OUR JUDICIAL OLIGARCHY: (SIXTH ARTICLE)

...They said in express words, in the former cases, in response to the earnest contentions of counsel, that to insert by construction the word 'unreasonable' or 'undue' in the act of Congress would be judicial legislation...

...North American Review, July, 1911, Vol...

...What had occurred...

...4 id., p. 191...

...Samuel Untemeyer, a well known organizer and counsel for many corporations, says: 13 "That the Court has retraced its steps and has unsaid and undone much of what was decided in the Trans-Missouri and Joint Traffic Association cases is, however, hardly open to discussion...

...case...

...Perhaps in your attitude is found the answer to the question, "What shall we do to take our Courts out of the field of legislation...

...This is exactly the view taken of the statute, by the same learned Justice in the Trans-Missouri and Joint Traffic cases heretofore discussed, and he adds nothing in the Standard Oil case to the very able argument in support of those views which he submitted in his dissenting opinion in the Trans-Missouri case...

...Justice Harlan, in the Tobacco case, said: 6 "It is scarcely just to the majority in those two cases for the court at this late day to say or to intimate that they interpreted the act of Congress without regard to the 'rule of reason,' or to assume, as the court now does, that the act was, for the first time in the Standard Oil case, interpreted in the 'light of reason.' One thing is certain, 'rule of reason,' to which the court 5 Battershall an Domestic Relations, p. 310...

...Meantime, not a letter of the act has been changed...

...171 U. S., 505), if we resort to reason...

...The Supreme Court, in deciding that certain acts violated the statute, had simply stepped aside from the decision in hand, and said in substance that certain other acts equally condemned by the language of the statute, and the previous decisions of the Court, would not in the future be held to violate the statute...

...Had the members of the Court met and done this without deciding any case at all, I suppose no one would have defended their act...

...In the following article, Mr...

...case, and the rule announced in the Trans-Missouri and Joint Traffic cases noticed above...

...Further, in the same dissenting opinion, Mr...

...In the American Tobacco case, however, the learned Chief Justice, writing the opinion for the Court, after construing the statute the same as he had done in the Standard Oil case, said: 3 "We say the doctrine thus stated was in accord with all the previous decisions of this court, despite the fact that the contrary view was sometimes erroneously attributed to some of the expressions used in two prior decisions...

...In the opinion by Mr...

...If in the interests of the ordinary man these modern economic methods and tendencies must be overhauled and destroyed—if union of effort and capital solely because it is effort and capital in union must be circumvented—this latest decision has drawn the load of the only gun thus far trained against the enemy...

...What has changed is the attitude of the public mind—the public mind, informed by this fourteen years, of experience...

...How do YOU feel about it...

...They will be criticized frankly and freely...

...Justice White in the Standard Oil case, after trying to harmonize that decision with the two previous cases mentioned, and evidently with unsatisfactory results, it is said: 2 "And in order, not in the slightest degree to be wanting in frankness, we say that in so far, however, as by separating the general language used in the opinions in the freight association and joint traffic cases from the context and the subject and parties with which the cases were concerned, it may be conceived that the language referred to conflicts with the construction which we give the statute, they are now necessarily limited and qualified...

...The evidence to date indicates that they will not do so...

...Justice Harlan in the above quotation is peculiarly significant...

...As a mere weapon it is dismantled...

...Justice Harlan and used in an opinion, carefully prepared, and deliberately filed to be a record of the Court's proceeding in that case for all future time...

...case it is contended that there is no conflict between the rule laid down in that and the Standard Oil 1221 U. S. 1, p. 60...

...It is obvious, from the opinions in the former cases, that the majority did not grope about in darkness, but in discharging the solemn duty put on them they stood out in the full glare of the 'light of reason' and felt and said time and again that the court could not, consistently with the Constitution, and would not, usurp the functions of Congress by indulging in judicial legislation...

...Of this reasoning, Mr...

...Chief Justice Fuller, Justice Brown, Justice Brewer and Justice Peckham, who, with Justice Harlan, constituted a majority of the Court when the Trans-Missouri and Joint Traffic cases were decided, were no longer members of the Court...

...Had the Court read into the Anti-Trust Act the word "unreasonable" or "undue" when that statute first came up for consideration, it would not have been less judicial legislation, then than it was to do the same thing in the Standard Oil and Tobacco cases...

...It chose a course, difficult to justify, as Justice Harlan's powerful dissenting opinion well shows, on strictly technical grounds and with due regard to the principle of stare decisis, but amply justified upon the broader consideration of the public welfare...

