Another Switch in Time?

Jennifer Rubin and Kathleen Parker’s columns today have made me think of another Justice Roberts:  Justice Owen Roberts, who is famous for having switched his vote to uphold the New Deal programs in West Coast Hotel Co. v. Parrish, the 5-4 decision by the Supreme Court upholding the constitutionality of minimum wage legislation, which overturned an earlier decision in Adkins v. Children’s Hospital.   The decision in West Coast Hotel was handed down after President Roosevelt had announced his “court-packing scheme” that would have expanded the number of justices to compensate for the conservatives who had invalidated New Deal legislation.  For this reason, the change of heart by Justice Owen Roberts has long been called the “switch in time that saved nine” justices.  And many have long asserted or assumed that Owen Roberts’ switched his vote in response to the political pressure brought to bear on the Court by the President and the threat of his proposal.

In his 1998 book, Rethinking the New Deal Court, legal historian Barry Cushman has called this conventional wisdom into question by noting (among other reasons) that, because the conference vote on West Coast Hotel took place before FDR announced his plan, Owen Roberts’ vote could not have been a product of the threat.  Cushman contends instead that the Owen Roberts’ change of heart was motivated, not by politics, but instead by a growing dissatisfaction with the workability of the Court’s Due Process doctrines.  But Cushman’s is probably still the minority view.  Fairly or not, Justice Owen Roberts will likely forever be known as the justice who succumbed to political pressure to change his vote.

Rubin and Parker’s columns made me wonder whether President Obama, Senator Leahy, and pundits like Jeff Rosen have now put Chief Justice John Roberts in the same position as FDR put Justice Owen Roberts.  Had the Chief Justice already provided the fifth vote in conference to uphold the ACA, and had these critics quietly respected the deliberations of the Court after the case was submitted, nearly everyone would have accepted that Chief Justice Roberts’ decision to uphold the ACA was motivated by legal rather than political concerns.  Now, however, if the Chief Justice rules to uphold the ACA after all these nonlegal pleas and threats, he will always be suspected by both supporters and opponents of the ACA of having changed his vote in response to this political pressure.  As with Justice Owen Roberts’ vote, the supporters of the law will cheer and the opponents will complain, but both groups will have reason to believe that Chief Justice Robert’s decision reflected political considerations rather than his considered legal judgment in a close case.  And, because Supreme Court deliberations are secret, he cannot defend himself by revealing that he did not in fact change his vote after conference.

Years from now, some historian may try to rescue Chief Justice Roberts’ reputation as Barry Cushman tried to rescue Owen Roberts.  But until then, thanks to the President, Senator Leahy and the pundits and professors who have so loudly called upon the Chief Justice to decide this case politically or risk the legitimacy of the Court, should he now decide to uphold the ACA, he will always be suspected of being the second Justice Roberts to switch in time.