Owen Roberts (1875-1955)

Roberts is best known as the justice whose "switch" in 1937 became known as the "switch in time that saved nine." When Franklin Delano Roosevelt became President in March 1933, he unleashed an unprecedented governmental effort to lift the United States out of the Great Depression. In 1934, as the first New Deal laws and their state law equivalents came before the Court, Roberts joined the majority in upholding such laws against constitutional attack on commerce clause and 14th amendment due process grounds. But by 1935, he, along with the Four Horsemen (Van Devanter, McReynolds, Butler, and Sutherland) made a majority that held unconstitutional several New Deal acts. Although in several cases the Supreme Court was unanimous in declaring a New Deal law unconstitutional (e.g., Schechter Poultry v. United States, holding the National Industrial Recovery Act unconstitutional), Roberts and the other Justices  were accused of "government by judiciary," of abusing their power. In 1936, Roberts wrote the Court's opinion in United States v. Butler, in which the Court held unconstitutional the Agricultural Adjustment Act. The opinion first declared that the exercise of judicial review merely involved putting the act next to the Constitution, and deciding whether the former was consonant with the latter. This approach to constitutional adjudication was attacked as simplistic and formalistic. In addition, the opinion declared that the Congress enjoyed broad power when exercising its power to lay and collect taxes and to provide for the general welfare. This resolved a dispute between "Hamiltonians" (led initially by Alexander Hamilton) and "Madisonians" (led initially by James Madison) concerning the breadth of congressional power in favor of the Hamiltonian view. Yet, after doing so, the Court's opinion by Justice Roberts ended by concluding the AAA was unconstitutional as beyond Congress's power. That same year, Roberts silently joined the majority declaring unconstitutional a New York minimum wage law, first enacted when FDR was Governor of the state.

After FDR was re-elected, he announced on February 5, 1937 of his plan to "reorganize" the Court in order to assist it in catching up with its workload. FDR's proposed plan was to allow the President to add one justice to the Court for each Justice 70 or older, up to a maximum of six justices. Not so coincidentally, six members of the Court were then 70 or older. On March 21, 1937, Chief Justice Hughes wrote to the Senate Judiciary Committee stating that the Court was up to date in its work. Eight days later, the Court issued its opinion in West Coast Hotel v. Parrish, which upheld the State of Washington's minimum wage law, and overruled the Court's decision in Morehead decided only 10 months earlier. Two weeks later the Court upheld the National Labor Relations Act in Jones & Laughlin Steel, and on May 24 the Court upheld the Social Security Act as permissible through the taxation and general welfare power. In each of these cases the vote was 5-4, and in each case Justice Roberts silently joined the majority. FDR's court-packing plan fell apart in July, and he was widely excoriated for this plan in Congress.

Legal progressives alleged Roberts had "switched" his vote. Did he do so? It appears unlikely that this question will ever be answered satisfactorily. On December 19, 1936, the Supreme Court, at conference voted on West Coast Hotel. Roberts later stated that he voted in favor of the minimum wage law, and that was used as evidence by his supporters that he had not switched his vote, since the court-reorganization plan was not announced until February 5. But the overwhelming victory by FDR in the November elections, and the fact that the Court met again in conference on February 6, the day after the court-packing plan was announced, to vote 5-4 to uphold the minimum wage law in Parrish suggests that Roberts may have been influenced in part by the tenor of the times, if not the court-packing plan itself, to switch. Of course, Roberts's silence in each of the three important cases decided in the spring of 1937 did not help his cause. After Roberts's death in 1955, Felix Frankfurter wrote a short essay in the University of Pennsylvania Law Review claiming that a memorandum written by Roberts upon request of Frankfurter clearly dissipated any claim of a "switch" by Roberts. I am not sure that Frankfurter's claim can be defended.

Roberts's relations with New Deals Justices Hugo Black and William O. Douglas were strained, and in 1945 Roberts resigned from the Court. When Chief Justice Harlan Fiske Stone drafted a letter praising Roberts by stating, "You have made fidelity to principle your guide to decision," Black objected to this sentence, and refused to sign the letter as then written. No letter was ever sent.

Roberts died on May 17, 1955.

Further reading: Michael Ariens, A Thrice-Told Tale, or Felix the Cat, 107 Harv. L. Rev. 620 (1994).