Path to the Supreme Court
Owen Josephus Roberts, Penn law professor and Philadelphia prosecutor, became a national figure as special counsel — with Atlee Pomerene — prosecuting Teapot Dome, sending Albert Fall to prison as the first cabinet officer jailed for conduct in office. When the Senate rejected John J. Parker in May 1930, Hoover sent up Roberts, and he was confirmed without recorded opposition. For the next decade he was the Court's swing vote — the man whose migrations named an era.
On the Supreme Court
Roberts wrote Nebbia v. New York in 1934 — 'a state is free to adopt whatever economic policy may reasonably be deemed to promote public welfare' — then swung back in 1936, writing United States v. Butler against the AAA with its mechanical instruction to 'lay the article of the Constitution which is invoked beside the statute which is challenged,' and joining Morehead against the minimum wage. In West Coast Hotel he swung again: the 'switch in time that saved nine' — though the vote was cast in conference in December 1936, weeks before Roosevelt unveiled the Court plan, and Roberts's later memorandum explained his Morehead vote on the ground that New York had never asked to overrule Adkins. The last decade was his best: Cantwell v. Connecticut incorporated free exercise; Betts v. Brady (undone by Gideon) marked his caution; and in Korematsu he dissented — the internment was 'a clear violation of Constitutional rights.' He chaired the Pearl Harbor commission, resigned in 1945 — the justices could not agree on a farewell letter after Black (§76) objected to its praise — burned his judicial papers, and finished as dean of Penn Law.
The Voting Record
How Roberts voted in the 2,339 cases the Supreme Court Database records from the 1929 term through the 1944 term, using that database’s classification of each vote as liberal or conservative. The gold tick on each bar is the rate for the other justices sitting on those same cases.
Across the whole career Roberts voted with Hughes more than with anyone else — the same side of the judgment in 78.6% of their 336 divided cases — and with Douglas least, at 25.9%. See this Court →Compared against the 8 colleagues Roberts shared at least 300 divided cases with.
Source · The Supreme Court Database (Spaeth, Epstein, Nelson, Martin, et al.) · how these figures are made
Key Decisions
Nebbia v. New York
1934Holding · New York's milk-price regulation was constitutional; price control is valid if reasonably related to public welfare.
Role · Roberts wrote the 5–4 majority over the Four Horsemen's dissent.
The first crack in the old economic constitution — three years before the switch it foreshadowed.
Read the opinion →United States v. Butler
1936Holding · The Agricultural Adjustment Act's processing tax invaded the states' reserved powers.
Role · Roberts wrote the 6–3 majority; Stone (§73) answered that 'the only check upon our own exercise of power is our own sense of self-restraint.'
The 'T-square' passage became the standard citation for mechanical jurisprudence — usually by its critics.
Read the opinion →West Coast Hotel Co. v. Parrish
1937Holding · Washington's minimum wage for women was upheld, overruling Adkins.
Role · Roberts silently joined Hughes's (§62) 5–4 majority — the 'switch in time' — his vote cast in conference weeks before the Court-packing plan was announced.
The end of the Lochner era; whether Roberts switched under pressure or on the record remains the era's favorite argument.
Read the opinion →Korematsu v. United States
1944Holding · The exclusion of Japanese Americans from the West Coast was upheld, 6–3.
Role · Roberts dissented: the facts showed 'a clear violation of Constitutional rights.'
The Court's swing conservative called the internment what it was — company for Murphy's (§80) and Jackson's (§82) dissents in the case history condemned.
Read the opinion →Go Deeper
Owen Josephus Roberts is the man in the middle of the Court's greatest crisis — the swing justice whose vote in the spring of 1937 became 'the switch in time that saved nine.' A distinguished Philadelphia trial lawyer who had made his name as the government's special prosecutor in the Teapot Dome scandal, Herbert Hoover's 1930 appointee held the balance between the Four Horsemen and the Three Musketeers, and when he moved to uphold minimum-wage and labor legislation just as Franklin Roosevelt threatened to pack the Court, the constitutional revolution turned. He also wrote the free-exercise landmark Cantwell v. Connecticut, chaired the commission that investigated Pearl Harbor, and dissented in Korematsu. He has no full popular biography; Charles Leonard's study of the 1937 switch is the closest thing. Approach him through the Friedman & Israel chapter, the opinions on both sides of his shifting vote, and the book that tries to explain the switch.
The Bookshelf
The best short life of a justice defined by a single vote. The Chelsea House chapter recovers the whole career — the Philadelphia trial lawyer, the Teapot Dome prosecutor whose independence made him famous, the fifteen years on the Court, and the retirement to deaning the University of Pennsylvania law school. It is honest about the thing everyone remembers, the 1937 'switch,' and about the record on either side of it: the conservative who struck the New Deal's farm program and the moderate who upheld state regulation and wrote for religious liberty. The starting point for the Court's most consequential swing vote.
