, while he strove to preserve, so far as he could, the respect of the legal profession and of the public, for the court over which he presided, by maintaining a semblance of consistency.
To accomplish these contradictory results, the Chief Justice began, rather after the manner of Marshall in Marbury v. Madison, by an extra-judicial disquisition. The object of this disquisition was to justify his admission of the evidence of reasonableness as a defence, although it was not needful to decide that such evidence must be admitted in order to dispose of that particular cause. For the Chief Justice very readily agreed that the Standard Oil Company was, in fact, an unreasonable restraint of trade, and must be dissolved, no matter whether it were allowed to prove its reasonable methods or not. Accordingly, he might have contented himself with stating that, admitting for the sake of argument but without approving, all the defendant advanced, he should sustain the government; but to have so disposed of the case would not have suited his purpose. What the Chief Justice had it at heart to do was to surrender a fundamental principle, and yet to appear to make no surrender at all. Hence, he prepared his preliminary and extra-judicial essay on the human reason, of whose precise meaning, I must admit, I still, after many perusals, have grave doubts. I sometimes suspect that the Chief Justice did not wish to be too explicit. So far as I comprehend the Chief Justice, his chain of reasoning amounted to something like this: It was true, he observed, that for fifteen years the Supreme Court had rejected the evidence of reasonableness which he admitted, and had insisted upon a general principle which he might be supposed to renounce, but this apparent discrepancy involved no contradiction. It was only a progression in thought. For, he continued, the judges who, on various previous occasions, sustained that general principle, must have reached their conclusions by the light of reason; to-day we reach a contrary conclusion, but we also do so by the light of reason; therefore, as all these decisions are guided by the light of reason they fundamentally coincide, however much superficially they may seem to differ.[[36]]
I have never supposed that this argument carried complete conviction either to the legal profession, to the public, or to Congress. Certainly, it did not convince Mr. Justice Harlan, who failed to fathom it, and bluntly expressed his astonishment in a dissenting opinion in another cause from which I regret to say I can only quote a couple of paragraphs, although the whole deserves attentive perusal:--
"If I do not misapprehend the opinion just delivered, the Court insists that what was said in the opinion in the Standard Oil Case, was in accordance with our previous decisions in the Trans-Missouri and Joint Traffic Cases, ... if we resort to reason. This statement surprises me quite as much as would a statement that black was white or white was black."
"But now the Court, in accordance with what it denominates the 'rule of reason,' in effect inserts in the act the word 'undue,' which means the same as 'unreasonable,' and thereby makes Congress say what it did not say.... And what, since the passage of the act, it has explicitly refused to say.... In short, the Court now, by judicial legislation, in effect, amends an Act of Congress relating to a subject over which that department of the Government has exclusive cognizance."[[37]]
The phenomenon which amazed Mr. Justice Harlan is, I conceive, perfectly comprehensible, if we reflect a little on the conflict of forces involved, and on the path of least resistance open to an American judge seeking to find for this conflict, a resultant. The regulation or the domination of monopoly was an issue going to the foundation of society, and popular and financial energy had come into violent impact in regard to the control of prices. Popular energy found vent through Congress, while the financiers, as financiers always have and always will, took shelter behind the courts. Congress, in 1890, passed a statute to constrain monopolies, against which financiers protested as being a species of confiscation, and which the Chief Justice himself thought harsh. To this statute the Supreme Court gave a harsh construction, as the Chief Justice had more than once pointed out, when he was still an associate upon the bench. From a series of these decisions an appeal had been made to Congress, and the Senate, in the report from which I have quoted, had sustained the construction given to the statute by the majority of his brethren with whom the Chief Justice differed. Since the last of these decisions, however, the complexion of the bench had been considerably changed by new appointments, much as it had been after Hepburn v. Griswold, and an opportunity seemed to be presented to conciliate every one.
In any other country than the United States, a chief justice so situated would doubtless have affirmed the old precedents, permitting himself, at most, to point out the mischief which, he thought, they worked. Not so a lawyer nurtured under the American constitutional system, which breeds in the judge the conviction that he is superior to the legislator. His instinct, under adequate pressure, is always to overrule anything repugnant to him that a legitimate legislative assembly may have done. In this instance, had the case been one of first impression, nothing would have been easier than to have nullified the Sherman Act as an unreasonable exercise of the Police Power, as judges had been nullifying statutes of which they disapproved for a couple of generations previously; but the case was not one of first impression. On the contrary, the constitutionality of the Sherman Act had been so often upheld by the judiciary that the Chief Justice himself admitted that so long as Congress allowed him to use his reason, these "contentions [were] plainly foreclosed." Therefore, for him the path of least resistance was to use his reason, and, as a magistrate, to amend a statute which Congress ought to have amended, but had unreasonably omitted to amend. Such was the final and logical result of the blending of judicial and legislative functions in a court, as they are blended under the American constitutional system. Nor is it unworthy of remark, that the Chief Justice, in abstaining from questioning the constitutionality of the act, expressly intimated that he did so because, by the use of his reason, he could make that reasonable and constitutional which otherwise might be unreasonable and unconstitutional. The defendants pressed the argument that destroying the freedom of contract, as the Sherman Law destroyed it, was to infringe upon the "constitutional guaranty of due process of law." To this the Chief Justice rejoined: "But the ultimate foundation of all these arguments is the assumption that reason may not be resorted to in interpreting and applying the statute.... As the premise is demonstrated to be unsound by the construction we have given the statute," these arguments need no further notice.[[38]]
Should Congress amend the Sherman Act, as it seems somewhat disposed to do, by explicitly enacting the rule of the Trans-Missouri Case, a grave issue would be presented. The Chief Justice might submit, and thus avert, temporarily at least, a clash; or, he might hold such an amendment unconstitutional as denying to the Court the right to administer the law according to due process. A trial of strength would then be imminent.
Nearly a century ago, Jefferson wrote to Spencer Roane, "The Constitution, on this hypothesis, is a mere thing of wax in the hands of the judiciary, which they may twist and shape into any form they please."[[39]] And however much we may recoil from admitting Jefferson's conclusion to be true, it none the less remains the fact that it has proved itself to be true, and that the people have recognized it to be true, and have taken measures to protect themselves by bringing the judiciary under the same degree of control which they enforce on other legislators. The progression has been steady and uniform, each advance toward an assumption of the legislative function by the judiciary having been counterbalanced by a corresponding extension of authority over the courts by the people. First came the protest against Marbury and Madison in the impeachment of Chase, because, as Giles explained, if judges were to annul laws, the dominant party must have on the bench judges they could trust. Next the Supreme Court of New York imagined the theory of the Police Power, which was adopted by the Supreme Court of the United States in 1837. But it stood to reason that if judges were to suspend constitutional limitations according to their notions of reasonableness, the people must have the means of securing judges whose views touching reasonableness coincided with their own. And behold, within ten years, by the constitution of 1846, New York adopted an elective judiciary.