When Did the Switch in Time Actually Occur?: Re-Discovering the Supreme Court's Forgotten Decisions of 1936-37

Abstract

This article offers insights into the Court-packing controversy of 1937 by analyzing the U.S. Supreme Court's decisions between the election of 1936 and President Roosevelt's announcement of his Court-packing proposal in February 1937. These forgotten decisions, which scholars have either ignored or neglected to consider in their political context, sustained the constitutionality of a wide range of economic regulatory legislation and helped to expand personal liberties. Although this article contends that these decisions were too little and too late to discourage Roosevelt from proceeding with his Court-packing plan, the article argues that these decisions went far toward restoring public confidence in the Court and helped to turn public opinion against the Court-packing bill even before the Court's so-called switch in time during the spring of 1937. The article, which devotes special attention to the voting patterns of Chief Justice Hughes and Justice Roberts in these decisions, also argues that the election had little direct impact on these decisions, but that general changes in attitudes toward economic regulation may have influenced the Court.