![Jowenroberts](https://upload.wikimedia.org/wikipedia/commons/9/96/Jowenroberts.jpg)
"The switch in time that saved nine" is the phrase, originally a quip by humorist Cal Tinney, about what was perceived in 1937 as the sudden
jurisprudential shift by
Associate Justice
Associate justice or associate judge (or simply associate) is a judicial panel member who is not the chief justice in some jurisdictions. The title "Associate Justice" is used for members of the Supreme Court of the United States and some state ...
Owen Roberts
Owen Josephus Roberts (May 2, 1875 – May 17, 1955) was an Associate Justice of the United States Supreme Court from 1930 to 1945. He also led two Roberts Commissions, the first of which investigated the attack on Pearl Harbor, and the sec ...
of the
U.S. Supreme Court
The Supreme Court of the United States (SCOTUS) is the highest court in the federal judiciary of the United States. It has ultimate appellate jurisdiction over all U.S. federal court cases, and over state court cases that involve a point o ...
in the 1937 case ''
West Coast Hotel Co. v. Parrish
''West Coast Hotel Co. v. Parrish'', 300 U.S. 379 (1937), was a decision by the United States Supreme Court upholding the constitutionality of state minimum wage legislation. The court's decision overturned an earlier holding in ''Adkins v. Child ...
''.
Conventional historical accounts portrayed the Court's majority opinion as a strategic political move to protect the Court's integrity and independence from
President
President most commonly refers to:
*President (corporate title)
*President (education), a leader of a college or university
*President (government title)
President may also refer to:
Automobiles
* Nissan President, a 1966–2010 Japanese ful ...
Franklin Roosevelt's court-reform bill (also known as the "court-packing plan"), but later historical evidence gives weight to Roberts' decision being made much earlier, before the bill's introduction.
The term itself is a reference to the
aphorism
An aphorism (from Greek ἀφορισμός: ''aphorismos'', denoting 'delimitation', 'distinction', and 'definition') is a concise, terse, laconic, or memorable expression of a general truth or principle. Aphorisms are often handed down by tra ...
"a
stitch in time saves nine", meaning that
preventive maintenance
The technical meaning of maintenance involves functional checks, servicing, repairing or replacing of necessary devices, equipment, machinery, building infrastructure, and supporting utilities in industrial, business, and residential installa ...
before something breaks is less work than fixing that thing after it breaks.
Conventional account
Through the 1935–36 terms, Roberts had been the deciding vote in several 5–4 decisions invalidating
New Deal
The New Deal was a series of programs, public work projects, financial reforms, and regulations enacted by President Franklin D. Roosevelt in the United States between 1933 and 1939. Major federal programs agencies included the Civilian Cons ...
legislation, casting his vote with the "conservative" bloc of the bench, the so-called "
Four Horsemen
The Four Horsemen of the Apocalypse are figures in the Christian scriptures, first appearing in the Book of Revelation, a piece of apocalypse literature written by John of Patmos.
Revelation 6 tells of a book or scroll in God's right hand tha ...
". This "conservative" wing of the bench is viewed to have been in opposition to the "liberal
Three Musketeers
3 is a number, numeral, and glyph.
3, three, or III may also refer to:
* AD 3, the third year of the AD era
* 3 BC, the third year before the AD era
* March, the third month
Books
* ''Three of Them'' (Russian: ', literally, "three"), a 1901 n ...
". Justice Roberts and
Chief Justice Charles Evans Hughes
Charles Evans Hughes Sr. (April 11, 1862 – August 27, 1948) was an American statesman, politician and jurist who served as the 11th Chief Justice of the United States from 1930 to 1941. A member of the Republican Party, he previously was the ...
, the remaining two justices, were the center swing votes.
The "switch" came in the case ''
West Coast Hotel Co. v. Parrish
''West Coast Hotel Co. v. Parrish'', 300 U.S. 379 (1937), was a decision by the United States Supreme Court upholding the constitutionality of state minimum wage legislation. The court's decision overturned an earlier holding in ''Adkins v. Child ...
'', when the Court announced its opinion in March 1937.
Roberts switched sides and joined Chief Justice Hughes, and Justices
Louis Brandeis
Louis Dembitz Brandeis (; November 13, 1856 – October 5, 1941) was an American lawyer and associate justice on the Supreme Court of the United States from 1916 to 1939.
Starting in 1890, he helped develop the "right to privacy" concept ...
