Theodore Rex (76 page)

“
All I can do is hope,” Roosevelt told friends.

Of one Justice, at least, he could be sure. Oliver Wendell Holmes, Jr., had so far proved a grateful supporter of Administration policies.
During the Alaska boundary negotiations in London, Holmes had worked discreetly to soothe British sensibilities riled by the President’s official commissioners. He called at the White House more often and less formally than any other Justice, and was quite capable of teasing Roosevelt for self-righteousness: “The King, of course, can do no wrong.”

Justice William Rufus Day, Roosevelt’s second appointee to the Bench (in place of the wistful Taft), was a self-effacing little man of mild liberal tendencies. He, too, could be relied on. Justice David J. Brewer certainly could not, being an ultraconservative, patrician ideologue. The other Republicans on the Bench were less predictable. Noisy old John Marshall Harlan (“the last of the tobacco-spitting judges,” Holmes fondly called him) was a libertarian and a maverick. He had been against monopoly in the past, dissenting in
U.S. v. E. C. Knight
, but was wary of too much federal power. Justice Henry Brown was such a cold-blooded legal theorist, analyzing the statute books as if they were so many volumes of algebra, that he was capable of finding that
x
equaled
y
in the face of unanimous sentiment for
z
. Justice Joseph McKenna was an austere plodder, ill trained in law, and crotchety on issues he could not understand.

On the Democratic side, Chief Justice Melville W. Fuller and Justices Rufus Peckham and Edward D. White were conservatives of uncertain persuasion. They seemed likely to vote against the government—although Roosevelt had hopes of the affable White.

By noon, the Court Chamber in the Capitol was crowded with representatives of all three government branches. Attorney General Knox sat directly in front of the bench, exuding his usual porcelain impassivity. William Howard Taft sprawled nearby, a beached whale. Senators Spooner and Lodge conferred in low voices at the bar.
“Oyez, oyez!”
the clerk cried. Silence fell
as nine Justices filed in, silk robes rustling. The attendance of Justice Brown, who was ill, emphasized the importance of the proceedings.

Chief Justice Fuller seated himself and waited until the chamber had settled. Two dozen reporters standing at the back of the chamber craned to see which way his white head would swivel. He turned to the right, and nodded at Oliver Wendell Holmes.

Holmes proceeded to read, in
his clear, sharp voice, a decree reversal of no popular interest whatever. The audience slumped disappointedly. After about five minutes, silence fell again. Fuller gave a second nod, and Justice Harlan announced, “Case Number 277.” Instantly there was a scurrying of shoes, as messengers rushed off to alert congressmen that
Northern Securities
was “up.” Within minutes, the corridor was jammed all the way to the Rotunda.

“Let us see what are the facts disclosed by the record,” Harlan began. He showed how in 1901 “defendant Hill” and “defendant Morgan” had combined the Great Northern and Northern Pacific railroads into a holding company headquartered in New Jersey—thus making the interests of all stockholders identical. “
No scheme or device could more certainly come within the words of the [Sherman] Act … or could more effectively and certainly suppress free competition.” Harlan’s strong, measured voice continued to rise and fall, but evidently the Administration had won its case. The messengers scurried off again, this time to telegraph and telephone offices. Harlan was still reading when they got back. He did not reach his summation until twenty past one: “The judgment of the Court is that the decree below be, and hereby is, affirmed.”

Cables flashed across the country:
NORTHERN SECURITIES DECISION AFFIRMED.
It was five minutes before someone thought to telephone the President, who was just sitting down to lunch with John Hay. Roosevelt was overjoyed, but declined to comment. William Loeb told reporters that the President felt the victory belonged to Knox.

The dimensions of that victory were still unclear. Back in court, Justice Brewer struck an encouraging note as he concurred with the decision, then a discouraging one as he rejected Harlan’s opinion. But he offered another of his own, proposing a “rule of reason” that would prevent wholesale antitrust proclamations. Justices Day, Brown, and McKenna joined the majority; Fuller, Peckham, and White opposed, making the verdict so far five against three. Only one vote more was needed to make Roosevelt’s victory decisive.

