Court History: The Switch in Time That Saved Nine


The Supreme Court has always had nine justices, and it always will, right? Well, not necessarily. The US Constitution doesn’t specify how many seats the Supreme Court needs to have, and there have been times when US presidents have considered adding more justices to the court to correct what they see as imbalances on the bench.

One notable example took place in 1937 when President Franklin D. Roosevelt came very close to passing a controversial court-reform bill that would have added several more justices to the court. So, why did FDR abandon this plan?

Owen Roberts and the Four Horsemen

Throughout 1935 and 1936, Associate Justice Owen Roberts sided multiple times with the court’s four conservative justices against many of Roosevelt’s New Deal policies. The New Deal, a sweeping series of laws that were aimed at alleviating the Great Depression, was critical for Roosevelt’s governing plan. Roberts siding with the “Four Horsemen” (Pierce Butler, George Sutherland, James Clark McReynolds, and Willis Van Devanter) time and again, striking down numerous Roosevelt policies, was reportedly beginning to wear on the president.

Early in 1937, Roosevelt introduced a court-reform bill that would have seen the court’s number of justices expanded beyond nine to introduce some friendlier justices to the bench. The conventional account holds that Justice Roberts, fearful of sweeping changes to the court itself, decided to switch from siding with the conservative justices to calm Roosevelt’s calls for more justices.

The “Switch” That Saved Nine

The March 1937 decision in the landmark West Coast Hotel Co. v. Parrish case saw Roberts finally break from the “Four Horsemen” and join the court’s “Three Musketeers,” the liberal justices who generally supported Roosevelt’s policies. In addition to Chief Justice Evans Hughes, the five made a majority in the case, which allowed for a Washington minimum wage law to go uncontested.

This case is believed by many historians to be the end of the “Lochner era,” a period defined by the court striking down laws that would negatively impact business interests. The popular wisdom at the time, originally stated by humorist Cal Tinney, is that Roberts’ sudden change of heart was the “Switch in Time That Saved Nine.”

That is to say, some thought that Roberts didn’t rule in the case according to his jurisprudence, but instead as a political measure to avert Roosevelt’s proposed court reforms. Notably, some historians suggest that Roberts had made up his mind in the case before Roosevelt introduced his reform bill. However, the term entered use as an adage in American English, and the popular perception of the Supreme Court bending to Roosevelt’s will remains prevalent to this day.