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Unknown to anyone but the justices themselves, the Court had begun to change on its own, thanks to a switch in opinion by Justice Owen Roberts. In June 1936, he had joined the 5–4 majority firmly pronouncing as unconstitutional “any form of law establishing wages.” In December, a month after Roosevelt's landslide victory, that issue returned to the Court in a case from Washington State. Elsie Parrish, a chambermaid at the Cascadian Hotel in Wenatchee, was paid 22 cents an hour to clean rooms. When she was discharged in 1935, she sued, claiming that she was owed back pay because the hotel had not paid her the minimum wage of $14.50 per week required by state law. State court judges in Washington agreed, and her employer appealed to the Supreme Court, confident that the justices would void the law.

While Roosevelt's Court-packing proposal was mired in a Senate committee, the Court announced a major surprise in West Coast Hotel Co. v. Parrish (1937). Chief Justice Charles Evans Hughes, who had earlier declared that “extraordinary conditions” do not alter the Constitution, pointed to the “recent period of depression” as a justification for new laws that protect against “the exploitation of a class of workers who are in an unequal position with respect to bargaining power and are thus relatively defenseless against the denial of a living wage.” [3] In his opinion, Hughes overruled Adkins v. Children's Hospital (1923) and effectively overruled the decision in Morehead v. New York ex rel. Tipaldo (1936). [4] He also interred the doctrine of freedom of contract, which the conservatives had used to void legislation that regulated employers and workers:

What is this freedom of contract? The Constitution does not speak of freedom of contract. It speaks of liberty and prohibits the deprivation of liberty without due process of law… . Liberty under the Constitution is thus necessarily subject to the restraints of due process, and regulation which is reasonable to its subject and is adopted in the interests of the community is due process. [5]

Justice Roberts, who voted with Hughes to uphold Washington's minimum wage law after having voted to strike down New York's the year before, said nothing, but his change in position was popularly described as “the switch in time that saved the Nine.”

On March 29, the same day the Court issued West Coast Hotel, it unanimously upheld two New Deal statutes—a second Federal Farm Bankruptcy Act, which was virtually identical to the one struck down on Black Monday, and a provision of the Railway Labor Act encouraging collective bargaining. [6] Two weeks later, on April 12, the Court upheld New Deal proposals in five more cases, including a momentous decision that confirmed the federal government's authority to protect the rights of workers to organize unions. The National Labor Relations Board had ordered Jones & Laughlin Steel to rehire ten workers who were fired for union activities. The Pennsylvania company argued that as a manufacturer, it was not engaged in interstate commerce and, therefore, was shielded from federal regulation. This argument had succeeded in the Carter Coal Co. case in 1936, but it failed in 1937 in NLRB v. Jones & Laughlin Steel. [7] The steelmaker puts products into the “stream of commerce,” Hughes said, and “industrial strife would have a most serious effect upon [this] interstate commerce.” Therefore, if a manufacturer's operations “have such a close and substantial relation to interstate commerce, … Congress cannot be denied the power to exercise that control” needed to preserve the flow of commerce, he said. [8]

In mid-May, one of the four staunch conservatives, Justice Willis Van Devanter, age seventy-eight, informed President Roosevelt that he intended to retire at the end of the term. Although Roosevelt's Court-packing bill was about to die in the Senate, the president would have a chance to replace one of the aged justices with a younger jurist sympathetic to the New Deal. Less than a week later, on May 24, the Court confirmed the completeness of its turnabout. In Steward Machine Co v. Davis (1937) and Helvering v. Davis (1937), the Court by 5–4 and 7–2 votes, respectively, upheld the unemployment compensation and old-age benefits programs set out in the Social Security Act. [9] The Court upheld the first as a proper use of the taxing power and the second as an appropriate means of acting to protect the general welfare.

To replace Van Devanter, Roosevelt chose Alabama senator Hugo L. Black as his first nominee to the Court. Black, age fifty-one, was confirmed in August 1937. Black's appointment was only the beginning of a procession of New Deal justices. Over the next six years, Roosevelt named eight justices and elevated a ninth to be chief justice. In the long run, and in the old-fashioned way, Roosevelt succeeded in “packing” the Court with justices who shared his view of the Constitution and federal regulation of the economy.

Within a year of Roosevelt's landslide reelection, the Court had shifted abruptly, from rejecting any government regulation of wages and manufacturers to permitting broad federal intervention in industry and the workplace under an expansionist interpretation of what constitutes interstate commerce. The year 1937 was a turning point in the constitutional jurisprudence of the United States and in the philosophical approach of the Court. According to historian William Leuchtenburg, the shift was so seminal that future histories may well divide the Court's development since 1790 into two fundamental periods: pre-1937 and post-1937. [10] He adds, “The Constitutional Revolution of 1937 fundamentally altered the character of the Court's business, the nature of its decisions, the alignment of its friends and foes. From the Marshall Court to the Hughes Court, the judiciary had been largely concerned with questions of property rights. After 1937, the most significant matters on the docket were civil liberties and other personal rights.” [11]


Document Citation
1 David G. Savage, The Switch in Time: The New Deal Transition, 1937, in Guide to the U.S. Supreme Court 51-52 (5th ed., 2011),
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