Historical View
Popular as well as some scholarly understanding of the Hughes Court has typically cast it as divided between a conservative and liberal faction, with two critical swing votes. The conservative Justices Pierce Butler, James Clark McReynolds, George Sutherland and Willis Van Devanter were known as "The Four Horsemen". Opposed to them were the liberal Justices Louis Brandeis, Benjamin Cardozo and Harlan Fiske Stone, dubbed "The Three Musketeers". Chief Justice Charles Evans Hughes and Justice Owen Roberts, were regarded as the swing votes on the court. Recent scholarship has eschewed these labels since they suggest more legislative, as opposed to judicial differences. While it is true that many rulings of the 1930s Supreme Court were deeply divided, with four justices on each side and Justice Roberts as the typical swing vote, the ideological divide this represented was linked to a larger debate in U.S. jurisprudence regarding the role of the judiciary, the meaning of the Constitution, and the respective rights and prerogatives of the different branches of government in shaping the judicial outlook of the Court.
Roberts had voted to grant certiorari to hear the Parrish case before the election of 1936. Oral arguments occurred on December 16 and 17, 1936, with counsel for Parrish specifically asking the court to reconsider its decision in Adkins v. Children's Hospital, which had been the basis for striking down a New York minimum wage law in Morehead v. New York ex rel. Tipaldo in the late spring of 1936. In Tipaldo, the appellant had not challenged the Adkins precedent. Having no "case or controversy" legs upon which to stand, Roberts and the rest of the majority deferred to the Adkins precedent, voting to strike the New York statute. Justice Pierce Butler authored the opinion of the Court in the Tipaldo case. He and the rest of the majority, excluding Roberts, shortly thereafter found themselves in the minority on the Parrish case.
In the Parrish case, Roberts indicated his desire to overturn Adkins immediately after oral arguments on Dec. 17, 1936. The initial conference vote on Dec. 19, 1936 was split 4-4; with this even division on the Court, the holding of the Washington Supreme Court, finding the minimum wage statute constitutional, would stand. The eight voting justices anticipated Justice Stone—absent due to illness—would be the fifth vote necessary for a majority opinion affirming the constitutionality of the minimum wage law. As Chief Justice Hughes desired a clear 5-4 affirmation of the Washington Supreme Court's judgment, rather than a 4-4 default affirmation, he convinced the other justices to wait until Stone's return before both deciding and announcing the case.
President Roosevelt announced his court reform bill on February 5, 1937, the day of the first conference vote after Stone's February 1, 1937 return to the bench. Roosevelt later made his justifications for the bill to the public on March 9, 1937 during his 9th Fireside Chat. The Court's opinion in Parrish was not published until March 29, 1937, after Roosevelt's radio address. Chief Justice Hughes wrote in his autobiographical notes that Roosevelt's court reform proposal "had not the slightest effect on our decision," but due to the delayed announcement of its decision the Court was characterized as retreating under fire. Roosevelt also believed that because of the overwhelming support that had been shown for the New Deal in his re-election, Hughes was able to persuade Roberts to no longer base his votes on his own political beliefs and side with him during future votes on New Deal related policies In one of his notes from 1936, Hughes wrote that Roosevelt's re-election forced the court to depart from "its fortress in public opinion" and severely weakened its capability to base its rulings on personal or political beliefs.
The "switch", together with the retirement of Justice Willis Van Devanter at the end of the 1937 spring term, is often viewed as having contributed to the demise of Roosevelt's court reform bill by undermining the necessity of its passage. The failure of the bill preserved the size of the U.S. Supreme Court at nine justices, as it had been since 1869, and so remains to this day.
Shortly after leaving the Court, Roberts reportedly burned all of his legal and judicial papers. As a result, there is no significant collection of Roberts' manuscript papers, as there is for most other modern Justices. Roberts did prepare a short memorandum discussing his alleged change of stance around the time of the court-packing effort, which he left in the hands of Justice Felix Frankfurter.
Read more about this topic: The Switch In Time That Saved Nine
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