The capital essential of justice is that, under like conditions, all should fare alike. The magistrate should be no respecter of persons. The vice of our system of judicial dispensation is that it discriminates among suitors in proportion to their power of resistance. This is so because, under adequate pressure, our courts yield along the path of least resistance. I should not suppose that any man could calmly turn over the pages of the recent volumes of the reports of the Supreme Court of the United States and not rise from the perusal convinced that the rich and the poor, the strong and the weak, do not receive a common measure of justice before that judgment seat. Disregarding the discrimination which is always apparent against those who are unpopular, or who suffer under special opprobrium, as do liquor dealers, owners of lotteries, and the like,30 I will take, nearly at random, a couple of examples of rate regulation, where tenderness has been shown property in something approaching to a mathematical ratio to the amount involved.
In April, 1894, a record was produced before the Supreme Court which showed that the State of North Dakota had in 1891 established rates for elevating and storing grain, which rates the defendant, named Brass, who owned a small elevator, alleged to be, to him in particular, utterly ruinous, and to be in general unreasonable. He averred that he used his elevator for the storage of his own grain, that it cost about $3000, that he had no monopoly, as there were many hundred such elevators in the state, and, as land fit for the purpose of building elevators was plenty and cheap, that any man could build an elevator in the town in which he lived, as well as he; that the rates he charged were reasonable, and that, were he compelled to receive grain generally at the rates fixed by the statute, he could not store his own grain. All these facts were admitted by demurrer, and Brass contended that if any man's property were ever to be held to be appropriated by the public without compensation, and under no form of law at all save a predatory statute, it should be his; but the Supreme Court voted the Dakota statute to be a reasonable exercise of the Police Power,31 and dismissed Brass to his fate.
The converse case is a very famous one known as Smyth v. Ames,32 decided four years later, in 1898. In that case it appeared that the State of Nebraska had, in 1893, reduced freight rates within the state about twenty-nine per cent, in order to bring them into some sort of relation to the rates charged in the adjoining State of Iowa, which were calculated to be forty per cent lower than the Nebraska rates. Several of the most opulent and powerful corporations of the Union were affected by this law, among others the exceedingly prosperous and influential Chicago, Burlington & Quincy Railway. No one pretended that, were the law to be enforced, the total revenues of the Burlington would be seriously impaired, nor was it even clear that, were the estimate of reduction, revenue, and cost confined altogether to the commerce carried on within the limits of the State of Nebraska, leaving interstate commerce out of consideration, a loss would be suffered during the following year. Trade might increase with cheaper rates, or economies might be made by the company, or both causes and many others of increased earnings might combine. Corporation counsel, however, argued that, were the principle of the statute admitted, and should all the states through which the line passed do the like, ultimately a point might be reached at which the railway would be unable to maintain, even approximately, its dividend of eight per cent, and that the creation of such a possibility was conceding the power of confiscation, and, therefore, an unreasonable exercise of the Police Power, by the State of Nebraska. With this argument the Supreme Court concurred. They held the Nebraska statute to be unreasonable. Very possibly it may have been unsound legislation, yet it is noteworthy that within three years after this decision Mr. Hill bought the Chicago, Burlington & Quincy, at the rate of $200 for every share of stock of the par value of $100, thus fixing forever, on the community tributary to the road, the burden of paying a revenue on just double the value of all the stock which it had been found necessary to issue to build the highway. Even at this price Mr. Hill is supposed to have made a brilliant bargain.
This brings me to the heart of my theorem. Ever since Hamilton's time, it has been assumed as axiomatic, by conservative Americans, that courts whose function is to expound a written constitution can and do act as a "barrier to the encroachments and oppressions of the representative body."33 I apprehend that courts can perform no such office and that in assuming attributes beyond the limitations of their being they, as history has abundantly proved, not only fail in their object, but shake the foundations of authority, and immolate themselves. Hitherto I have confined myself to adducing historical evidence to prove that American courts have, as a whole, been gifted with so little political sagacity that their interference with legislation, on behalf of particular suitors, has, in the end, been a danger rather than a protection to those suitors, because of the animosity which it has engendered. I shall now go further. For the sake of argument I am willing to admit that the courts, in the exercise of the dispensing prerogative, called the Police Power, have always acted wisely, so much so that every such decree which they have issued may be triumphantly defended upon economic, moral, or social grounds. Yet, assuming this to be true, though I think I have shown it to be untrue, the assumption only strengthens my contention, that our courts have ceased to be true courts, and are converted into legislative chambers, thereby promising shortly to become, if they are not already, a menace to order. I take it to be clear that the function of a legislature is to embody the will of the dominant social force, for the time being, in a political policy explained by statutes, and when that policy has reached a certain stage of development, to cause it to be digested, together with the judicial decisions relevant to it, in a code. This process of correlation is the highest triumph of the jurist, and it was by their easy supremacy in this field of thought, that Roman lawyers chiefly showed their preeminence as compared with modern lawyers. Still, while admitting this superiority, it is probably true that the Romans owed much of their success in codification to the greater permanence of the Roman legislative tenure of office, and, therefore, stability of policy,–phenomena which were both probably effects of a slower social movement among the ancients. The Romans, therefore, had less need than we of a permanent judiciary to counteract the disintegrating tendency of redundant legislation; a fortiori, of course, they had still less to isolate the judiciary from political onslaughts which might cause justice to become a series of exceptions to general principles, rather than a code of unvarying rules.