Roberts at the height of his resistance to the New Deal, and the source of one of constitutional law's most mocked passages. Striking down the Agricultural Adjustment Act, he described the Court's role as simply laying the challenged statute beside the Constitution 'to decide whether the latter squares with the former' — the so-called 'T-square' theory that Stone (§73), in dissent, derided as a wooden denial of the judgment judges actually exercise. A year before the switch, it shows the Roberts the New Deal feared. Free online.
Roberts's most durable opinion, and a landmark of religious liberty. For a unanimous Court he held that the Free Exercise Clause of the First Amendment binds the states through the Fourteenth — the free-exercise counterpart to Gitlow's (§72) incorporation of free speech — and reversed the breach-of-peace conviction of Jehovah's Witnesses proselytizing door to door. The case opened the modern law of religious freedom and remains foundational. The swing justice's lasting mark lies here, not in the switch. Free online.
The closest thing to a full study of Roberts, built around the question that shadows him: did he switch in 1937 from principle or from fear of Roosevelt's court-packing plan? Leonard works through the votes and the timing — the crucial conference in West Coast Hotel came before the packing plan was announced, complicating the cynical story — and tries to reconstruct a coherent judicial philosophy beneath the reputation for drift. Essential for anyone who wants to argue the switch rather than just invoke it. KTO Press.
The essential modern frame for Roberts's reputation — Cushman's revisionist case that the 1937 'switch in time' was doctrinal evolution, not political capitulation, which if right acquits Roberts of the charge that defines him. The book to read before deciding what West Coast Hotel meant. Oxford University Press.
The primary document of the switch controversy: Frankfurter's memorial essay publishing Roberts's own posthumous memorandum explaining his 1937 votes. Every account of the constitutional revolution starts, or quarrels, with this text.
The unsettling rejoinder: Ariens's argument that Frankfurter shaped — perhaps invented — the Roberts memorandum narrative to serve his own account of 1937. Read after the Frankfurter piece; together they make this little shelf an argument about how judicial history gets written.
The standard modern biographical encyclopedia of the Court: a signed essay on each of the 110 justices from Jay to Alito, alphabetically arranged, by a named scholar or journalist. Length tracks reputation — two pages for Thomas Johnson, three for Woods, eleven for Holmes — which is itself a rough map of who the literature has bothered with. It is not a substitute for a biography, and for the justices who have never had one it is often the most careful short account in print. Borrow it free at the Internet Archive.
The one-volume reference on the Court: more than a thousand signed entries on cases, doctrines, institutions and the justices, current to 2005. Cases and people share one alphabet, so a citation can be followed without changing volumes, and the biographical entries are short, written by specialists, and better than a longer sketch at carrying the historiography — what the argument about a justice currently is. Borrow it free at the Internet Archive.
The Reading Path
A researched route through the literature — in order.
- 1.The Friedman & Israel chapter — for the trial lawyer and Teapot Dome prosecutor turned swing justice
- 2.United States v. Butler — for the Roberts who fought the New Deal — and the 'T-square' line
- 3.Cantwell v. Connecticut — for his lasting mark — free exercise against the states
- 4.Leonard, A Search for a Judicial Philosophy — for the argument over the switch of 1937
Where the Papers Are Kept
Roberts asked that most of his papers be destroyed at his death, and the surviving record is thin — scattered material at the University of Pennsylvania and in his colleagues' collections. The gap is part of why the 1937 switch remains so hard to resolve and why no full biography exists. Visit →
Online Resources
Ideas for Further Research
- The switch in time. Roberts's 1937 move from the conservative bloc to uphold economic regulation is the most argued-about vote in the Court's history. Marshal the evidence — the conference dates, the pending packing plan, Roberts's own later memorandum — and take a side: was it principled evolution, political capitulation, or a coincidence the legend has overwritten? The destroyed papers make the case a study in history from silence.
- The justice as investigator. Roberts made his name prosecuting Teapot Dome and later chaired the commission that investigated the Pearl Harbor disaster — a justice repeatedly pulled into the executive's fact-finding. Set his commissions beside Jackson at Nuremberg and Joseph Lamar's (§64) 1914 mediation, and ask what the Court gains and loses when its members serve the political branches off the bench.
- Free exercise begins here. Cantwell v. Connecticut is Roberts's real monument — the case that made the Free Exercise Clause binding on the states and launched the modern law of religion. Trace the line from Cantwell through the mid-century free-exercise cases to Employment Division v. Smith and the religious-liberty fights of today, and ask why the swing justice's most lasting work is the part no one remembers. Seat lineage: Sanford §72 → Roberts → Burton §84.