The Turn of 1937

By early 1937 the Court had struck down major New Deal laws in the narrow era. On February 5, 1937, President Franklin D. Roosevelt proposed a bill letting him appoint an additional justice for each sitting justice over 70 who did not retire, up to six. Within weeks the Court changed course. Whether the plan caused the change is one of the most argued questions in American legal history.

Why it works

The new approach rests on a practical point: in a national economy, production and commerce are linked. If Congress may protect interstate commerce, it must be able to reach activities whose disruption would burden that commerce, even if they take place inside one plant. The question became one of degree: a close and substantial relation to interstate commerce. That logic carried the Court to Darby and then to Wickard.

Key idea

NLRB v. Jones & Laughlin Steel (1937), 5 to 4, upheld the Wagner Act's reach to a steel company whose labor disputes would substantially affect interstate commerce. United States v. Darby (1941), unanimous, upheld federal wage and hour rules and overruled Hammer v. Dagenhart.

The turn, in order.

Worked example: Did the court plan cause the switch?

Lay out the evidence on each side.

For a link: the turn came within weeks of the plan; Justice Owen Roberts, who had joined narrow-era majorities, joined the new ones; the phrase "the switch in time that saved nine" was coined then.
Against a simple link: West Coast Hotel (decided March 29, 1937) was argued in December 1936, before the plan was announced; doctrine had been shifting in some earlier cases; and the plan failed in the Senate in July 1937.
Lasting change also came from appointments: Roosevelt named several justices from 1937 on, beginning with Hugo Black after Justice Van Devanter retired.

Answer: Historians disagree. Most agree the plan, public opinion, the 1936 election and new appointments all played parts; how much each mattered is debated.

Worked example: Overruling Hammer

How did Darby treat the argument that a ban on shipping goods was really aimed at regulating production?

Hammer had looked behind the law to its purpose.
Darby said Congress's motive does not matter if the regulation is within the commerce power.
It adopted Holmes's Hammer dissent: the power to regulate commerce includes the power to prohibit it.

Answer: Motive no longer decides the question. Hammer was "overruled."

Common mistake

Crediting the change entirely to the court-packing plan. Jones & Laughlin was decided while the plan was pending, and historians debate how much it mattered; West Coast Hotel was argued before the plan; new appointments soon reshaped the Court. Check the dates before drawing a cause-and-effect conclusion.

The 1937 turn is also the start of deferential review of economic laws, the subject of Rational Basis Review.

This is an educational course, not legal advice.

The Turn of 1937

Practice

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Sources and further reading