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The Commoner.
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WJIJ.IAH J.VJIYAK
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XllCIIAlU) L. JIwcamt.
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THE COMMONER, Lincoln, Nob.
"PACKING THE SUPREME COURT"
Foxcraft, Me., Sept. 27, 1911. Editor The
Commoner: Replying to ths article in The
Commoner for June 23, entitled, "Packing
tho Supreme Court" A Reminder of 1908:
I sincerely wish that every citizen of
this country could (or would) "read, mark,
learn and Inwardly digest" the contents of that
article. Every thinking man and woman fully
realizes that tho decision recently handed down
hy the supreme court possesses unusual signi
ficance, and that on the whole it is a dangerous
precedent; hut what of those who do not think
clearly of such matters? To them the decision
is good; it fully serves its purpose; it relievos
the common people from the oppression of tho
great trusts. It is for such credulous people as
these that tho articles in Tho Commoner seem
to ho to he especially written, and to them these
articles should ho useful and suggestive. The
man muBt ho wilfully hlind or hopelessly pre
judiced who does not get from a careful con
sideration of the discussions in The Commoner
the convicton that he is heing deluded right and
left hy the regular daily papers; that the news
in them is padded, pruned, and otherwise ren
dered "safe and sane" before it ever reaches
him; that conditions must be decidedly wrong
when, in spite of the fact that ho is paying ever
and ever higher prices for everything he eats,
drinks and wears, he is calmly assured by these
same papers that everything is for the best, and
that to make any change whatever is to take a
step downwards.
Now, the thing that the average man fails
utterly to see is that the supreme court of theso
. United States haB come to be tho one great bul
wark behind which tho guns of the interests are
safely concealed until such time as the owners
thereof desire to take from tho people yet an
other of those rights which the people had sup
posed wore forever granted to them by the con
stitution. The guns are then flaunted defiantly
in their face, and they are bidden to stand and
deliver, while the judges, who are not nomi
nally but actually the defenders of the people
againBt corporate greed, stand silently by, or
at best bid the robbers to be "reasonable" in
their demands! As "if, forsooth, robbers were
ever known to be reasonable! Perhaps theso
Judges who stand by and see such things going
on. are innocent, and believe that they have done
The Commoner.
their full duty by tho people, but It is hard in
deed for those who stand at a distance and
observe tho condition of affairs to believe that
such is tho caso. If so, then our supremo court
has failed utterly of its purpose, and should bo
abolished. This we do not for a moment be
lieve, and it behooves us as citizens of this
commonwealth to educate ourselves to the pos
sibilities of tho ballot box to eradicate these
evils, and to do all in our power to expose these
attempts of tho judges to betray the people. He
who roads carefully the signs of the times can
not help getting the impression that the courts
of today havo a different attitude toward their
office and toward the people than the judges of
a generation ago. Justice Harlan fairly typifies
the justice of that period a man to whom his
office is a sacred trust, to be administered In the
sole interest of those by whom ho was invested
with it. If the citizens of this country realized
as fully as they should the right relations be
tween judges and people, there would bo a
speedy readjustment of the relations which
now exist, and wrong which originates in
our courts would be far less prevalent. This,
however, can not be as long as it is possible for
the court to be packed in the interest of the
trusts, with no hope of relief save the death of
one of the judges, who, perhaps, will be suc
ceeded by one worse than he.
Mr. Bryan is doing a great work in his efforts
to put before the people the facts behind these
denials of justice to the citizens of this country.
But ho is greatly weakened in these same at
tempts by tho indifference of so many. If he
is to be tho Moses to lead us out of our bondage,
ho assuredly deserves and should freely receive
the ungrudging assistance of as many as can find,
it in their power to render him the help which
must mean so much to him. He has, I believe,
sounded the warning which shall finally bring
victory In his Insistent demand for the recall' of
judges. Only the fear of reprimand from the
ones who are alone able to administer it will
effectually crush out this injustice and corrup
tion, and make our courts, and so our legisla
tures, which to a great extent guide their con
duct by considering the possible or probable
action of the courts toward a piece of legisla
tion, truly representative of the people.
We wish Mr. Bryan every success in his work,
and many of us, and an Increasing number, I
trust, and believe, pledge him our support In
his endeavors. With faith In the future, I am,
yours very truly, CHAS. E. KENNEDY.
"THE RULE OF REASON"
Writing in the Indianapolis News, William
A. Ketcham, one of tho great lawyers of In
diana, a stalwart republican, and recently at
torney general for that state, makes this in
teresting comment on "The Rule of Reason:"
The carefully considered elaborate opinion of
the chief justice In the Standard Oil case, con
curred in by seven of the associate justices to
which Justice Harlan filed a vigorous, aggres
sive, dissenting opinion, deserves considerably
more than a passing notice, illustrating, as it
does, how in the course of fifteen years, that
which was recognized as the proper construc
tion of the anti-trust act of 1890, has been
repudiated.
1. In 1892 tho United States filed a bill m
equity against the Trans-Missouri Freight as
sociation et al., asking, among other things, an
injunction against the carrying out of an agree
ment alleged to be in violation of tho Sherman
act as a conspiracy in restraint of trade. The
bill was dismissed, 53 Fed. 440, from which an
appeal was taken to the circuit court of appeals.