,
Benjamin N. Cardozo
Benjamin Nathan Cardozo (May 24, 1870 – July 9, 1938) was an American lawyer and jurist who served on the New York Court of Appeals from 1914 to 1932 and as an Associate Justice of the Supreme Court of the United States from 1932 until his dea ...
, and
Harlan Fiske Stone
Harlan is a given name and a surname which may refer to:
Surname
*Bob Harlan (born 1936 Robert E. Harlan), American football executive
*Bruce Harlan (1926–1959), American Olympic diver
*Byron B. Harlan (1886–1949), American politician
*Byron G ...
in upholding a
Washington
Washington commonly refers to:
* Washington (state), United States
* Washington, D.C., the capital of the United States
** A metonym for the federal government of the United States
** Washington metropolitan area, the metropolitan area centered o ...
minimum wage
A minimum wage is the lowest remuneration that employers can legally pay their employees—the price floor below which employees may not sell their labor. Most countries had introduced minimum wage legislation by the end of the 20th century. Bec ...
law. The decision was handed down less than two months after President Franklin D. Roosevelt announced his
court-reform bill. Conventional history has painted Roberts's vote as a strategic, politically motivated shift to "save nine", meaning it defused Roosevelt's drive to increase the number of justices on the Supreme Court beyond nine. At the time, much of the public thought Roberts was trying to defeat Roosevelt's proposed legislation, but the historical record also lends weight to assertions that Roberts's decision was made much earlier, before the bill's introduction.
The ruling marked the end of the
Lochner era
The ''Lochner'' era is a period in American legal history from 1897 to 1937 in which the Supreme Court of the United States is said to have made it a common practice "to strike down economic regulations adopted by a State based on the Court's o ...
, a forty-year period in which the Supreme Court often struck down legislation that regulated business activity.
Historical view
Popular as well as some scholarly understanding of the Hughes Court has typically cast it as divided between a conservative and liberal faction, with two critical swing votes. The conservative Justices
Pierce Butler Pierce or Piers Butler may refer to:
*Piers Butler, 8th Earl of Ormond (c. 1467 – 26 August 1539), Anglo-Irish nobleman in the Peerage of Ireland
*Piers Butler, 3rd Viscount Galmoye (1652–1740), Anglo-Irish nobleman in the Peerage of Ireland
* P ...
,
James Clark McReynolds
James Clark McReynolds (February 3, 1862 – August 24, 1946) was an American lawyer and judge from Tennessee who served as United States Attorney General under President Woodrow Wilson and as an associate justice of the Supreme Court of the Unite ...
,
George Sutherland
George Alexander Sutherland (March 25, 1862July 18, 1942) was an English-born American jurist and politician. He served as an associate justice of the U.S. Supreme Court between 1922 and 1938. As a member of the Republican Party, he also repre ...
and
Willis Van Devanter
Willis Van Devanter (April 17, 1859 – February 8, 1941) was an American lawyer who served as an Associate Justice of the Supreme Court of the United States from 1911 to 1937. He was a staunch conservative and was regarded as a part of the Four ...
were known as "
The Four Horsemen
The Four Horsemen of the Apocalypse are figures in the Christian scriptures, first appearing in the Book of Revelation, a piece of apocalypse literature written by John of Patmos.
Revelation 6 tells of a book or scroll in God's right hand th ...
". Opposed to them were the liberal Justices Louis Brandeis, Benjamin Cardozo and Harlan Fiske Stone, dubbed "
The Three Musketeers
''The Three Musketeers'' (french: Les Trois Mousquetaires, links=no, ) is a French historical adventure novel written in 1844 by French author Alexandre Dumas. It is in the swashbuckler genre, which has heroic, chivalrous swordsmen who fight f ...
". Chief Justice Charles Evans Hughes and Justice Owen Roberts were regarded as the swing votes on the court.
Recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial, differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court.
Roberts had
voted to grant
''certiorari'' to hear the ''Parrish'' case before the
election of 1936. Oral arguments occurred on December 16 and 17, 1936, with counsel for Parrish specifically asking the court to reconsider its decision in ''
Adkins v. Children's Hospital
''Adkins v. Children's Hospital'', 261 U.S. 525 (1923), is a United States Supreme Court opinion that federal minimum wage legislation for women was an unconstitutional infringement of liberty of contract, as protected by the due process clause ...
