The Switch in Time that Saved Nine: How FDR Almost Packed the Supreme Court

The Switch in Time that Saved Nine

Nominating Justices

You’ve heard that a stitch in time can save nine, right? But have you heard of the switch in time that saved nine? As in the switch that ensured there would continue to be nine US Supreme Court Justices?

We take for granted that there are nine Supreme Court Justices, although until the recent appointment of Neil Gorusch, we have only had eight, due to the Senate’s refusal to vote on Merrick Garland’s nomination (the absence of a ninth justice lasted for about a year). The fact that we have nine justices on the Supreme Court, however, is not outlined in the constitution. So, if a president were so inclined and congress approved, they could nominate as many Supreme Court Justices as they wish.

Before the switch in time that saved nine we nearly had 15 Supreme Court Justices. Here’s how it almost happened.

West Coast Hotel Co. v. Parrish

The case involved Elsie Parrish, a chambermaid who was working at the Cascading Hotel in Wenatchee, Washington, and her husband, who also worked for the hotel. Parrish sued for the difference between the $14.50 per week of 48 hours established as a minimum wage by the state of Washington and the amount they were being paid. The Washington State Supreme Court heard the case on direct appeal and overturned the lower court ruling and found in favor of the West Coast Hotel Co.

West Coast Hotel Co. v. Parrish made it to the Supreme Court where the liberal justices, Louis Brandeis, Benjamin N. Cardozo, and Harlan Fiske Stone, known as the “Three Musketeers,” and the conservative justices, James Clark McReynolds, George Sutherland, Willis Van Devanter, and Pierce Butler, known as the “Four Horsemen,” vehemently disagreed about the constitutionality of the minimum wage law. This left the two swing votes on the court: Associate Justice Owen J. Roberts and Chief Justice Charles Evans Hughes.

The Judicial Procedures Reform Bill of 1937

As a number of parts of the New Deal had been struck down, FDR was tiring of watching his most important piece of legislation of the era being slowly chipped away at. So, in 1937, FDR proposed the Judicial Procedures Reform Bill of 1937, which would have allowed the president to appoint up to 6 more justices, making it possible that the Supreme Court would have up to 15 Justices. Political opponents of FDR accused him of attempting to pack the court, and, indeed, it would be difficult to see this proposal any other way.

The Switch in Time That Saved Nine

Ultimately, it was clear that the “Four Horsemen” were going to vote to strike down the minimum wage law and that the “Three Musketeers” were going to vote to uphold it. At first it seemed as though Roberts was going to vote with the “Four Horsemen,” but he ended up siding with the “Three Musketeers” and Chief Justice Hughes. Subsequently, Roberts voted with Hughes and the “Three Musketeers” to uphold other parts of New Deal legislation.

Historical Debate

Scholars still do not agree as to whether or not it was FDR’s proposed legislation that changed Roberts’ mind. Indeed, there is some historical evidence that perhaps Roberts was going to side with Parrish anyway. Upon Roberts’ death, his papers were burned. So, ultimately, there is no way of knowing whether or not Roberts changed because of the Judicial Procedures Reform Bill of 1937.

Either way, it has created an interesting variation on the old saying “A stitch in time saves nine.”