...On June 21, 1911, following the decisions in the Standard Oil and Tobacco Company cases, in a speech at the Yale Alumni Luncheon, President Taft said: "It has fallen to my lot to have five members of that Court, (the Supreme Court) bear my commission * * * I believe these decisions (Standard Oil and American Tobacco Co...

...But as a practical matter, wherein lies the difference...

...Scores of most important contracts and transactions that violated the law on the 14th day of May, 1911, were valid on the succeeding day...

...That was a year and a half ago, however...

...May, 1911, EVERY contract, in whatever form, in restraint of trade among the states or with foreign nations, was illegal and every combination built upon such contract or contracts was illegal, and subject to be destroyed by the judgment of a Court, and the participants therein punished as criminals...

...Their views on questions likely to come before them will be known and proclaimed in advance...

...Or take another case:—-All states have statutes against assault and battery...

...In this condition, Congress stepped in and said every contract in restraint of trade is invalid...

...Taft Applauds—Will the People...

...I beg to say that, in my judgment, the majority, in the former cases, were guided by the 'rule of reason;' for, it may be assumed, they knew quite as well as others what the rules of reason require when a court seeks to ascertain the will of Congress as expressed in a statute...

...We may, if we please, criticise and denounce that exercise of power as judicial legislation and as being in theory lawless and dangerous and contrary to the spirit of our institutions, as Mr...

...Even those who rejoice at a construction of the anti-trust law which practically destroys it, generally concede that the Court was obliged to legislate in order to reach the desired end...

...People Will Control the Judges IT IS SAFE to say that when gentlemen like the foregoing frankly concede that the Court is exercising legislative power, the mass of people will soon recognize the same fact...

...If the Court, under the Constitution, has no authority to do this, what does it matter whether at the time its members were engaged in deciding a case or not...

...In his next article, Mr...

...Roe will discuss the charge that wealth has an improper advantage before the Courts...

...In other words, every contract which was already void under the law, was declared invalid by the statute...

...The same construction is placed upon the statute in the American Tobacco Company case, but there is this difference noticeable between the opinions in the two cases: In the Standard Oil case, Chief Justice White, in his opinion, seems to admit that the views there expressed conflict with the opinion of the majority of the Court in the Trans-Missouri and Joint Traffic cases, while in the American Tobacco Co...

...As a weapon it will look dismantled...

...But, would this act of the court be equivalent to reading into the statute the word unreasonable so as to make it provide that only a convict who unreasonably breaks out of jail shall be guilty of a crime...

...Suppose a person is drowning or about to fall or throw himself in front of an approaching train and an onlooker by the exercise of violence, and in the case of a person drowning, possibly very great violence, succeeds in rescuing the one in peril...

...ONE OF THE most important results of this decision will be that it will bring home to the public mind the conviction that the Courts must be reckoned with as a law-making branch of the government...

...Hon," as equivalent to the construction which the majority placed upon the statute in the Standard Oil case and the American Tobacco Co...

...Beck says: "I confess that I cannot follow the analogy...

...If this is revolutionary, the judges are the revolutionists...

...Their terms of office will be brief...

...What the court fourteen years ago said was not in the act the court now says is in the act...

...Obviously the statute was not intended to cover such a case...

...The rescuer clearly committed acts which ordinarily would amount to assault and battery, but would any court, under the circumstances, hold that an assault and battery had been committed...

...With all due respect to that august tribunal which the members of the Bar so justly revere, the progressive, constructive policy of which we so profoundly admire, one is at times disposed to regret that the traditions of the Court do not seem to permit that it admit its fallibility and frankly announce that it has decided to reject, overrule, or change the law laid down in its earlier decisions, when that is in fact its real purpose, instead of resorting to circumlocution and to distinctions that do not always distinguish...

...It would certainly seem that the learned Chief Justice was hard pressed for an argument when he quoted from the Joint Traffic case, the language that "The Act of Congress must have a reasonable construe2 id., p. 67...

...On the fifteenth day of May, 1911, all this was changed, and it was ONLY SUCH CONTRACTS as some court might hold "to be in "undue" or "unreasonable" restraint of trade that were unlawful...

...Justice Harlan says: 7 "By every conceivable form of expression the majority, in the Trans-Missouri and Joint Traffic cases, adjudged that the act of Congress did not allow restraint of interstate trade to any extent or in any form, and three times it expressly rejected the theory, which had been persistently advanced, that the act should be construed as if it had in it the word 'unreasonable' or 'undue.' But now the court, in accordance with what it de-nominatesthe '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, what, as I think, it plainly did not intend to say, and what, since the passage of the act, it has explicitly refused to say...

...That was all...

...It was only combinations built upon such "unreasonable" contracts that were unlawful, and only participants in such last named combinations that became criminals...

