« Intellectual Property in Class Notes | Main | State Law and Section Three of the Fourteenth Amendment »

Wednesday, August 25, 2021

The Myth of the "Switch In Time"

A common explanation for why the Supreme Court made reversed itself in 1937 on several constitutional subjects is that they were fearful of President Roosevelt's Court-packing plan. Subsequent scholarship has raised serious doubts about this explanation, pointing out that Justice Roberts appears to have decided on that course after Roosevelt's landslide reelection in 1936, which was well before the plan was announced.

As far as I can tell, the first time that FDR personally advanced the "switch-in-time" explanation was in his Constitution Day Address in September 1937. There he said the following:

For twenty years the Odd Man on the Supreme Court refused to admit that State minimum wage laws for women were constitutional. A few months ago, after my message to the Congress on the rejuvenation of the Judiciary, the Odd Man admitted that the Court had been wrong—for all those twenty years—and overruled himself.  

FDR later amplified this explanation, which of course was a way of of claiming that the failure of the Court-packing plan was really a success. That too is highly questionable, as many scholars have pointed out that FDR's legislative clout on Capitol Hill was greatly diminished by the Court-packing fight.

Interestingly enough, the first description in The New York Times about what the Court did as a "switch in time" was a quote from Abe Fortas, then a professor at Yale Law School.

UPDATE: John Barrett has a great recent article that establishes who coined "the switch in time."

Posted by Gerard Magliocca on August 25, 2021 at 02:28 PM | Permalink


The "switch in time" was Justice Roberts' vote in the minimum wage case.

I have read accounts that argue that he planned to vote that way before the election. A minimum wage case case up in 1936 (Tipaldo) and he was willing to overrule then. But, the New York didn't argue for reversal of the precedent. He felt it was wrong to merely try to distinguish.

They then took a case that would specifically force them to determine if the minimum wage precedent (Adkins) should be overruled. This was handed down in 1937 & he provided the vote to overrule.

Justice Frankfurter had one account of this. See, "Mr. Justice Roberts" in 104 University Penn. Law Review 311 (1955) though I found it in a chapter in "An Autobiography of the Supreme Court" by Alan Westin, which is a collect of justices' writings.

By these accounts, the 1936 elections wasn't the main driver though I wouldn't be surprised if it factored into his reasoning regarding the "reasonableness" of the law, which is going to be in some sense a reflection of the spirit of the times.

It is also noted that Roberts had already earlier supported a stronger view of legitimate state police power (see, e.g., Nebbia v. NY) and the "switch" was really part of a development that spanned some years. I'm open to some thought that a centrist vote like Roberts would be somewhat influenced by the times. Judges are creatures of an age, and that factors in.

Posted by: Joe | Aug 25, 2021 6:02:02 PM

Interesting, yet, I have come across different explanations. One of them, I quote from the abstract of one study of that issue:

" Using this dataset, which denotes an undeniable conservtive shift pre-Parrish (1934-1936), and a marked liberal shift post the 1936 election, this paper constructs a compelling argument that Justice Roberts's varying jurisprudence was not guided as much by public opinion, or differing legal arguments, but rather by a desire to run against President Roosevelt in the 1936 election. It is an explanation, supported by a plethora of original evidence, that most comprehensively explains Justice Roberts's confounding
jurisprudence from 1933-1937."

Yet, I quote from Wikipedia:

" Roberts burned his legal and judicial papers,[21] 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 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 [between the Tipaldo and Parrish cases] had any causal relation to my action in the Parrish case."

Here links:




Posted by: El roam | Aug 25, 2021 3:28:03 PM

The comments to this entry are closed.