'', which had been the basis for striking down a
New York
New York most commonly refers to:
* New York City, the most populous city in the United States, located in the state of New York
* New York (state), a state in the northeastern United States
New York may also refer to:
Film and television
* '' ...
minimum wage law Minimum wage law is the body of law which prohibits employers from hiring employees or workers for less than a given hourly, daily or monthly minimum wage. More than 90% of all countries have some kind of minimum wage legislation.
History
Until r ...
in ''Morehead v. New York ex rel. Tipaldo'' in the late spring of 1936. In ''Tipaldo'', the
appellant
In law, an appeal is the process in which cases are reviewed by a higher authority, where parties request a formal change to an official decision. Appeals function both as a process for error correction as well as a process of clarifying and ...
had not challenged the ''Adkins'' precedent.
Having no "
case or controversy
The Supreme Court of the United States has interpreted the Case or Controversy Clause of Article III of the United States Constitution (found in Art. III, Section 2, Clause 1) as embodying two distinct limitations on exercise of judicial review: ...
" legs upon which to stand, Roberts and the rest of the majority deferred to the ''Adkins'' precedent, voting to strike the New York statute. Justice Butler authored the opinion of the Court in the ''Tipaldo'' case. He and the rest of the majority, excluding Roberts, shortly thereafter found themselves in the minority on the ''Parrish'' case.
In the ''Parrish'' case, Roberts indicated his desire to overturn ''Adkins'' immediately after oral arguments on December 17, 1936. The initial conference vote on December 19, 1936, was split 4–4; with this even division on the Court, the holding of the
Washington Supreme Court
The Washington Supreme Court is the highest court in the judiciary of the U.S. state of Washington
Washington commonly refers to:
* Washington (state), United States
* Washington, D.C., the capital of the United States
** A metonym for the ...
, finding the minimum wage statute constitutional, would stand. The eight voting justices anticipated Justice Stone—absent due to illness—would be the fifth vote necessary for a majority opinion affirming the constitutionality of the minimum wage law. As Chief Justice Hughes desired a clear 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.
President Franklin D. 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 ninth
fireside chat
The fireside chats were a series of evening radio addresses given by Franklin D. Roosevelt, the 32nd President of the United States, between 1933 and 1944. Roosevelt spoke with familiarity to millions of Americans about recovery from the Great De ...
. The Court's opinion in ''Parrish'' was not published until March 29, 1937, after Roosevelt's radio address. Chief Justice Hughes wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slightest effect on our
he court's
He or HE may refer to:
Language
* He (pronoun), an English pronoun
* He (kana), the romanization of the Japanese kana へ
* He (letter), the fifth letter of many Semitic alphabets
* He (Cyrillic), a letter of the Cyrillic script called ''He'' in ...
decision", but due to the delayed announcement of its decision the Court was characterized as retreating under fire. Roosevelt also believed that because of the overwhelming support that had been shown for the New Deal in his re-election, Hughes was able to persuade Roberts to no longer base his votes on his own political beliefs and side with him during future votes on New Deal related policies. In one of his notes from 1936, Hughes wrote that Roosevelt's re-election forced the court to depart from "its fortress in public opinion".
The "switch", together with the retirement of Justice Van Devanter at the end of the 1937 spring term, is often viewed as having contributed to the demise of Roosevelt's court reform bill. The failure of the bill preserved the size of the U.S. Supreme Court at nine justices, as it had been since 1869 and remains to this day.
Roberts burned his legal and judicial papers,
so there is no significant collection of his manuscript papers as there is for most other modern Justices. However, in 1945, Roberts did provide Justice
Felix Frankfurter
Felix Frankfurter (November 15, 1882 – February 22, 1965) was an Austrian-American jurist who served as an Associate Justice of the Supreme Court of the United States from 1939 until 1962, during which period he was a noted advocate of judicia ...
with a memorandum detailing his own account of the events leading up to his vote in the ''Parrish'' case. In the memorandum, Roberts concluded that, "no action taken by the President in the interim
etween the ''Tipaldo'' and ''Parrish'' caseshad any causal relation to my action in the ''Parrish'' case."
From this, Justice Frankfurter called the charge against Roberts "false" and concluded:
See also
*
History of the Supreme Court of the United States
The Supreme Court of the United States is the only court specifically established by the Constitution of the United States, implemented in 1789; under the Judiciary Act of 1789, the Court was to be composed of six members—though the number ...
References
Notes
Sources
*
*
*
*
*
*
{{DEFAULTSORT:Switch in time
History of the Supreme Court of the United States
New Deal