...as it now stands interpreted, will look like a gun from which the load has been extracted...

...Justice Grosscup of the United States Circuit Court of Appeals, in writing of the decisions recently said:9 "It would be mere hypocrisy to say that the court has not turned upon itself...

...This statement surprises me quite as much as would a statement that black was white or white was black...

...cases agreed that the contracts and acts there considered were unlawful under any and every view of the statute...

...Their places had been taken by new men...

...Trans-Missouri Freight Association and Joint Traffic cases, 166 U. S. 290, and 171 U. S. 505...

...13id., n. 78-79...

...8 id., p. 191...

...Is the declaration that an Act of Congress must be construed unreasonably equivalent to reading the word unreasonable into the statute...

...But had those words, or either of them, been read into the statute by the Courts in the first instance, the right of the Court so to do, which is the question we are here discussing, would not so clearly have been made an issue before the whole country...

...How does your neighbor feel...

...Must we then treat this action of the court as equivalent to reading into the statute the word unreasonable and make it say in effect that only a person, who unreasonably commits an assault and battery is guilty of a crime...

...But Mr...

...The court would give the statute a reasonable construction and say that it was not intended to cover such a case...

...It has steadily refused to amend the act so as to tolerate a restraint of interstate commerce even where such resraint could be said to be 'reasonable' or 'due.' 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...

...To illustrate:—At common law, there were two kinds of beatings which a husband could administer to his wife...

...3 221 U. S., 106 p. 170...

...Editor's Note...

...refers, does not justify the perversion of the plain words of an act in order to defeat the will of Congress...

...He told us how these decisions overturned the rule of law that has been followed by all our courts, from the Supreme Court down, ever since the passage of the Sherman Act-—a rule of law that accepted the act exactly as it was written by Congess...

...A Surprising Statement P RBCISELY what the Court decided in the Standard Oil case, in the opinion handed down on May 15, 1911, is stated briefly, in that opinion, written by Chief Justice White, as follows: "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 or foreign commerce, but to protect the commerce from being restrained by methods, whether old or new, which would constitute an interference that is an undue restraint...

...Four lawyers, recently elevated to the Bench, agreed with the view of this statute, always contended for by Mr...

...The fact that this statute had been construed in one way by every department of the government for many years, and that such construction had been repeatedly declared to be the only safe and proper one, had naturally and properly too led the people of the country to take the same view Of it, and now to change all this, to recant everything that has been said on the subject, and adopt a view many times rejected and declared dangerous, the attention of the whole country is focused upon the Court's action...

...Justice Harlan, previously had constituted a majority of the Court were gone...

...Again he says:12 "Chief Justice White, in my judgment the ablest dialectician of the Supreme Court since Marshall's time, justifies the assumption of legislative power to determine what is reasonable in the matter of economics by referring to the fact------" that the Courts have heretofore determined whether the litigant has been found guilty of fraud...

...Suppose, however, the jail takes fire and the convict, in order to avoid being burned to death, breaks out of jail...

...Let me say, also, that as we all agree that the combination in question was illegal under any construction of the anti-trust act, there was not the slightest necessity to enter upon an extended argument to show that the act of Congress was to be read as if it contained the word 'unreasonable' or 'undue.' All that is said in the court's opinion in support of that view is, I say with respect, obiter dicta, pure and simple...

...Roe suggests some of the results that are certain to flow from the practice of our Courts of usurping the law-making functions...

...MY PURPOSE in gathering together the authorities showing the construction of the anti-trust statute by every department of the government, is not to show that the Supreme Court has reversed itself, nor to convict it of an inconsistency...

...Now the majority opinion simply holds that Congress did not mean what it said, but that it only meant every contract which was in unreasonable restraint of trade, was invalid...

...The court would give the statute a reasonable construction and hold that it was never intended to apply to a case such as I have described...

...This WaS done also without any question being presented to the Court, that required or called for the opinion rendered...

...The men, who standing with Mr...

...Untemeyer concludes that the end justifies the means and says he desires to add his "tribute to the Court for its broad and statesmanlike construction of the Sherman Law...

...They will learn what the public sentiment demands, not through their "windows" but through their doors...

...13id., p. 64...

...Why then was it necessary to go outside the records in the cases, and outside of anything before the Court, and anything which the Court could really decide in the cases, before it, to indulge in an academic discussion of this statute...

...What it was not lawful to do on the 14th day of May, 1911, to restrain commerce and destroy competition, it was lawful to do on the succeeding day...

...On the 14th day of 7 id., p. 192...

...No new law had been passed by Congress...

