Roosevelt’s plan had a good-government pretext: that the aging court had fallen behind in its work. To fix this alleged problem (a subterfuge that fooled no one), the administration proposed legislation to let the president appoint an additional justice for each one over the age of 70, up to a total of six, thereby giving the New Deal a comfortable majority.
Legal scholars, Republican lawmakers, and even some Democrats cried foul: the proposed law would play havoc with the separation of powers. True, the Constitution is silent about the exact number of justices, which had fluctuated before settling at the standard nine in 1870. But fiddling with the number to obtain desired outcomes would subordinate the court to the president and Congress. Led by Burton Wheeler, a Montana Democrat, the Senate took particular umbrage, and in the end Roosevelt suffered an embarrassing defeat.
In the meantime, the Court had become more Roberts’s than ever. As the Court-packing bill was pending, the Court issued its decision in West Coast Hotel Co. v. Parrish (1937), upholding Washington State’s minimum-wage law by a 5-4 margin—majority opinion by Justice Roberts. Just the year before, however, he had been in the majority that struck down New York’s minimum-wage law, so this was definitely a switch: even Felix Frankfurter, a law professor who later became a colleague and great admirer of Roberts’s on the Court, called it a “somersault.” And it was only the beginning. Over the next few years, the Roberts Court became more tolerant of federal laws as well, upholding one New Deal measure after another, including the Social Security laws and the Wagner Act, which strengthened workers’ ability to form unions and engage in collective bargaining. Beginning with the Parrish case, the impetus for the Court-packing legislation had dwindled steadily, and wags talked about Roberts’s “switch in time.”
The wags, however, were wrong: examined closely, the timing was off. Years later, after Roberts’s death in 1955, Justice Frankfurter contributed a eulogy to a Roberts memorial issue of the Penn Law Review; in his essay, Frankfurter made public a memo Roberts had sent him after leaving the Court in 1945. As Court records showed, he had already cast his vote in the second minimum-wage case before the president announced his Court-packing scheme, but the illness of another justice had delayed the decision’s release until afterward. “These facts make it evident,” wrote Roberts, who was understandably sensitive on the point, “that no action taken by the President in the interim had any causal relation to my action in the Parrish case.”
And yet the “switch” won’t go away so easily. Though not reacting directly to Roosevelt’s plan, Roberts seems to have been chastened by scholarly criticism of his opinion in the Agricultural Adjustment Act case, and the sense of frustration voiced by his dissenting brethren, newspaper editorials, and the president.
In siding with the Court’s liberal wing in the late 1930s, then, Roberts was taking note of the national predicament, not to mention the situation in Europe, where dictatorship was a growth industry. He admitted as much in lectures he gave at Harvard Law School in 1951: “An insistence by the Court on holding federal power to what seemed its appropriate orbit when the Constitution was adopted might have resulted in even more radical changes in our dual structure [i.e., the respective spheres of federal and state government] than those which have been gradually accomplished through the extension of the limited jurisdiction conferred on the federal government.” Much as Roosevelt is said to have saved capitalism by performing radical surgery on it, Roberts can be seen as preserving the Court by finding ways to accommodate the New Deal. Solomon’s conclusion seems the right one: “The truly conservative position was to bend with the times.”
Bend, yes; break, no. Shortly before retiring from the Court, Roberts reached the limits of what he would allow the government to get away with in parlous times. The case, which arose during World War II, was Korematsu v. United States (1944), in which an American citizen of Japanese descent was charged with the crime of not being where a military order said he should be: confined with other Japanese Americans to a federal concentration camp. In one of the most repulsive Supreme Court decisions ever handed down, those stalwarts of individual liberty Hugo Black and William O. Douglas voted with the majority to uphold Korematsu’s conviction. Middle-of-the-road Justice Roberts refused to go along, however: “I dissent,” he wrote bluntly, “because I think the indisputable facts exhibit a clear violation of constitutional rights.”
Owen J. Roberts had joined the Supreme Court with no judicial experience to draw on, and he had to learn fast. Almost from the start, he found himself casting votes in cases that tested the efficacy of government at a time of unprecedented crisis. His opinions may not always be models of doctrinal rigor, but by the time he left the Court 15 years later he embodied a judicial quality as rare as it is highly prized: wisdom.
Dennis Drabelle G’66 L’69 is a contributing editor of The Washington Post Book World.
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