The remand that made the Court expand.

• Author: Stearns, Maxwell L.
• Position: The Sound of Legal Thunder: The Chaotic Consequences of Crushing Constitutional Butterflies

(In a large law school lecture hall, Fall 1999 term)

In today's class, we will focus on a Supreme Court decision that many of you undoubtedly studied in history or in an undergraduate course in Constitutional Law. That case is West Coast Hotel Co. v. Parrish (1937). Parrish is commonly described as "the remand that made the Court expand." While the characterization is literally correct, it fails to capture the several ways in which that decision fundamentally altered our representative democracy.

The facts are simple. The Parrish Court reviewed a state court decision that had distinguished precedents growing out of the famous era associated with Lochner v. New York (1905). During the Lochner era, the Court struck down a variety of state and federal regulations, often including those setting minimum wages or maximum hours in the workplace. Lochner itself became well known because in that decision, Justice Peckham clearly articulated what he viewed as a fundamental right to make contracts and to own property without undue regulatory interference. Against this backdrop, Parrish looked sufficiently run-of-the-mine that contemporaneous commentators questioned why the Court had bothered to granted certiorari. For example, in Adkins v. Children's Hospital (1923) and Morehead v. Tipaldo (1936), the Court had reached nearly identical outcomes. Any differences between those cases and Parrish arguably had less to do with the law or the facts than with the changed political climate.

Before Parrish, President Franklin Delano Roosevelt, increasingly frustrated with the Supreme Court's resistance to New Deal initiatives, upped the ante. Presenting his 1936 reelection as a referendum on the New Deal, FDR began to work through Congress his now famous Court-packing plan. Under that plan, Congress expanded the Supreme Court's membership by one member for each Justice over the age of seventy who was unwilling to step down. Changing the size of the Supreme Court was by no means a new idea, and this was not the first time that Court size had been exploited for political purposes. Following Thomas Jefferson's election to the presidency, Congress decreased the Court's size, preventing him from appointing a successor to Justice Cushing. And the Reconstruction Congress repeated this strategy with President Andrew Johnson, preventing him from appointing successors to Justices Catron and Wayne. But not since George Washington, who appointed a newly created five-, then six-, member Court, has a single President been given as many appointments to the Supreme Court as the Court-packing plan would give FDR. Because six justices were then over the age of seventy, the Court-packing plan quickly transformed the Court from one dominated by a conservative majority of five out of nine into one that...