The Switch in Time that Saved Nine

The Events of 1936-37

Oct. 1936  Supreme Court holds its initial closed-door conference on West Coast Hotel Co. v. Parrish, with Justice Roberts voting to overturn the 1923 precedent established in Adkins v. Children’s Hospital and uphold the Oregon minimum wage law for women and children.

Nov. 1936  FDR wins the presidency in a somewhat surprising landslide, and the Democrats take huge majorities in both House and Senate. 

Feb. 5:  FDR announces court-packing plan; fireside chat Mar. 9

Mar. 1:  Congress passes Supreme Court Retirement Act (retirement with full pay at age 70)

Mar. 29:  Supreme Court announces 5-4 decision in West Coast Hotel Co. v. Parrish (also two  other 9-0 rulings upholding New Deal laws).  But maybe this was not really a reaction to the court-packing plan:

  • Roberts switched his vote compared to the 5-4 decision in Morehead v. N.Y. ex rel Tipaldo (1936), in which he had relied on Adkins (1923) as a precedent, all concerning wages-and-hours laws applying to women and children.  Adkins, however, had not been challenged by attorneys in the Tipaldo case; it was challenged in Parrish.
  • The first actual vote on Parrish was taken Dec. 19, 1936, 4-4 in Stone’s absence; Chief Justice Hughes delayed further consideration to get a vote overturning Adkins (re DC law on min wages for women & children, based on liberty-to-contract), previously advocated by Roberts even in Morehead.  The final conference on Parrish took place Feb. 6, 1937, the day after FDR’s announcement.

Apr. 12:  decisions announced in NLRB v. J&L, NLRB v. Friedman-Harry Marks Clothing Co., and several others declare NLRB within Commerce Clause powers

May 18:  van Devanter announces retirement

Jul. 14:  Senate majority leader Robinson found dead; upon return from Arkansas funeral Jul. 22, Senators vote 70-20 to recommit

Aug. 18:  Hugo Black replaces van Devanter on Court

(Jan. 1938 Stanley Reed replaces George Sutherland on Court, creating a liberal majority)