It is precisely because they are, and are intended to be, arenas of political combat, that legislatures cannot be trustworthy courts, and it was because this fact was notorious that the founders of this government tried to separate the legislative from the judicial function, and to make this separation the foundation of the new republic. They failed, as I conceive, not because they made their legislatures courts, but because, under the system they devised, their courts have become legislatures. A disease, perhaps, the more insidious of the two. Insidious because it undermines, order, while legislative murder and confiscation induce reaction.
If a legislative chamber would act as a court, the first necessity is to eliminate its legislative character. For example, the House of Lords in England has long discharged the duties of a tribunal of last resort for the empire, and with general approbation, but only because, when sitting as a court, the law lords sit alone. Politicians and political influences are excluded. Where political influences enter disaster follows. Hence the infamous renown of political decisions in legal controversies, such as bills of attainder and ex post facto laws, or special legislation to satisfy claims which could not be defended before legitimate courts, or the scandals always attending the trial of election petitions. The object of true courts is to shield the public from these and kindred abuses.
In primitive communities courts are erected to defend the weak against the strong, by correlating local customs in such wise that some general principle can be deduced which shall protect the civil rights of those who cannot protect themselves, against the arbitrary exactions of powerful neighbors. In no community can every person have equal civil rights. That is impossible. Civil rights must vary according to status. But such rights as any person may have, those the courts are bound to guard indifferently. If the courts do not perform this, their first and most sacred duty, I apprehend that order cannot be permanently maintained, for this is equality before the law; and equality before the law is the cornerstone of order in every modern state.
I conceive that the lawyers of the age of Washington were the ablest that America has ever produced. No men ever understood the principle of equality before the law more thoroughly than they, and after the establishment of this government a long series of great and upright magistrates strove, as I have shown, to carry this principle into effect. Jay and Marshall, Story and Bradley, and many, many more, struggled, protested, and failed. Failed, as I believe, through no fault of their own, but because fortune had placed them in a position untenable for the judge. When plunged in the vortex of politics, courts must waver as do legislatures, and nothing is to me more painful than to watch the process of deterioration by which our judges lose the instinct which should warn them to shun legislation as a breach of trust, and to cleave to those general principles which permit of no exceptions. To illustrate my meaning I shall refer to but one litigation, but that one is so extraordinary that I must deal with it in detail.
In 1890 the dread of the enhancement of prices by monopoly, as the Supreme Court itself has explained, caused Congress to pass the famous Sherman Act, which prohibited indiscriminately all monopolies or restraints of trade. Presently the government brought a bill to dissolve an obnoxious railway pool, called the Trans-Missouri Freight Association, and in 1896 the case came up for adjudication. I have nothing to say touching the policy involved. I am only concerned with a series of phenomena, developed through several years, as effects of pressure acting upon a judiciary, exposed as the judiciary, under our system, is exposed.
The Trans-Missouri Case was argued on December 8, 1896, very elaborately and by the most eminent counsel. After long consideration, and profound reflection, Mr. Justice Peckham, speaking for the majority of the tribunal, laid down a general principle in conformity to the legislative will, precisely as Marshall had laid down a general principle in the Dartmouth College Case, or Story in the Charles River Bridge Case, or Waite in Munn v. Illinois, or Bradley in the Minnesota Rate Case. Then the process of agitation immediately began. In the words of Mr. Justice Harlan, fifteen years later: "But those who were in combinations that were illegal did not despair. They at once set up the baseless claim that the decision of 1896 disturbed the 'business interests of the country,' and let it be known that they would never be content until the rule was established that would permit interstate commerce to be subjected to reasonable restraints."34
Other great causes, involving the same issue, were tried, the question was repeatedly reargued, but the Supreme Court tenaciously adhered to its general principle, that, under the Sherman Act, all restraints of trade, or monopolies, were unlawful, and, therefore, the Court had but two matters before it, first to define a restraint of trade or a monopoly, second to determine whether the particular combination complained of fell within that definition. No discretion was permitted. Judicial duty ended there.