2. Over a vigorous dissenting opinion this
decree was affirmed, the court holding that the
act of 1890 must be construed In connection
with the common law as prohibiting only contracts-
that were in unreasonable restraint of
trade and commerce, 58 Fed. 68.
3. From this an appeal was taken to the
supreme court of the United States, whero tho
judgment was reversed In 1896, tho court hold
ing In definite and specific terms that the act yof
1890 prohibited all contracts in restraint of
trade and denying the contention that contracts
that woro reasonably in restraint of trade were
pormissiblo. Eminent counsel, including Lloyd
W. Bowers, John F. Dillon, James C. Carter and
E. J. Phelps appeared for the appellees, thus
insuring a full and complete presentation of the
questions Involved. Tho opinion was pro
nounced by Justice Peckham and concurred in
by tho chief justice and Associates Justices Har
lan, Brewer and Brown, all of whom havo slnco
died except Justice Brown who has since retired
.VOLUME 11, NUMBER 37,
from the bench, and Justice Harlan. Justice
White dissented in a vigorous opinion, in which
the doctrine of "reason" and "reasonableness"
wore brought prominently to the front. In this
dissent Justice Shiras, who retired in 1903
Field, who retired in 1897, and Gray, who died
in 1902, concurred. A vigorous petition for
rehearing was filed in this case, which was
however, denied. (See 171, U. S., pp. 573-4.)
4. In 1896, the United States filed a bill in
equity in the southern district of New York
against the Joint Traffic association to enjoin
violations of the interstate commerce law, which
was dismissed, 76 Fed. 895, and on appeal this
decree was affirmed, 89 Fed. 1020, from which
an appeal was taken to the supreme court.
5. Upon this appeal, 171 U. S. 505, the prin
ciples laid down in the Trans-Missouri Freight
association case were adhered to and reaffirmed,
October 24, 1898, the chief justice and associate
justices, Harlan, Brewer, Brown and Peckham,
uniting in the opinion, while Associate Justices
Gray and Shiras concurred in the dissenting
opinion of Justice White who again in his dissent
ing opinion reiterated his doctrine of "reason"
and "reasonableness" with respect to con
tracts in restraint of trade, Justice McKenna not
participating. The government was represented
by Solicitor-General Richards, the attorney-general,
Mr. Griggs, not participating, while tho
appellees were represented by such eminent
counsel as Mr. Carter, Mr. Ledyard, Mr. Phelps
and George F. Edmunds, so that it could not bo
said that the railroads were not amply repre
sented. 6. After these decisions were rendered an
effort was made in congress to amend the act
so as to embody in it the doctrine of "reason
ableness," but upon its being pointed out that
this might have the effect of rendering nuga
tory the criminal parts of the statute as heing
indefinite and uncertain, the effort to amend tho
act failed and it stood as it had been construed
by the supreme court in the Trans-Missouri and
Joint Traffic association cases and has ever since
so remained unamended and unmodified.
7. In Northern Securities company vs. United
States, 193 U S. 197, Justice White again dis
sented, the chief justice and Justice Peckham
(who had united in the Trans-Missouri and tho
Joint Traffic association decisions) and Justice
Holmes, who had not been on the bench when
those cases were decided, united In the dissent.
8. From this time forward it was the ac
cepted doctrine of the supreme court, of tho
lower courts of the United States and of con
gress, by acquiescence and inaction when tho
opportunity was afforded it for fifteen years to
amend the acts of 1887 and 1890 if it conceived
the construction given to them by the supremo
court was an erroneous one, or not in accord
with the intention and purpose of congress.
9. In the meantime the Standard Oil and
tobacco trust cases found their way to the su
preme court on decrees adjudging them to bo
in violation of the anti-trust act and also mean
while the personnel of the supreme court had
radically changed. By death and retirement,
seven of the nine judges who participated in
the Trans-Missouri decision; six of the eight who
participated in the Joint Traffic association de
cision and four of the nine who took part in
the Northern Securities decision had disappeared
from the bench, and in their places were Justice
McKenna, who went on the bench in 1898. Mr.
Holmes, in 1902;. Mr. Day, in 1903; Mr. Lur
ton, in 1909; Mr. Hughes, in 1910; Mr. Lamar
and Mr. Van Devanter, in 1911, and Associate
Justice White had been promoted and was the
chief justice and so it was practically a new
bench, so far as personnel was concerned, that
heard the arguments and the rearguments In
the Standard Oil and tobacco trust cases.
The law except as amended by the law mak
ing power or In rare and occasional Instances
when courts aro constrained to overrule previous
decisions, Is or should be tho same, no matter
who might occupy the bench for the time being.
If the construction of a statute formally settled
by repeated decisions, solemnly made upon full
consideration, fully acquiesced in by the law
making power for a period of fifteen years with
full knowledge of such construction, given to it
by the highest court of the land or tho world
is to be overturned because forsooth, a capable
and gifted associate justice has become the chief
justice and has found as his associates now raw
material upon which' ho can with effect work,
what Is to become of the rule of "stare decisis
or the certainty of the law?
Dissenting opinions never constitute the law;
"on the contrary, quite tho reverse," but they
not . inferquently emphasize and particularize
what the decision really means. Mr. Justice
-ir
,it
