The switch in time that saved nine

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Associate Justice Owen J. Roberts. Conventional history has characterized his vote in West Coast Hotel Co. v. Parrish as a strategic measure to save the judicial integrity and independence of the U.S. Supreme Court.

“The switch in time that saved nine” is the name given to what was perceived as the sudden jurisprudential shift by Associate Justice Owen J. Roberts of the U.S. Supreme Court in West Coast Hotel Co. v. Parrish.[1] Conventional historical accounts portrayed the Court's majority opinion as a strategic move to protect the Court's integrity and independence from President Franklin Roosevelt's court-reform bill, which would have expanded the size of the bench up to 15 justices.

The term itself is a reference to the aphorism "A stitch in time saves nine," meaning that preventive maintenance is preferable.[2]

Contents

[edit] Conventional account

Through the 1935-36 terms, Roberts had been the deciding vote in several 5-4 decisions invalidating New Deal legislation, casting his vote with the "conservative" bloc of the bench, the so-called "Four Horsemen".[3] This "conservative" wing of the bench is viewed to have been in opposition to the "liberal Three Musketeers".[4] Justice Roberts and Chief Justice Charles Evans Hughes, the remaining two justices, were the center swing votes.[5]

The "switch" came in the case West Coast Hotel Co. v. Parrish.[1] Roberts joined Chief Justice Hughes, and Justices Louis Brandeis, Benjamin N. Cardozo, and Harlan Fiske Stone in upholding a Washington State minimum wage law. The decision was handed down less than two months after President Franklin Delano Roosevelt announced his court-reform bill. Conventional history has painted Roberts's vote as a strategic, politically-motivated shift to defeat Roosevelt's proposed legislation, but the historical record lends weight to assertions that Roberts's decision happened much earlier.[6]

[edit] Historical view

Roberts had voted to grant certiorari to hear the Parrish case before the election of 1936.[7] The case, heard on December 16 and 17, 1936, specifically asked the court to reconsider its decision in Adkins v. Children's Hospital,[8] which had been the basis for striking down a New York minimum wage law in Morehead v. New York ex rel. Tipaldo[9] in the late spring of 1936.[10] In Morehead, the appellant had not challenged the Adkins precedent.[11][12] Having no "case or controversy" legs upon which to stand, Roberts deferred to the Adkins precedent and voted to strike the New York statute.[12]

Roberts, however, indicated his desire to overturn Adkins immediately after oral arguments on Dec. 17, 1936.[10] The initial conference vote on Dec. 19, 1936 was split 4-4; with this even division on the Court, the holding of the Washington Supreme Court, finding the minimum wage statute constitutional, would stand.[13] The eight voting justices anticipated Stone—absent due to illness—would be the fifth vote necessary for a majority opinion affirming the constitutionality of the minimum wage law.[13] As Chief Justice Hughes desired a clear and strong 5-4 affirmation of the Washington Supreme Court's judgment, rather than a 4-4 default affirmation, he convinced the other justices to wait until Stone's return before both deciding and announcing the case.[13]

President Roosevelt announced his court reform bill on February 5, 1937, the day of the first conference vote after Stone's February 1, 1937 return to the bench. Roosevelt later made his justifications for the bill to the public on March 9, 1937 during his 9th Fireside Chat. The Court's opinion in Parrish was not handed down until March 29, 1937, after Roosevelt's radio address. Hughes wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slighest effect on our [the court's] decision," but due to the delayed announcement of the decision, the Court was characterized as retreating under fire.[6]

The "switch", together with the retirement of Justice Willis Van Devanter at the end of the 1937 spring term, is often viewed as having contributed to the demise of Roosevelt's bill by undermining the necessity of its passage. The failure of the court-reform bill preserved the size of the U.S. Supreme Court at nine justices, as it had been since 1869, and so remains to this day.

[edit] References

[edit] Sources

  • Cushman, Barry (1998). Rethinking the New Deal Court: The Structure of a Constitutional Revolution. New York, NY: Oxford University Press. ISBN 9780195115321. 
  • Leuchtenburg, William E. (1995). The Supreme Court Reborn: The Constitutional Revolution in the Age of Roosevelt. New York, NY: Oxford University Press. ISBN 9780195111316. 
  • McKenna, Marian C. (2002). Franklin Roosevelt and the Great Constitutional War: The Court-packing Crisis of 1937. New York, NY: Fordham University Press. ISBN 9780823221547. 
  • White, G. Edward (2000). The Constitution and the New Deal. Cambridge, MA: Harvard University Press. ISBN 9780674008311. 

[edit] Notes

  1. ^ a b 300 U.S. 379 (1937)
  2. ^ The New Dictionary of Cultural Literacy, Third Edition
  3. ^ Leuchtenburg, at 132-133.
  4. ^ White, at 81.
  5. ^ Leuchtenburg, at 133.
  6. ^ a b McKenna, at 419.
  7. ^ McKenna, at 412-13.
  8. ^ 261 U.S. 525 (1923)
  9. ^ 298 U.S. 587 (1936)
  10. ^ a b McKenna, at 413.
  11. ^ Morehead v. New York ex rel. Tipaldo, 298 U.S. 587, 604-05 (1936). “The petition for the writ sought review upon the ground that this case is distinguishable from that one [Adkins]. No application has been made for reconsideration of the constitutional question there decided. ... He is not entitled, and does not ask, to be heard upon the question whether the Adkins case should be overruled. He maintains that it [the New York minimum wage law] may be distinguished on the ground that the statutes are vitally dissimilar.”
  12. ^ a b Cushman, at 92–104.
  13. ^ a b c McKenna, at 414.
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