While serving on the bench, Stevens wrote some of the court’s most important antitrust rulings, including National Collegiate Athletic Association , Illinois Tool , Summit Health and Superior Court Trial Lawyers Association . He wrote thoughtful dissents in many other antitrust cases. Although his career on the bench has been reviewed and analyzed by many, not much attention has been focused on his professional life prior to becoming a Supreme Court justice. Some may be surprised to learn that before ascending to the bench, Stevens had a long and successful career in private practice as an antitrust litigator.
Stevens began his practice of antitrust law in Chicago in 1949 at the law firm of Poppenhusen Johnston Thompson & Raymond — the predecessor firm of Jenner & Block. He practiced there for two years before moving to Washington, D.C., to serve as associate counsel to the subcommittee on the study of monopoly power of the Judiciary Committee of the U.S. House of Representatives.
When he returned to Chicago in 1952, Stevens, along with several other young lawyers he worked with at Poppenhusen, started their own firm, Rothschild Hart Stevens & Meyers. The firm quickly grew into a medium-sized firm with a successful specialized antitrust practice, in large part because of Stevens’ trial skills and stellar reputation. Stevens practiced with the firm from the year it was established, until he joined the 7th U.S. Circuit Court of Appeals in 1970.
During his career as a trial lawyer, Stevens appeared as counsel of record in more than a dozen reported trial and appellate decisions involving antitrust issues, as well as numerous matters for which there is no reported decision. He represented both defendants and plaintiffs. The cases he handled covered a wide range of issues within the antitrust field, including many cutting edge issues that would later reach the Supreme Court.
In one of the earliest published decisions in which he was involved, he served as counsel for defendants in a case that was the center of what has become known as the “Great American Streetcar Scandal.” The centerpiece of the “scandal” was a conspiracy that is credited with dismantling the use of streetcars throughout America and replacing their use with buses.
The matter at the center of the controversy was the 1951 case, United States v. National City Lines Inc . In that case, nine corporations and seven individuals were indicted on two counts under the Sherman Act. The charges were: (1) conspiracy to acquire control of a number of transit companies to form a transportation monopoly, and (2) conspiring to monopolize sales of buses and supplies to companies owned by the City Lines. The defendants included the corporate titans of the day: Firestone, Standard Oil of California, Phillips, General Motors, Federal Engineering, and Mack and their subsidiary companies: National City Lines, Pacific City Lines, and American City Lines.
At trial, the defendants were acquitted on the first count of conspiring to monopolize transportation services, but were found guilty on the second count of conspiring to monopolize the provision of parts and supplies to their subsidiary companies. The companies were each fined $5,000, and the individuals were each fined one dollar. The defendants appealed the convictions, but all were sustained by the 7th Circuit.
During that same year, Stevens also represented Loew’s in Milwaukee Towne Corporation v. Loew’s , where a group of independent movie theaters accused the defendants of, among other things, conspiring to monopolize the “exhibition of motion pictures and the operation of motion pictures theaters in the City of Milwaukee.”
Specifically, the defendants were charged with maintaining a system of releasing movies, whereby the theaters that were owned by the defendants were given priority over independent theaters. The effect of this system was that the defendants’ theaters had the ability to show certain movies during an earlier first run, whereas the independent theaters could only feature the movies during a later and less competitive second run.
After a six-week trial and extensive oral argument, the defendants were found guilty of conspiracy in violation of antitrust laws. On appeal, the 7th Circuit affirmed the lower courts ruling regarding the conspiracy claims, but held that the evidence failed to support the trial court’s findings regarding some of the damages claims. Additionally, the 7th Circuit held that the attorneys’ award was excessive and ordered that the amount be reduced.
Several years later, in Mackey v. Sears, Roebuck & Co. , Stevens represented a plaintiff who alleged that for seven years Sears had directed a course of predatory conduct successively at three of plaintiff’s business ventures. These predatory actions were composed of: (1) localized price cutting which destroyed plaintiff’s nursery lamp business; (2) the use of threatened boycott, which induced the breach of a contract that plaintiff entered into with another party; and (3) a destruction by Sears of the market for a new type of tool by unfair competition.
