Supreme switch

(Correction: Because of a reporting error, an article in the Dec. 4 Ideas section about Franklin Roosevelt and the Supreme Court in 1937 misspelled the surname of Justice Benjamin Cardozo.)

QUIETLY, SOME legal historians have been chipping away at one of the key anecdotes of 20th-century history: Franklin Roosevelt's showdown, in 1937, with the ''nine old men'' of the Supreme Court, and the famous ''switch in time that saved nine.'' The academic debate over what happened-or didn't happen-in 1937, says Laura Kalman, a history professor at the University of California at Santa Barbara, ''is really a debate about whether judges are moved by law or politics.'' It's a timely subject, given the upcoming confirmation hearings for Samuel A. Alito Jr., President Bush's nominee to replace Justice Sandra Day O'Connor, the swing vote on the court.

The conventional version of the '37 tale, a staple of high school and undergraduate history courses, goes something like this: Beginning in 1905, with the Lochner v. New York decision, which struck down a law setting maximum working hours for bakers, the court read into the Constitution a rigid laissez-faire economic worldview. That view stood for 30 years. In the throes of the Depression, as Roosevelt pushed his ambitious legislative agenda to revive the economy, the court struck down law after law, rejecting minimum-wage legislation and gutting the National Industrial Recovery Act and the Agricultural Adjustment Act. Unions and liberal newspapers hammered the court; farmers hanged the justices in effigy.

Then, in early 1937, fresh from his landslide reelection victory, Roosevelt pulled out a club: He proposed to ''pack'' the court-that is, to add one new justice for each one over 70, on the flimsy excuse that the nine justices were overworked (a plan made possible by the fact that the Constitution does not specify how many justices the court should have).

The court caved. In March 1937, less than a year after striking down a very similar law, the justices upheld a minimum-wage law in Washington state, in West Coast Hotel Co. v. Parrish. The key vote, the so-called ''switch'' that ''saved'' the nine, came from Justice Owen Roberts, a frequent ally of the court's four hard-line conservatives. The way was now clear for the Fair Labor Standards Act and Social Security. By 1938, the court had largely removed itself as a block to national economic policy; the world was made safe for the New Deal.

...

That's the story, anyway.

G. Edward White, a law professor and historian at the University of Virginia, calls the tale ''a distortion of the historical record.'' ''The court-packing story is based on a pretty limited base of research,'' he said in an interview. And, he added, ''it's winner's history,'' appealing to people-like liberal historians-who instinctively cast Roosevelt as a hero who imposed his righteous will on hack political judges. The standard narrative, however, has also been accepted by conservatives who think this was the moment constitutional law went off the rails. (White calls himself a liberal Republican but says he is apolitical as a scholar.)

White's revisionist take appears in the latest issue of the American Historical Review, the flagship journal of the American Historical Association, as part of a forum on ''The Constitutional Revolution of 1937.'' The forum pits White against William E. Leuchtenburg, an emeritus professor of history at the University of North Carolina and author of ''The Supreme Court Reborn'' (1995), a classic account of the episode, while UC Santa Barbara's Kalman contributes an essay offering a synthesis of the two views. Kalman also observes that the contemporary Supreme Court has, after 55 years, begun chipping away at some of the precedents in the 1930s-arguing that the Constitution provides more of a check on congressional action than the New Deal-era court believed it did-another reason for the debate's currency.

Even though the revisionists-including Barry Cushman, a colleague of White's at Virginia-have been writing for a dozen years, their work ''came as something of a surprise to many historians,'' writes Alan Brinkley, provost at Columbia University and a prominent historian himself. Most have tended to accept the ''reasonably simple political explanation'' for the court's shift.

So, if a showdown with FDR wasn't the cause, how did the court get from banning maximum-hours and minimum-wage laws to embracing them-a remarkable and historic about-face? White and other revisionists believe that constitutional law was evolving, gradually and episodically, on many fronts between 1900 and 1940-from the First Amendment (once thought not to apply to states) to the president's power to make foreign policy. The court's jurisprudence on economic policy, White says, was ''beginning to disintegrate'' well before 1937, collapsing of its own weight.

In the economic arena, White says the court, on its own, began to realize it could not oversee economic regulation case-by-case forever. It had been making increasingly arcane, fussy distinctions: affirming maximum-hours laws for miners and women, for example, at the same time it denied such protection to bakers. Moreover, decisions against the New Deal programs were sometimes close. And in 1934, well before his famous switch in time, Justice Roberts himself wrote a majority opinion permitting New York to regulate milk prices (in Nebbia v. New York)-hardly an anti-New Deal stance.

And focusing on the ''hammering'' the court took in 1936 and 1937 is also misleading, White thinks. Lacerating criticism ''has been a recurrent phenomenon going back at least to Thomas Jefferson's complaints against the Marshall Court,'' he writes. Judges have always taken heat.

All sides in the debate agree on one fact: The votes in the fateful 1937 West Coast Hotel case, finally upholding a key minimum-wage law, had already been counted before the court-packing plan was announced, although the opinions were written afterward. True, the threat was in the air, but President Herbert Hoover's appointment of three relatively liberal justices-Roberts, Charles Evan Hughes, and Benjamin Cordozo-had far more to do with the constitutional revolution than anything Roosevelt did, the revisionists conclude.

Nevertheless, in a countering argument, Leuchtenburg presents compelling circumstantial evidence for the standard story line. Nebbia v. New York, which White holds up as a sign of changes in motion, changed nothing, Leuchtenburg says: In the 13 months following it, the court rejected ''more important laws, federal and state, than at any time in its over two centuries' history,'' including cornerstones of the New Deal.

And yet, everything did change after 1937. Felix Frankfurter, then a professor at Harvard but soon to join the court, himself called Roberts's move ''a somersault.'' Not long before the fateful switch, Roberts and Chief Justice Hughes spoke for hours at Roberts's Pennsylvania farm-was it about how to save the court from public ignominy with a strategic retreat? We may never know.

Both Kalman and Brinkley, in their essays, say the two sides are reconcilable. Doctrine was evolving-and FDR gave it a push. But perhaps, like Bush v. Gore, the decisions from 1937 are destined to remain a Rorschach test. Were they craven or principled? (Or at least justifiable?) It depends on whether you see judges as something more than merely well-educated politicians in robes.

Christopher Shea's Critical Faculties column appears in Ideas biweekly. E-mail critical.faculties@verizon.net.