Supreme Shifts

the source: “The Debate Over the Constitutional Revolution of 1937: Introduction” by Alan Brinkley and “The Constitution, the Supreme Court, and the New Deal” by Laura Kalman, both in American Historical Review, Oct. 2005.

Mindful of President Franklin D. Roosevelt’s landslide reelection victory in 1936 and fearful of his “court-packing” scheme, the Supreme Court in 1937 suddenly reversed course and began approving New Deal legislation. At least, the reversal looked sudden at the time, and has been so regarded in the standard scholarly interpretation of what happened. But in the past decade or so, in a debate freighted with larger political implications, some scholars have argued that the change was actually the product of an evolutionary process occurring over a period of years.

By the end of 1936, the Court had struck down a series of New Deal measures, often by 5–4 decisions. In early 1937, a frustrated FDR proposed legislation that would have enabled him to nominate a new Supreme Court justice for each sitting justice above the age of 70—which that year would have meant adding six justices to the Court’s nine.

“The plan created a political firestorm” and damaged the president’s standing, writes Alan Brinkley, a historian at Columbia University. “But according to more than a generation of scholars, it also frightened the justices themselves.” Justice Owen Roberts appeared to jump from the conservative to the liberal side, joining a 5–4 majority in West Coast Hotel v. Parrish to uphold a state minimum-wage statute virtually identical to one the Court had invali­dated just months earlier. Two weeks later, he joined in a 5–4 ruling upholding a major New Deal measure, the National Labor Relations Act. The “switch in time [that] saved nine,” as a wit of the day put it, removed the Court as an obstacle to New Deal legislation and ended FDR’s bid to pack the Court.

In its 1937 decisions, the Court jettisoned the doctrine, established in Lochner v. New York (1905), that many federal and state government efforts to regulate wages and hours violated workers’ “liberty of contract” under the Fourteenth Amend­ment.

Summarizing the work of the scholars who have argued that the shift was not as abrupt as it seemed, Laura Kalman of the University of California,  Santa Barbara, notes that Roberts himself wrote the majority opinion in an important 1935 case that paved the way for the 1937 “switch.” The Court’s many narrow votes during the 1930s showed that its approach was in flux. Finally, Roberts himself denied being swayed by politics. Indeed, he had cast his vote in Parrish before FDR made his court-packing proposal.

At bottom, Brinkley and Kalman observe, this is a debate about how the Supreme Court changes its mind. Is the Court (and the law more generally) a creature of politics, as legal realists and other thinkers of progressive bent have argued? That’s the implication of the standard “switch in time” view of the 1937 events.

Or does the law evolve, as Brinkley puts it, through “a largely internal process, insulated from politics,” and based on constitutional principles and precedents? That’s a traditionalist view, but it has also been attractive to some of Kalman’s revisionist scholars, who worry that viewing precedent-breaking decisions such as those of the 1960s and ’70s as politically inspired will deprive them of legitimacy. As for Brinkley and Kalman, they doubt that the Court is often moved by either pure principle or pure politics.