You need to travel all the way back to 1937 to understand what Roberts might be thinking. Back then, Democratic President Franklin Delano Roosevelt had just had a historic landslide win in the 1936 election, defeating his Republican opponent, Alf Landon, by 24 points and a 523-to-8 margin in the electoral college. Democrats gained seats in the House and the Senate for a fourth straight election and held a 334-88 majority in the House and a 74-17 seat lead in the Senate. Two small pro-Roosevelt parties held another 13 seats in the House and three in the Senate. The people had spoken, and they wanted more of FDR’s New Deal.
Roosevelt was being stymied, however, by a Supreme Court dominated by five aging conservative justices. Those justices had struck down his National Recovery Administration and parts of his Agricultural Adjustment Act — two key cogs in his New Deal — as unconstitutional. Buoyed by his overwhelming popular mandate, Roosevelt proposed a bill allowing a president to appoint a new Supreme Court justice for every sitting justice who was both older than 70 years and 6 months old and had served for 10 years. That would have allowed him to appoint as many as six new justices in 1937, providing a clear supermajority to back New Deal measures.
One justice, Owen Roberts, saw the writing on the wall. He had opposed the NRA and AAA but switched to back a minimum wage law in a decision released only three weeks after Roosevelt announced his court-packing plan to the public. This unexpected reversal became known in legal lore as “the switch in time that saved nine,” a prudential move that arguably sapped public enthusiasm for Roosevelt’s gambit. Justice Willis Van Devanter, another aged New Deal opponent, retired a few months later, giving Roosevelt his first court appointment. Both decisions helped prevent the court-packing scheme from becoming law, and this continued the tradition of keeping the number of justices at nine.
Democratic furor over Justice Brett M. Kavanaugh’s confirmation has helped reignite the interest in packing the court. Liberals started to call for adding justices to the court almost as soon as Kavanuagh took his seat. By March 2019, leading Democrats were endorsing the scheme. While the presumptive Democratic nominee, Joe Biden, has said he opposes the idea, Biden has been known to change his stances before. With polls increasingly showing Democrats likely to regain the White House and take back control of the Senate, Roberts would have to be living in a cave not to see that court packing could happen soon.
Hence, perhaps, his recent votes. He joined the majority in the case extending anti-discrimination protections to the LGBT community through the Civil Rights Act of 1964. He also cast the deciding votes in the case that prevented President Trump from repealing the Obama-era Deferred Action for Childhood Arrivals program and in Monday’s case overturning a Louisiana law requiring abortion providers to have admitting privileges at a hospital. His vote in the latter case came even though he had voted against overturning a similar law just a few years earlier. His concurring decision in this case argued that the previous case provided binding precedent even though he still thought it was wrongly decided. This cannot bode well for conservative hopes that Roberts would overturn the nearly 50-year-old precedent in Roe v. Wade.
In making these decisions, the chief justice, like the previous Justice Roberts more than 70 years ago, switched on key cases important to the progressive social activists who sparked the modern court-packing movement. By switching before the election, Roberts could be thinking that he has done so “in time to save nine” — removing the pretext for packing the court.
We’ll see. The court is much more of a political issue today than it was in the 1930s. Progressives could be wary of giving Roberts a chance to switch back once the political coast is clear. There’s also the lingering anger among liberals over Republican refusal to even hold a hearing on President Barack Obama’s nomination of Judge Merrick Garland in 2016 to replace the late conservative justice Antonin Scalia. Should Democrats retake the Senate in the fall, they could decide to use their new majority to add progressives to the court rather than risk that happening again should the GOP retake the Senate after the 2022 midterms.
Roberts might think his middle-of-the-road position will preserve the court’s independence. But the old saying of Texas progressive politician Jim Hightower may yet prove true: “There’s nothing in the middle of the road except yellow stripes and dead armadillos.”
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