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.

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.

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 closeness of the decision. Popularly, however, it was perceived as a big victory for democracy over monopoly. Nine out of ten national newspapers congratulated the President. The case both dramatized and demonstrated the latent strength of the Sherman Act. As
the New York
Evening Post
remarked, the fundamental question of
Northern Securities v. U.S
.—to what extent might combination freely proceed?—was answered: not much, without popular approval. “Surely the most far-reaching benefit of the decision is the vindication of national control.”

The New York
World
agreed, but worried about placing such control in the hands of Theodore Roosevelt. He had already broadened the use of executive power in labor mediation, in foreign policy, and in federal patronage. Now he had dissolved the world’s second-largest trust. “Imagine the Demagogue as President, armed with all the legitimate power of an office grown greater than man had dreamed was possible …! He is Everything. He is Power. He is Patronage. He is Privilege.”

The three men most affected by the decision reacted with surprising equanimity. J. P. Morgan puffed serenely on a cigar, smiled, and waggled his great head at reporters. E. H. Harriman turned defeat into victory by suing for his old Northern Pacific stock, at a huge profit. James J. Hill put on a brave public face, saying, “The three railroads are still there, earning good money.” Only in private was he critical of the President as an aspirant king, surrounded by “gilded flunkies.”

Roosevelt persuaded himself that the case had ended happily, in spite of Justice Holmes’s dissent. If he had not achieved the historic review he dreamed of, he had won a temporal accord that redressed the balance between government and free enterprise. Washington resounded with praise, and predictions of four more Rooseveltian years. “
As far as I can see,” Joseph Bucklin Bishop wrote in the
Commercial Advertiser
, “there is no need of an election.”

BY 1 APRIL
, Washington was efflorescent with cherry blossom. A million and a quarter new bulbs splotched parks and roadsides. To Roosevelt, who since Groundhog Day had been hopefully snapping twigs for signs of sap, the warming sunshine felt especially pleasant. Mrs. J. Borden Harriman, remembering him as a boy, found him boylike still, “the embodiment of spring … bubbling with life and hope.” An Administration bill to set up American government in the Panama Canal Zone was set for passage, and the nation’s economy was improving. So were his
jujitsu
skills. Indeed, he had just shown how the latter could be adapted to politics, by grabbing a pension measure right out of the hands of Congress and flipping it into an executive order of his own. Veterans now found that they were eligible for benefits at the early age of sixty-two, and their gratitude was sure to translate into a huge number of votes in November.

As always when the President was happy, his happiness touched those around him. “
He is a very sweet and natural man and a very trusting man,” William Howard Taft wrote. “…     I am growing to be very fond of him.”

Even so, Roosevelt’s bright spring was not entirely cloudless. William Randolph Hearst seemed intent on a populist campaign for the presidency. Meanwhile, Old Guard Republicans were insisting that lanky, awful Charles W. (“Icicle”) Fairbanks be nominated for Vice President. He was the senior Senator from Indiana, a tireless speaker, and Wall Street’s darling. “Who in the name of Heaven else is there?” Roosevelt asked, not expecting any answer.

A long-simmering foreign-policy crisis also threatened to embarrass him, at a time when he did not want any more accusations of “gunboat diplomacy.”
It was virtually a repeat of the Venezuelan affair of 1902–1903, transposed to the Dominican Republic. Again, an impoverished Caribbean nation could not pay its debts; again, Germany was an impatient creditor; again, the United States Navy had conducted “exercises” off Isla de Culebra, in a choreographed evocation of the Monroe Doctrine. So far, Wilhelm II had sent in no warships—only a fulsome letter to Roosevelt, unfortunately not reproducible at the Republican National Convention: