Mulford v. Smith
Justice Roberts Reverses Himself
Owen J. Roberts had often been a swing vote on the Court during the early years of the New Deal. From 1933 to 1937, the Court was dominated by justices who were holdovers from earlier, highly conservative Courts that believed, above all things, in the laissez faire approach to economic matters. That is, they believed that the federal government should not interfere in the marketplace. With the onset of the Great Depression in 1929, however, this became a dangerous attitude--at least in the eyes of Roosevelt and other New Dealers. For the first five years he was in office, Roosevelt found the Supreme Court opposed to nearly every major piece of legislation he proposed.
One of these rejected statutes was the Agricultural Adjustment Act of 1933, which the Court struck down by a vote of 6-3 in United States v. Butler, for which Justice Roberts wrote the majority opinion. The next year, the standoff between Roosevelt and the Courts reached a climax when the president proposed a plan to "pack" the Court with justices who would pass his New deal legislation. In 1937--perhaps partly in response to this threat--Roberts softened his attitude towards the New Deal, and in West Coast Hotel v. Parrish (1937), he joined the 5-member majority to become the deciding vote upholding a state minimum wage law modeled on New Deal principles. Thus he performed what has come to be known as the "switch in time that saved nine"-- nine justices, that is.
Thereafter, Roberts--and the Court--consistently voted to uphold major New Deal legislation. No more vivid illustration of his reorientation exists than Mulford, in which Roberts, again writing for the Court, now upheld the second Agricultural Adjustment Act as an appropriate exercise of Congress's commerce power:
Any rule, such as that embodied in the Act, which is intended to foster, protect, and conserve . . . commerce, or to prevent the flow of commerce from working harm to the people of the nation, is within the competence of Congress . . . The motive of Congress in exerting the power is irrelevant to the validity of the legislation . . . The provisions of the Act under review constitute a regulation of interstate and foreign commerce within the competency of Congress under the power delegated to it by the Constitution.
Roberts, and a majority of the members of the Hughes Court, now admitted that they were confronting an economic emergency that was national in scope and required national legislative remedies. Their weapon of choice in combatting the Depression would remain Congress's power to regulate interstate commerce. Holdouts remained on the Court--James C. McReynolds had the dubious distinction of never voting to uphold New Deal legislation--but Roberts was not among them.