The Switch in Time that Saved Nine?

In 1937, President Roosevelt proposed his notorious “court-packing plan.” It altered the ideological composition of the Supreme Court and singlehandedly changed the course of a nation. What was “the switch in time that saved nine?”

U.S. Supreme Court, 1932 (Five years before the Switch in Time that Saved Nine)

U.S. Supreme Court, 1932 (Five years before the Switch in Time that Saved Nine)
Attribution: Courtesy of U.S. Supreme Court
Source: Wikipedia

The Four Horsemen vs. The Three Musketeers?

During the 1930s, the Supreme Court contained two voting blocs. The “Four Horsemen,” which consisted of Justices Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, believed in upholding the Constitution and personal freedom. They generally opposed Roosevelt’s New Deal legislation. The Three Musketeers, Louis Brandeis, Benjamin Cardozo, and Harlan Stone, supported the New Deal. Chief Justice Charles Hughes and Justice Owen Roberts acted as swing votes with Hughes often siding with the Musketeers and Roberts usually finding equal ground with the Four Horsemen.

From 1935-1937, the Four Horsemen and Justice Roberts struck down several parts of the highly unconstitutional New Deal. Roosevelt and his supporters despised the Horsemen. However, unless one of them retired, there was nothing he could do to stop them. That is, until he and his attorney general came up with the Judicial Procedures Reform Bill of 1937.

President Roosevelt’s Court Packing Plan?

This was the infamous “court packing plan.” President Roosevelt proposed that he be given the power to appoint a new justice for every sitting justice that continued to serve six months past his or her 70th birthday. The bill would’ve allowed him to add 44 federal judges as well as 6 Supreme Court justices. It encountered tremendous opposition even from Roosevelt’s supporters. The public lost faith in him and a previously supportive Congress began to question if the President was trying to create a dictatorship.

The Switch in Time that Saved Nine?

Less than two months after the Bill was announced, Justice Roberts joined the Three Musketeers and Chief Justice Hughes in West Coast Hotel v. Parrish, which upheld minimum wage legislation. It was a strange vote considering the fact that Roberts had previously been on the other end of several decisions regarding the minimum wage. Since then, it has become known as “the switch in time that saved nine,” alluding to the theory that he switched sides in order to stop Roosevelt from usurping the Supreme Court’s independence.

Guerrilla Explorer’s Analysis

Was the Switch in Time that Saved Nine deliberate? Did Justice Roberts abandon his ideology for political purposes? These questions remain a source of vigorous debate to this day. According to research conducted by Professor G. Edward White, the votes were cast a few days before the court-packing plan was announced. Others point out that Roberts wasn’t a consistent supporter of the Four Horsemen and suggest that his ideology, if indeed he had one to begin with, was actually closer to the Three Musketeers.

On the other hand, there’s some interesting circumstantial evidence to suggest that Chief Justice Hughes engineered the Switch in Time that Saved Nine. Knowing that Roosevelt planned to go after the Supreme Court, Hughes took Roberts under his wing and convinced him to abandon his principles. Also, according to Burt Solomon’s FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy, even Roberts’ newly-found allies didn’t understand the Switch in Time that Saved Nine. Harlan Stone, one of the Three Musketeers, wrote a letter to Felix Frankfurter in which he called the Roberts’ vote, “a sad chapter in our judicial history” and referenced “explanations which do not explain.”

The Switch in Time that Saved Nine, as well as the subsequent retirement of Justice Devanter, ultimately led to the defeat of President Roosevelt’s court-packing bill. Still, it could be argued that Roosevelt won in the end as he held the office of President for another eight years, allowing him the opportunity to replace eight Justices and in essence, remake the Supreme Court in his image. But if Roosevelt won, then who lost? Some would say the American people themselves. As Judge Napolitano put it in his book The Constitution in Exile:

“Justice Owen Roberts switched ideological sides and brought a conclusive end to the Constitution as protector of natural rights, the free market, and federalism.” ~ Judge Andrew Napolitano

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