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13. Great Cases and Bad Law
- University of Minnesota Press
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272 13 Great CaSeS aNd Bad laW The previous quarter century the railroad empire of James J. Hill had grown from 656 miles of track in central and western Minnesota in 1880 to 19,263 miles across sixteen states and territories, and included one of the world’s largest fleets of ocean steamships on the Great Lakes and the Pacific. Its earnings had grown from just over a half million dollars in 1880 to $33.5 million in 1904. With every leap in scope, however, came more complexity, and with every new state a tangle of separate laws, with the advance through Indian nationsinMontana,withthepushtoPugetSound,withtheincreasingcontrol of the Northern Pacific, with the purchase of the Burlington, with the tense negotiations with Harriman for his Northern Pacific stock, and now with the creation and defense of Northern Securities, the world’s second largest company in market capital. Hill was forced to spend less time in the Northwest on the ground (“where the money was spent”) with his engineers and brakemen and more time in New York where the money was spent on fees for a growing legion of lawyers to write and file briefs and petitions, argue cases, and deal with the Interstate Commerce Commission. Then came the Justice Department’s lawsuit against Northern Securities, and the lawyers—for Northern Securities, the Great Northern, the Northern Pacific, the Burlington, and J. P. Morgan—seemed to multiply exponentially. With judicial momentum against them, Hill and Morgan had to find a preeminent lawyer to argue their case before the highest court in the nation. Not since Dred Scott in 1857, perhaps, had Americans been so fascinated with a case before their highest court. Seven weeks after he lost at circuit court, Hill received a letter from Stillman’s lawyer John Sterling who suggested Hill retain John Graver Johnson. Hill did not need much persuading. Many respected judges regarded Johnson “the greatest lawyer in the English-speaking world.” GREAT CASES AND BAD LAW 273 There was hardly a major case on property rights before the U.S. Supreme Court he had not argued. He had been counsel for Standard Oil, Amalgamated Copper, the Pennsylvania Railroad, the New York Central, the National Hardware Association, and U.S. Steel. for many years Morgan had not taken a single significant step in business without consulting him. He once told Morgan he had mastered one of Morgan’s cases in fifteen minutes. Before deciding whether to proceed with a merger, a group of railroad men cabled him for counsel while he was on vacation in Norway. The response came immediately, “Merger possible. Conviction sure.” Thesonofablacksmith,educatedinPhiladelphiapublicschools,Johnson memorized Shakespeare as a boy, and as a lawyer could recite legal citations by heart. Throughout his illustrious career of a half century he kept “the freshness of an amateur.” He often undercharged clients, accepted small cases simply for the principles involved, and sometimes turned down compensation he considered excessive. He deliberately sought obscurity, never attended public dinners, gave speeches, or answered requests for his biography. His Who’s Who simply read, “Johnson, John G., corporation lawyer. Address, Land Title Bldg., Philadelphia.” He also, like Morgan, had a passion for art; his collection , which he apparently never bothered to have appraised, was considered one of the finest in private hands in the United States, brimming with works by Pesellino, Correggio, Botticelli, Crivelli, Carpaccio, Bellini, Signorelli, and Breughel. It was displayed throughout his home in Philadelphia in his quirky style, on the backs of doors, at the foot of his bed, even a few on the ceiling. Johnson had no appetite for public office, refusing offers from Garfield in 1881 and Cleveland a few years later to be nominated for the U.S. Supreme Court. He would have looked the part, though: bushy white eyebrows, white walrus mustache, thick white hair, noble chiseled features, slender of frame. There were reports he was McKinley’s first choice to be U.S. attorney general before Knox accepted. He did, however, accept Hill’s offer to argue for Northern Securities before the U.S. Supreme Court. At 12:30 p.m. on Monday, December 14, 1903, John Graver Johnson strode into the chambers of the U.S. Supreme Court on the second floor of the north wing of the U.S. Capitol. This had been the chamber of the U.S. Senate for a half century, where Calhoun, Webster, and Clay debated, where the Missouri Compromise was shaped, where Congressman Brooks of South Carolina caned...