The Right Coast

March 29, 2005
The Switch in Time that Saved Nine
By Gail Heriot

Today is the anniversary of the 1937 decision in West Coast Hotel v. Parrish and Justice Owen Roberts' famous "switch in time that saved nine."

Some background for non-lawyers (and forgetful lawyers):

The Constitution doesn’t say how many justices the Supreme Court must have. So when Franklin Roosevelt proposed that Congress increase the number of justices on the Court, he wasn’t proposing anything unconstitutional. He was, however, fighting a tradition. The Supreme Court had had nine since 1869 and prior efforts to change that had not met with success.

FDR's motive was transparently political. He was seeking some way around a Court that had held much of his New Deal to be unconstitutional--often in 5-4 decisions. He proposed adding a new justice for every sitting justice over the age of 70--something to help these poor fellows out with their crushing work load. Before he could carry out his threat, however, Justice Owen Roberts, in a move forever dubbed as the switch in time that saved nine, dramatically came ‘round to FDR’s way of thinking. The court was then 5-4 in FDR’s favor.

If Roberts was intimidated, he probably shouldn't have been; the court-packing scheme was opposed by most of the public and most members of Congress. But when the proposal failed in the Senate on July 22, 1937, I doubt FDR shed any tears. He'd already won the war.

West Coast Hotel itself concerned the constitutionality of minimum wage laws.