...A Pertinent Query APERTINENT INQUIRY which arises at this point is: If the doctrine of the Trans-Missouri Freight case, and Joint Traffic case, is the same as that of the Standard Oil and Tobacco cases, why was it necessary for Mr...

...Justice Harlan and other eminent jurists of that great Court have from time to time arraigned it...

...They will be elected and not appointed...

...That such view was a mistaken one was fully pointed out in the Standard Oil case, and is additionally shown by a passage in the opinion in the Joint Traffic case, as follows (171 U. S. 568): 'The act of Congress must have a reasonable construction or else there would scarcely be an agreement or contract among business men that could not be said to have, indirectly or remotely, some bearing on interstate commerce, and possibly to restrain it.'" Concerning the above quoted statement, Justice Harlan, in his dissenting opinion, in the American Tobacco case, said:4 "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, (166 U. S., 290...

...Now, when a statute steps in and says that any beating of the wife by the husband is unlawful, the Supreme Court, by a parity of reasoning, should hold, if the case of a wifebeater could be brought before it, that the statute did not really mean to prohibit all beating of wives by husbands, but only such beatings as had been held unlawful at common law...

...5 The other was an unreasonable beating, where too large a stick was used or too much violence employed...

...10id., p. 9. 11 id., p. 60...

...A majority of the Court, as constituted when the Standard Oil and American Tobacco cases were decided, were ready to agree with the construction of this statute, always contended for by the Chief Justice...

...No new statute even had been presented to a Court for consideration...

...One was what the law described as an unreasonable restraint of trade, and the other a reasonable restraint of trade...

...James M. Beck, for many years the United States Attor-torney for the Eastern District of Pennsylvania, and Assistant Attorney General of the United States, after pointing out the hardships involved-in enforcing the Anti-Trust Act as it was written, has this to say:11 "Such was the real crisis which confronted the Supreme Court when it considered the Standard Oil and Tobacco cases...

...Roe reviewed the recent Standard Oil and Tobacco decisions of the united Slates Supreme Court...

...decisions) have done, and will continue to do great good to all the business of the country and that they have laid down a line of distinction which it is not difficult for honest and intelligent business men to follow...

...All this must follow the conviction in the public mind that judges have, in effect, become Legislators...

...There seems to be but one answer to the question...

...Justice White, respecting the "rule of reason," Mr...

...Would any one contend that a court would so construe the statute as to make it apply to such a case and hold that the person so breaking out of jail had committed a crime...

...This is strong language, especially so when coming from Mr...

...Clearly not...

...Whether the people will follow the illustrious example of President Taft, who now upholds the construction of the statute he formerly vigorously condemned, remains to be seen...

...Harlan's Vigorous Language THE ARGUMENT of the majority opinion is that, at common law, or in the condition of the law as it existed in this country prior to the passage of the Anti Trust Act, there were two kinds of contracts in restraint of trade, one of which was valid and the other not...

...No new or novel state of facts had been presented to a court for consideration...

...One was a reasonable beating, which was lawful, the old rule being that the husband could use "a stick as large as his finger but not larger than his thumb...

...All members of the Court in both the Standard Oil and American Tobacco Co...

...There are windows in the Supreme Court room from which what is going on in the world outside is in plain sight...

...Then it will follow, that since judges legislate, they will be treated as legislators...

...1, p. 3. Again the same eminent jurist says;10 "From the view-point of a larger number of those to whom this inquiry is a matter of deep concern, perhaps a large majority yet, the Sherman Act...

...Justice White, and three times rejected by the Court, and the policy of the government, as to combinations and monopolies in restraint of trade, was changed in a day...

...It could do little to save a dangerous situation unless it was prepared to disregard its own precedents and conform the interpretation of the statute to the reasonable necessities of the American people and the obvious tendencies of an age preeminently of combination...

...Concerning the contentions of the majority of the Court, as set forth in the opinions of Mr...

...Justice White, now Chief Justice, to write a long and elaborate dissenting opinion in the first of these cases, and likewise dissent in the second one...

...Changed Court: Changed Policy THE LAST POINT made by Mr...

...8As we have already seen, President Taft, in a Special Message to • Congress, under date of January 7, 1910, condemned in the most vigorous language, the proposition that Congress should amend the statute by inserting in it the words the Court has now read into it and of such action, declared that it would give the courts "A Power approaching the arbitrary, the abuse of which might involve our whole judicial system in disaster...

...To illustrate:—Every state has a law which in substance provides that any person confined in a jail or prison by reason of conviction of some offense, who breaks therefrom, is guilty of a crime...

...The important fact is that the Court, as Justice Harlan shows, amended the statute and did so by reading into it language that was not written there by Congress...

...194, No...