The Court being found to be inflexible, recourse was had to Congress, and a bill in the form of an amendment to the Sherman Act was brought into the Senate authorizing, in substance, those who felt unsafe under the law, to apply to certain government officials, to be permitted to produce evidence of the reasonable methods they employed, and, if the evidence were satisfactory, to receive, what was tantamount to, an indulgence. The subject thus reopened, the Senate Committee on the Judiciary went into the whole question of monopoly anew, and in 1909 Senator Nelson presented an exhaustive report against the proposed relaxation. Thereupon the Senate indefinitely postponed further consideration of the amendment. The chief reasons given by Senator Nelson were summed up in a single sentence: "The defence of reasonable restraint would be made in every case and there would be as many different rules of reasonableness as cases, courts, and juries.... To amend the anti-trust act, as suggested by this bill, would be to entirely emasculate it, and for all practical purposes render it nugatory as a remedial statute.... The act as it exists is clear, comprehensive, certain and highly remedial. It practically covers the field of federal jurisdiction, and is in every respect a model law. To destroy or undermine it at the present juncture, … would be a calamity.
"In view of the foregoing, your committee recommend the indefinite postponement of the bill."35
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.
Then followed the Dred Scott Case, the Civil War, and the attack on legislative authority in Hepburn v. Griswold. Straightway the Court received an admonition which it remembered for a generation. Somewhat forgetful of this, on May 15, 1911, Chief Justice White gave his opinion in the Standard Oil Case, which followed hard upon a number of state decisions intended to override legislation upon several burning social issues. Forthwith, in 1912, the proposition to submit all decisions involving a question of constitutional law to a popular vote became an issue in a presidential election. Only one step farther could be taken, and that we see being taken all about us. Experience has shown, in New York and elsewhere, that an election, even for a somewhat short term, does not bring the judge so immediately under popular control that decisions objectionable to the majority may not be made. Hence the recall. The degradation of the judicial function can, in theory at least, go no farther. Thus the state courts may be said already to be prostrate, or likely shortly to become prostrate. The United States courts alone remain, and, should there be a struggle between them and Congress, the result can hardly be doubted. An event has recently occurred abroad which we may do well to ponder.
Among European nations England has long represented intelligent conservatism, and at the heart of her conservatism lay the House of Lords. Through many centuries; and under many vicissitudes this ancient chamber had performed functions of the highest moment, until of late it had come to occupy a position not dissimilar to that which the Supreme Court of the United States yet holds. On one side it was the highest legal tribunal of the Empire, on the other it was a non-representative assembly, seldom indeed originating important legislation, but enjoying an absolute veto on legislation sent it from the Commons. One day in a moment of heated controversy the Lords vetoed a bill on which the Commons had determined. A dissolution followed and the House of Lords, as a political power, faded into a shadow; yet, notwithstanding this, its preeminence as a court has remained intact. Were a similar clash to occur in America no such result could be anticipated. Supposing a President, supported by a congressional majority, were to formulate some policy no more subversive than that which has been formulated by the present British Cabinet, and this policy were to be resisted, as it surely would be, by potent financial interests, the conflicting forces would converge upon the Supreme Court. The courts are always believed to tend toward conservatism, therefore they are generally supported by the conservative interest, both here and elsewhere. In this case a dilemma would be presented. Either the judges would seek to give expression to "preponderant" popular opinion, or they would legislate. In the one event they would be worthless as a restraining influence. In the other, I apprehend, a blow would fall similar to the blow which fell upon the House of Lords, only it would cut deeper. Shearing the House of Lords of political power did not dislocate the administration of English justice, because the law lords are exclusively judges. They never legislate. Therefore no one denounced them. Not even the wildest radical demanded that their tenure should be made elective, much less that they should be subjected to the recall. With us an entirely different problem would be presented for solution. A tribunal, nominally judicial, would throw itself across the path of the national movement. It would undertake to correct a disturbance of the social equilibrium. But what a shifting of the social equilibrium means, and what follows upon tampering with it, is a subject which demands a chapter by itself.