The Roberts Shift

In 1930’s Depression era America our Supreme Court spent five years resisting New Deal legislation proposed by President Roosevelt and legislated by a Democratic Congress.

In his definitive volume A History of the Supreme Court, historian Bernard Schwartz documents the Court’s rejection of progressive New Deal Acts:

“The effort to move the nation forward came up against the restricted view of government power still held by the Supreme Court. The result was a series of decisions that invalidated most of the New Deal legislation. In 1935 and 1936 cases, the Supreme Court struck down two key New Deal antidepression measures, the National Industrial Recovery Act and the Agricultural Adjustment Act.”

Beginning with the stock market Crash on ’29, our nation’s struggles against economic disaster had become more and more desperate. More and more Americans were out of work, losing resources, even starving. By 1937, the Supreme Court changed its tune, relented, and began approving the Congress’ New Deal interventions to restore, at least minimally, some measure of prosperity.

Justice Owen Roberts was the “swing vote” that turned the tide of Court resistance to approval of Congress’ relief measures.

In his 1993 History, Bernard Schwartz identifies Justice Roberts’ early view of an activist Presidential/Congressional intervention during the Depression time of trouble.

“It was his key vote that enabled the conservative bloc to prevail in the decisions striking down . . . important New Deal measures.”

But Justice Roberts’ changing point of view later became the linchpin upon which the Court began reversing its earlier resistance against Congressional activism. Bernard Schwartz identified this shift when he wrote:

“It was Justice Roberts’s vote as well that enabled . . . Chief Justice (Hughes) to bring about the great jurisprudential reversal that took place in 1937.”

Maybe my assessment of complex legal information is too simplistic when I read about Justice Roberts’ shift: He changed his mind.

Somewhere back in time, some wise person said that history does not repeat itself, but it rhymes.

Now, eighty-three years after Justice Owen Roberts’ cast his votes to turn the tide of governmental relief intervention, we may have a “rhyming” historical situation, with a different Justice Roberts.

In our present circumstances, Chief Justice John Roberts, generally regarded — like the earlier Justice Roberts — as conservative, and having been appointed — like the earlier Justice Roberts — by a conservative Republican President (Bush) . . . surprised everyone in 2012 with his “swing vote” on the Affordable Care Act.

In 2012, Chief Justice Roberts chief sought a way to preserve the Affordable Care Act on some constitutional grounds, by calling it a tax.

At least that’s my oversimplified citizen’s-view of what he did. The outcome is that we still have the Affordable Care.

Like our present-day Justice Roberts, the 1930’s Justice Owen Roberts turned the tide of some important relief legislation, by taking a different — perhaps more compassionate — view of a progressive President (Obama’s) partnering with a Democratic Congress to make life a little easier for Americans during hard times.

Thus we see that history does sometimes rhyme, as Roberts rhymes with Roberts.

Glass half-Full



Author and Publisher of 4 novels: Glass half-Full, Glass Chimera, Smoke, King of Soul; 1200+ blogs, musician, songwriter, poet, 43-year husband and father.

Get the Medium app

A button that says 'Download on the App Store', and if clicked it will lead you to the iOS App store
A button that says 'Get it on, Google Play', and if clicked it will lead you to the Google Play store
Carey Rowland

Author and Publisher of 4 novels: Glass half-Full, Glass Chimera, Smoke, King of Soul; 1200+ blogs, musician, songwriter, poet, 43-year husband and father.