Stevens, representing the plaintiffs, alleged that these acts violated both the Sherman Act and the Robinson-Patman Act. Additionally, the plaintiffs asserted related common law claims for unfair competition and inducing breach of contract.
The Sherman Act and Robinson-Patman Act claims were dismissed at the trial court level. The plaintiffs appealed, but the 7th Circuit affirmed, holding that there was no Sherman Act violation under Section 1 because there was no contract in restraint of trade and because Sears was not engaged in a conspiracy — given that Sears cannot conspire with itself. Interestingly, years later, Stevens dissented in the seminal Copperweld case by the Supreme Court that narrowed the definition of conspirators. Additionally, the 7th Circuit held in Mackey that there was no violation under the Sherman Act because, while the complaint alleged that Sears had the intent to monopolize the nursery lamp business, there were no allegations that there was a dangerous probability that Sears had the power to actually do so.
In 1956, Stevens represented another plaintiff in Parmalee Transportation Co. v. Keeshin . At issue in that case was the loss by Chicago’s Parmalee Transportation Co. of its 102-year-old franchise to transport passengers and baggage between the city’s eight scattered railroad stations. Parmalee alleged that the defendants had engaged in a conspiracy to eliminate all competition for contracts with the Chicago railroads for the rendition of these transfer services.
Among the defendants was Hugh W. Cross, the chairman of the Interstate Commerce Commission. Because of Cross’ position at the ICC and the allegations that he used his position for improper means, this case garnered substantial media attention.
Ultimately, the 7th Circuit held that the railroads’ decision to award an exclusive contract to the defendant’s newly organized company rather than to Parmalee for transport services did not violate antitrust laws. Notwithstanding that the victory of defendant’s company may have been made easier by Cross’ wrongful conduct, the court determined that because the two companies had strenuously competed for contract, there was no elimination of competition.
In 1963, Stevens represented one of 21 manufacturers of electrical equipment sued by a class of municipalities for allegedly violating provisions of the Sherman Act in the case City of Chicago v. Allen Bradley Co. There, defendants allegedly conspired “to fix sealed bids on jobs for municipalities, and thus sought to defeat free and open competition which is perhaps the major objective of sealed bids.”
Also during that year, in Commonwealth Edison Co. v. Allis-Chalmers Manufacturing Co. , Stevens represented one of many defendants sued by several electric public utilities for treble damages under the Clayton Act for conspiratorial price fixing resulting in higher non-competitive prices in the sale of electric equipment by the defendants.
Finally, in United States v. Borden Co. , Stevens represented a defendant milk distributor in the only case of his to reach the Supreme Court. There, the United States brought a suit against two distributors of milk products for an injunction to restrain the sales of milk at discriminatory prices. The U.S. District Court for the Northern District of Illinois dismissed the suit on the ground that the discriminatory prices were legalized by the cost justification provision of the Clayton Act. The United States appealed.
The Supreme Court held that price discrimination between chain stores and independent stores was not justified under the cost justification provision because the defendants’ basis for classifying the two groups was too broad. The Supreme Court stated that a seller may group customers for pricing purposes, but each group should be “composed of members of such selfsameness as to make the averaging of the cost of dealing with the group a valid and reasonable indicium of the cost of dealing with any specific group member.”
Over the past 35 years, Stevens has played a major role in the jurisprudence of antitrust both as a lawyer, a circuit judge and a justice of the Supreme Court. Over the course of his lifetime, Stevens articulated a unique voice, whether in the majority or dissent, that has been vital to shaping antitrust law in the United States. Stevens did so with thoughtfulness, measured balance, sound temperament and the overriding desire to do the right thing. His presence on the bench will be truly missed, but not forgotten. •