Oliver Wendell Holmes by Stephen Budiansky

Author:Stephen Budiansky
Language: eng
Format: epub
Publisher: W. W. Norton & Company
Published: 2019-03-16T04:00:00+00:00

It was far from Holmes’s clearest or most-well-written opinion, either. But it reflected, fundamentally, his view that while a conspiracy by two competitors to keep a third company from entering the same market might be an illegal restraint of trade, bigness in and of itself was no crime. Economies of scale and the greater efficiencies of concentrated control were an irresistible force driving mergers and combinations. As he remarked later to many of his friends, he thought the Sherman Act “an imbecile statute,” which “aims at making everyone fight but forbidding anyone to be victorious.”33 He thought people who say “damn Rockefeller” were ignoring the fact that Rockefeller and his fellow monopolists had merely recognized ineluctable economic forces better than others. They might as well say “damn God, or the order of the universe.” He told President Taft a few years later, “If they could make a case for putting Rockefeller in prison I should do my part, but if they left it to me I should put up a bronze statue of him.”34

Holmes’s dissent in Northern Securities did not sit well with the White House. A story that first appeared in print thirty years later had it that on learning of Holmes’s failure to back up the administration, the president scornfully declared that he “could carve out of a banana a Justice with more backbone than that.” That may or may not have actually happened. There were also newspaper stories at the time that a furious Roosevelt had summoned Holmes for a personal dressing-down, which definitely did not happen.35

But Holmes “heard rumors of wrath” at the White House—no doubt from Henry Adams, who wrote an acquaintance at the time, “Poor Wendell Holmes is the immediate victim. . . . Theodore went wild about it, and openly denounced Holmes in the most forcible terms of his sputtering vocabulary.”36 Holmes himself had been anguished beforehand over how the president would take his dissent. “The case was not without its painful side as it involved going against one’s natural crowd,” he told his lawyer, John Palfrey. “If however his seeming personal regard for us was based on the idea that he had a tool,” he wrote Mrs. Curtis a few days after the decision was announced, “the sooner it is ended the better—we shall see.”37

Roosevelt made a point of maintaining an outward show of cordial relations, however, inviting Justice and Mrs. Holmes just a few weeks later with the Lodges to an intimate dinner and musical recital at the White House. He and the president continued to have “charming” talks, and Holmes was somewhat amused at himself by the way he always fell under Roosevelt’s charismatic spell whenever they were together, as much as he now saw through it. “Of course I went off with the glamour that he always leaves,” he wrote Baroness Moncheur after one such session at the White House.38

Years later Holmes told Pollock,

It broke up our incipient friendship, however, as he looked on my dissent to the Northern

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