After 1890, he notes, "Literalist" and "Rule of Reasonist" camps on the High Court took the rhetorical places of the Sherman faction and its opposition.
He announced that "competition, free and unrestricted is the general rule"(93) and that only prices fixed by competition could be deemed reasonable.(94) Justice White, writing for the four Justices in the Rule of Reasonist minority, allied himself, conversely, with the views of the defendants, the lower court judges, and Sherman's rhetorical foes in the congressional debates.(95) In short, Peritz asserts that the Trans-Missouri opinions announced the Court's division into two opposing factions committed, respectively, "to either `free competition' or `freedom of contract'."(96)
Peritz concludes that the dissenting Rule of Reasonist faction was haunted chiefly by a distinctly different general fear, the Hobbesian specter of a potential descent into anarchic industrial warfare.
THE SECOND CYCLE Peritz believes that despite the early establishment of High Court unanimity in cartel cases and continuing changes in Court membership, the Supreme Court continued to be divided into a "free competition" Literalist faction and a "freedom of contract" Rule of Reasonist faction up through 1911, not only in antitrust cases but in its jurisprudence more generally.
Peritz explains Peckham's "desertion to the Rule of Reasonist faction" on the basis of Peckham's continuing, but now differently focused, commitment to liberty.
In contrast, Peritz argues, Chief Justice White and other members of the Court's Rule of Reasonist faction fundamentally wanted to protect individual rights of liberty and property.
Miles the Rule of Reasonist faction went along with "the Court's Literalist holding that price-fixing is illegal per se"(156) because its members, in line with contemporary classical economics in general, did not distinguish between rivalry among sellers operating at the same level in a distribution chain and rivalry between a manufacturer and its retailers.
Peritz, however, explains the case instead as a sudden factional membership crisis within a still continuing context of contention between a Literalist and a Rule of Reasonist camp.
He finds, however, that two of the key original founders of that camp, Justices Peckham and Brewer, now "abandon[ed] their Literalist colleagues for the Rule of Reasonist camp[.]"(177) These apostate Literalists, however, did not immediately become the chief spokesmen for rule of reasonist perspectives.
The posited Rule of Reasonist package, on the other hand, offered forceful affirmation of the importance of private property rights, freedom of contract and freedom of association, a tempered commitment to competition as the rule of trade, and pointed concern to prevent the onset of either statism or anarchic social warfare.
Peritz associates Holmes with the Rule of Reasonist faction(181) because of his dissent from Harlan's Literalist condemnation of the combination of two major railroads through the holding company challenged in Northern Securities.
Peritz locates all the remaining Justices in the Rule of Reasonist camp, namely: Justices White, Holmes, Brewer, and Peckham, and Chief Justice Fuller.