"[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.
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