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.