The Myth of The Switch In Time

Libertarians and conservatives often accuse the Supreme Court of dramatically shifting constitutional law in the famous “Switch in Time,” as the result of political pressure brought by President Franklin Roosevelt. This narrative, however, is a little too neat to be true. In fact, as I argued recently in National Review, the major step toward the denigration of economic liberty had already been taken three years earlier, when the Court created the “rational basis” test in Nebbia v. New York.

It’s certainly true that the 1930s (what Auden called “a low, dishonest decade”) saw a profound shift in American constitutional law, but that change is best seen as the climax of a decades-long struggle by Progressives to change constitutional doctrines via interpretation. The Progressives, in fact, were quite explicit about this effort. In a 1924 profile of Oliver Wendell Holmes, Dorsey Richardson wrote that

Holmes came to the bench in 1882, when the transition from individualism to collectivism in England was in progress…. [He] was too learned in the history of the law to be blind to the fact that the socialistic trend in American political thought would finally demand extensive paternal legislation in no uncertain terms; and that when this demand became strong enough serious consequences might follow the failure of the courts to acquiesce…. The necessity for the establishment of a benevolent attitude towards social reform was apparent…[yet] the Constitution was regarded as almost immutable…. No further [Amendment] might be looked for short of a popular upheaval. Next to amendment of the Constitution, the most feasible means of giving validity to new principles was to change the interpretation of the provisions under which the inevitable social legislation would be held invalid. “Liberty of contract” and the broad powers of review assumed by the courts under the 5th and 14th Amendments were the elements which barred the way to reform, — and it is against these interpretations that Justice Holmes’ most significant attacks have been directed.

Holmes and his admirers led an ideological assault on economic liberty that triumphed between 1934 and 1938. While Roosevelt’s “court packing plan” certainly played a role in that shift — and historians such as William Leuchtenburg argue that it was a very important role — I think legal historians like G. Edward White are more convincing in their argument that the “Switch” should be seen as the end point of a longer process of doctrinal change.

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