Among the most significant of Mr. Taft's acts were his appointments of the Supreme Court judges. On the death of Chief Justice Fuller, in 1910, he selected for that high post Associate Justice White. In the course of his administration, Mr. Taft also had occasion to select five associate justices, and he appointed Mr. Horace H. Lurton, of Tennessee, Charles E. Hughes, governor of New York, Mr. Willis Van Devanter, of Wyoming, Mr. Joseph R. Lamar, of Georgia, and Mr. Mahlon Pitney, of New Jersey. Thus within four years the President was able to designate a majority of the judges of the most powerful court in the world, and to select the Chief Justice who presided over it.
It was hardly to be expected that the exercise of such a significant power would escape criticism, particularly in view of the nature of the cases which are passed upon by that Court. Mr. Bryan was particularly severe in his attacks, charging the President with deliberately packing the Court. "You appointed to the Chief Justiceship of the Supreme Court," he said, "Justice White who thirteen years ago took the trusts' side of the trust question.[81] ... You appointed Governor Hughes to the Supreme Court bench after he had interpreted your platform to suit the trusts." Mr. Bryan also demanded that Mr. Taft let the people know "the influences" that dictated his appointments. Mr. Bryan attacked particularly the selection of Mr. Van Devanter, declaring that the latter, by his decisions in the lower court, was a notorious favorite of corporation interests. Mr. Taft looked upon these attacks as insults to himself and the judges, and treated them with the scant courtesy which, in his opinion, they deserved. The episode, however, was of no little significance in stirring up public interest in the constitution of a tribunal that was traditionally supposed to be "non-political" in its character.
The Anti-Trust Cases
Mr. Taft approached the trust problem with the pre-conceptions of the lawyer who believes that the indefinite dissolution of combinations is possible under the law. His predecessor had, it is true, instituted many proceedings against trusts, but there was a certain lack of sharpness in his tone, which was doubtless due to the fact that he believed and openly declared that indiscriminate prosecutions under the Sherman law (which was, in his opinion, unsound in many features) were highly undesirable. Mr. Taft, on the other hand, apparently looked at the law and not the economics of the problem. During Harrison's administration there had been four bills in equity and three indictments under the Sherman law; during Cleveland's administration, four bills in equity, two indictments, two informations for contempt; during McKinley's administration, three bills in equity. Mr. Roosevelt had to his record, eighteen bills in equity, twenty-five indictments, and one forfeiture proceeding. Within three years, Mr. Taft had twenty-two bills in equity and forty-five indictments to his credit.
The very vigor with which Mr. Taft pressed the cases against the trusts did more, perhaps, to force a consideration of the whole question by the public than did Mr. Roosevelt's extended messages. As has been pointed out, the members of Congress who enacted the Sherman law were very much confused in their notions as to what trusts really were and what combinations and practices were in fact to be considered in restraint of trade.[82] And it must be confessed that the decisions and opinions of the courts, up to the beginning of Mr. Taft's administration, had not done much to clarify the law. In the Trans-Missouri case, decided in 1897, the Supreme Court had declared in effect that all combinations in restraint of trade, whether reasonable or unreasonable, were in fact forbidden by the law, Justice White dissenting.[83]
This was not done by the Court inadvertently. Mr. Justice Peckham, speaking for the majority of the Court, distinctly marked the fact that arguments had been directed to that tribunal, "against the inclusion of all contracts in restraint of trade, as provided for by the language of the act ... upon the alleged presumption that Congress, notwithstanding the language of the act, could not have intended to embrace all contracts, but only such as were in unreasonable restraint of trade. Under these circumstances we are, therefore, asked to hold that the act of Congress excepts contracts which are not in unreasonable restraint of trade, and which only keep rates up to a reasonable price, notwithstanding the language of the act makes no such exception. In other words, we are asked to read into the act by way of judicial legislation an exception that is not placed there by the lawmaking branch of the government.... It may be that the policy evidenced by the passage of the act itself will, if carried out, result in disaster to the roads.... Whether that will be the result or not we do not know and cannot predict. These considerations are, however, not for us. If the act ought to read as contended for by the defendants, Congress is the body to amend it, and not this Court by a process of judicial legislation wholly unjustifiable."
It was no doubt fortunate for the business interests of the country that no earlier administration undertook a searching and drastic prosecution of combinations under the Sherman law; for in the view of the language of the Court it is difficult to imagine any kind of important interconcern agreement which would not be illegal. This very delay in the vigorous enforcement of the law enabled the country at large to take a new view of the trusts and to throw aside much of the prejudice which had characterized politics in the eighties and early nineties. The lawless practices of the great combinations and their corrupting influence were extensively discovered and understood; but it became increasingly difficult for demagogues to convince the public that any good could accrue to anybody from the ruthless attempts to disintegrate all large combinations in business. The more radical sections, which had formerly applauded the platform orator in his tirades against trusts, were turning away from indiscriminate abuse and listening more attentively than ever to the Socialists who held, and had held for half a century, to the doctrine that the trusts were a natural product of economic evolution and were merely paving the way to national ownership on a large scale.
Consequently, between the two forces, the representatives of corporate interests on the one hand and the spokesmen for socialistic doctrines on the other, the old demand for the immediate and unconditional destruction of the trusts was sharply modified. Corporations came to see that undesirable as "government regulation" might be, it was still more desirable than destruction. They, therefore, drew to themselves a large support from sections of the population which did not share socialistic ideas, and still could see nothing but folly in attempting to resist what seemed to have the force of nature. Many working-class representatives ceased to wage war on the trusts as such, for they did not expect to get into the oil, copper, or steel business for themselves; and the farmers, on account of rising prices and a large appreciation in land values, listened with less gladness to the "war-to-the-hilt" orator. Nevertheless, a large section of the population, composed particularly of business men and manufacturers of the lesser industries, hoped to "reëstablish" what they called "fair conditions of competition" by dissolving into smaller units the huge corporations that dominated industry.
In response to this demand, Mr. Taft pushed through the cases against the Standard Oil Company and the American Tobacco Company; and in May, 1911, the Supreme Court handed down decisions dissolving these combinations. In the course of his opinions, Chief Justice White, who had dissented in the Trans-Missouri case mentioned above, gave an interpretation of the Sherman Act which was regarded quite generally as an abandonment of the principles enunciated by the Court in that case. He said: "The statute, under this view, evidenced the intent not to restrain the right to make and enforce contracts, whether resulting from combinations or otherwise, which did not unduly restrain interstate and foreign commerce, but to protect the commerce from being restrained by methods, whether new or old, which would constitute an interference that is an undue restraint." Thus the Chief Justice restated the doctrine of "reasonableness" which he had formulated in his dissenting opinion in the earlier case, but this time as the spokesman of the Court. It is true, he attempted with great dialectic skill to reconcile the old and the new opinions, and make it appear that there had been no change in the theories of the Court; but his attempt was not convincing to every one, for many shared the view expressed by Justice Harlan, to the effect that the attempt at reconciliation partook of the nature of a statement that black is white and white is black.