I had a request in comments to discuss how new historical findings have complicated the traditional story about FDR’s Court-packing plan and the “Switch in Time That Saved Nine.” Since this also gives me a chance to do something I’ve been meaning to do for a while — discuss and fulsomely praise Jeff Shesol’s recent book Supreme Power — I thought I’d take the request.
As most of you know, as the culmination of a long, if erratic, series of reactionary opinions by holdovers from the McKinleynomics regime on the Supreme Court, in 1936 the Supreme Court two issued widely and justifiably ridiculed opinions 1)striking down New York’s minimum wage law based on an implied “liberty of contract” that envisioned impoverished workers and their employers as being on equal footing as bargaining partners and 2)holding that a coal mining concern that sent more than 95% of its product out of state was not engaged in interstate commerce and hence its labor relations were beyond the reach of the federal government. In 1937, the Court reversed itself, upholding a state minimum wage law and the National Labor Relations Act in cases that, for all intents and purposes, rested on facts that were materially indistinguishable from the 1936 cases. Since the key intervening event was FDR’s proposal of a Court-packing plan , the classic civics textbook history is that while the plan stalled in the Senate it fundamentally succeeded by causing the Court to back down.
However, historical evidence complicates this claim. We know, thanks to the work of Bruce Ackerman and other historians, that swing vote Owen Roberts had already voted in conference to sustain the Washington minimum wage law three months before the Court packing plan was announced. And he shifted his vote although, as Shesol shows, FDR went out of his way not to make the Court a campaign issue in 1936 although he had been highly critical in the past. (Chief Justice Huges also switched of half-switched his vote in some case, although he was never a decisive vote in these cases and apparently he was being largely strategic when he joined Roberts and the Four Horsemen.) The Court did hear oral arguments in Laughlin Steel right after the announcement of the plan, so it’s possible that the pressure affected Roberts’s vote in that case, although since he had already switched once it’s hard to say.
So if it wasn’t the Court-packing plan, or at least just the Court-packing plan, what was it? Roberts always maintained that he was perfectly consistent, but essentially nobody believes him. Not only are the votes transparently inconsistent, but as Shesol points out Roberts’s rationale directly contradicts the facts. Roberts says that he voted against the New York minimum wage bill in Tipaldo because New York refused to ask for Adkins to be overruled, but since Washington explicitly asked for the controlling precedent to be reconsidered he switched his vote in Parrish. But, actually, the reverse is true: New York, while arguing that its carefully drafted bill could be distinguished, also asked for Adkins to be overruled while Washington didn’t. So Roberts certainly did change his mind for reasons that had nothing to do with case facts.
If it wasn’t the Court-packing plan directly, I certainly don’t doubt that political pressure of various kinds affected Roberts. Roberts was a Republican corporate lawyer who also liked to think of himself as enlightened and moderate, and he also had presidential aspirations that his 1936 Supreme Court votes permanently ended. He had authored a key opinion undermining the “liberty of contract” doctrine before rejoining the reactionary faction of the Court. So it’s likely that the reaction against the extremist 1936 opinions affected him. As Shesol demonstrates, the reaction to Tipaldo in particular was fierce and bipartisan — “out of the 344 editorials…only 10 supported it.” The vain and insecure Roberts may have also been affected by a Stone dissent in another 1936 case that was unusually cutting for the era and completely shredded Robert’s opinion. (One of the many thing Supreme Power documents well is the extent to which the cavalcade of reactionary nonsense pushed Stone to the end of his rope. After one particularly silly Sutherland opinion gutting the SEC’s investigatory powers, Stone wrote Felix Frankfurter that the opinion “was written for morons…When our Court sets at naught a plain command of Congress, without the invocation of any identifiable prohibition of the Constitution, and supports it only by platitudinous irrelevancies, it is a matter of transcendent importance.” Alas, the quality of conservative jurisprudence hasn’t necessarily improved much.)
So while the Court-packing plan itself may not have influenced Roberts, political pressure more generally (including FDR’s previous willingness to play constitutional hardball) almost certainly did. And the 1936 opinions were so extreme and untenable — collectively producing a situation in which neither level of government had the ability to pass fundamental regulations, based on strained or entirely judicially invented readings of the Constitution — that it was a matter of time in any case.