The Corporation’s victory in the Court of Last Resort was a rather narrow one, four of the judges agreeing on dismissal of the Government’s appeal, while three favored the Government’s side. Two members of the Court did not sit in the case and took no part in the decision, Justice McReynolds, who had been Attorney-General of the United States during the progress of the litigation, and Justice Louis Brandeis.
The judges voting for affirmance of the judgment of the lower court dismissing the bill were Justice McKenna, who delivered the opinion, and Justices Holmes, Van Deventer, and Chief Justice White, while the minority opinion was written by Justice Day and concurred in by Justices Pitney and Clarke.
On the question of the close division of the Court it might be pointed out that, of eleven (excluding Justices McReynolds and Brandeis who took no part in the matter) judges who sat on the case, four in the District Court and seven in the Supreme Court, a total of eight were in favor of the Corporation.
Compared to the opinion of the lower court that of the Supreme Court, considered either as a literary effort or a comprehensive summing up of the issues involved, is somewhat disappointing. A few pertinent facts were emphasized by Judge McKenna, however, and these are well worth alluding to.
Referring to unanimous testimony of both competitors and customers that the Corporation’s trade methods had been not only legal but essentially fair and, if the word may be used, sportsmanlike, as contrasted with the Government’s claim that competitors were oppressed, Justice McKenna said:
“The situation is indeed singular, and we may wonder at it, wonder that the despotism of the Corporation, so baneful to the world in the representation of the Government, did not produce protesting victims.”
So obviously beneficial to American industry had been the Corporation’s activities in the export trade that even the Government’s attorneys did not attack it on this score, in fact, they suggested that the export organization should be preserved. On this point the Supreme Court majority opinion said:
We do not see how the Steel Corporation can be such a beneficial instrumentality in the trade of the world and its beneficence preserved, and yet be such an evil instrumentality in the trade of the United States that it must be destroyed.