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(Reprinted from the Glens Falls Post-Star, July 21, 2005)

Roberts could change history

By Beau Breslin

Almost 70 years ago, a single justice of the United States Supreme Court altered the entire trajectory of American history. The same may be happening today.

The year was 1937, and the country was in the throes of the depression. Led by FDR and a Democratically controlled Congress, the federal government had introduced a wide variety of policies aimed at economic recovery. Price fixing, maximum hour legislation, and minimum wage laws were important components of a larger initiative—coined the "New Deal"—whose goal was to directly combat the effects of America's economic decline.

The problem was that not everyone bought into the principles of the New Deal. For nearly a decade, a slim but powerful majority of the United States Supreme Court had invalidated many of the most critical New Deal measures. This conservative majority had consistently argued that regulations interfering with particular business relationships—the relationship between employers and employees, for example—violated certain basic constitutional provisions.

One member of that slim majority was Justice Owen Roberts. A Pennsylvanian nominated to the Supreme Court by Herbert Hoover in 1930, Roberts had, to that point, enjoyed a mostly unremarkable seven-year career on the High Court. He was not known for his intellect; Justice Brandeis was considered the intellectual giant on the Court. Nor was he known for his charisma; that title went to Oliver Wendell Holmes. Instead, he was viewed as a fairly consistent conservative voice on a deeply divided court. More often than not, he provided the critical fifth vote rejecting FDR's New Deal policies.

Then, inexplicably, everything changed.

Justice Roberts switched his vote. Almost overnight, a profoundly antagonistic court bent on derailing the president's desperate measures became a deeply sympathetic court. In the blink of an eye, a conservative majority became a liberal majority.

Justice Roberts' decision to abandon the opponents of FDR's regulatory scheme and join forces with the liberal wing of the Supreme Court was noteworthy on a number of different levels. It has famously been labeled "the switch in time that saved nine." But more importantly it represents a critical moment in the history of the United States.

It placed the country on a different path, a path to economic recovery. What was viewed at the time as a relatively innocuous change in judicial voting patterns quickly became a revolution. In hindsight, perhaps no one was more responsible for ushering in an entirely new historical era than Justice Owen Roberts.

Today, we are poised for an equally revolutionary "switch" by a jurist named Roberts.

By all accounts, there is little that Justice Owen Roberts and Judge John G. Roberts, President Bush's nominee to replace Justice Sandra Day O'Connor on the Supreme Court, share in common beyond a surname. But what they do share in common is monumental: the capacity to alter entirely the course of American history.

Speculation abounds as to why President Bush ultimately selected Judge Roberts from an impressive list of candidates. But surely the major reason he settled on the D.C. Court of Appeals judge is that Roberts represents what O'Connor was not—a consistently conservative voice on the major issues of the day.

So often Justice O'Connor disappointed conservatives by voting with the liberal wing of the current Court to uphold the central holding in Roe v. Wade, approve of affirmative action programs, maintain an impregnable wall of separation between church and state, and so on. If confirmed, Justice Roberts is far less likely to carry on the legacy of Warren Court liberalism than was Justice O'Connor. Indeed, those cases in which Justice O'Connor represented the vital fifth vote in a fragile liberal majority are all, once again, up for grabs.

Judge Roberts has carefully, and impressively, scripted his career to avoid any of the pitfalls that could easily derail his appointment.

When he has written, he has been careful to remind observers that as a lawyer his job is to advocate for his client regardless of his own personal opinion. When he testified before the Senate Judiciary Committee during his 2003 confirmation hearings, he was careful to point out that as a judge on a lower federal bench his responsibility is to follow Supreme Court precedent whether he likes it or not. But make no mistake, if he is confirmed as the 109th Supreme Court Justice his presence on the High Court will alter the constitutional landscape for many years to come.

Like the "switch in time that saved nine," the switch from Justice O'Connor to Judge Roberts will likely place the country on an entirely different path.

The dominant constitutional issue will not center on economic freedoms, as it did in the mid-'30s, but rather on those personal freedoms that are so contested in contemporary America. The right of women to exercise their privacy by seeking to terminate their pregnancies or the right of "enemy combatants" to consult an attorney if detained by the federal government are the hot-button issues of the day. And yet the constitutional moment America faces is no less monumental than it was seven decades ago.

Justice Owen Roberts altered the course of American history by switching his vote in 1937. The potential is very real that the second Justice Roberts will have an equally powerful impact on the direction of this country.

Beau Breslin, 39, is associate professor and chair of the Department of Government at Skidmore College in Saratoga Springs.

A nationally recognized specialist in constitutional law and civil liberties, he published "The Communitarian Constitution" in 2004. The book examines the tensions between individual rights and the good of the community. He also is the author of numerous articles and papers on the Constitution and the judiciary.

Professor Breslin received his bachelor's degree from Hobart College in Geneva, N.Y. and his master's degree and Ph.D. in political science from the University of Pennsylvania. He lives in Saratoga Springs with his wife, Martha, and their daughter, Molly.

©2005 the Post-Star

Creative Thought Matters.
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