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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.
