The Switch in Time that Saved Nine?

In 1937, President Roosevelt proposed his notorious “court-packing plan.” It altered the ideological composition of the Supreme Court and singlehandedly changed the course of a nation. What was “the switch in time that saved nine?”

The Four Horsemen vs. The Three Musketeers?

During the 1930s, the Supreme Court contained two voting blocs. The “Four Horsemen,” which consisted of Justices Pierce Butler, James McReynolds, George Sutherland, and Willis Van Devanter, believed in upholding the Constitution and personal freedom. They generally opposed Roosevelt’s New Deal legislation. The Three Musketeers, Louis Brandeis, Benjamin Cardozo, and Harlan Stone, supported the New Deal. Chief Justice Charles Hughes and Justice Owen Roberts acted as swing votes with Hughes often siding with the Musketeers and Roberts usually finding equal ground with the Four Horsemen.

From 1935-1937, the Four Horsemen and Justice Roberts struck down several parts of the highly unconstitutional New Deal. Roosevelt and his supporters despised the Horsemen. However, unless one of them retired, there was nothing he could do to stop them. That is, until he and his attorney general came up with the Judicial Procedures Reform Bill of 1937.

President Roosevelt’s Court Packing Plan?

This was the infamous “court packing plan.” President Roosevelt proposed that he be given the power to appoint a new justice for every sitting justice that continued to serve six months past his or her 70th birthday. The bill would’ve allowed him to add 44 federal judges as well as 6 Supreme Court justices. It encountered tremendous opposition even from Roosevelt’s supporters. The public lost faith in him and a previously supportive Congress began to question if the President was trying to create a dictatorship.

The Switch in Time that Saved Nine?

Less than two months after the Bill was announced, Justice Roberts joined the Three Musketeers and Chief Justice Hughes in West Coast Hotel v. Parrish, which upheld minimum wage legislation. It was a strange vote considering the fact that Roberts had previously been on the other end of several decisions regarding the minimum wage. Since then, it has become known as “the switch in time that saved nine,” alluding to the theory that he switched sides in order to stop Roosevelt from usurping the Supreme Court’s independence.

Guerrilla Explorer’s Analysis

Was the Switch in Time that Saved Nine deliberate? Did Justice Roberts abandon his ideology for political purposes? These questions remain a source of vigorous debate to this day. According to research conducted by Professor G. Edward White, the votes were cast a few days before the court-packing plan was announced. Others point out that Roberts wasn’t a consistent supporter of the Four Horsemen and suggest that his ideology, if indeed he had one to begin with, was actually closer to the Three Musketeers.

On the other hand, there’s some interesting circumstantial evidence to suggest that Chief Justice Hughes engineered the Switch in Time that Saved Nine. Knowing that Roosevelt planned to go after the Supreme Court, Hughes took Roberts under his wing and convinced him to abandon his principles. Also, according to Burt Solomon’s FDR v. The Constitution: The Court-Packing Fight and the Triumph of Democracy, even Roberts’ newly-found allies didn’t understand the Switch in Time that Saved Nine. Harlan Stone, one of the Three Musketeers, wrote a letter to Felix Frankfurter in which he called the Roberts’ vote, “a sad chapter in our judicial history” and referenced “explanations which do not explain.”

The Switch in Time that Saved Nine, as well as the subsequent retirement of Justice Devanter, ultimately led to the defeat of President Roosevelt’s court-packing bill. Still, it could be argued that Roosevelt won in the end as he held the office of President for another eight years, allowing him the opportunity to replace eight Justices and in essence, remake the Supreme Court in his image. But if Roosevelt won, then who lost? Some would say the American people themselves. As Judge Napolitano put it in his book The Constitution in Exile:

“Justice Owen Roberts switched ideological sides and brought a conclusive end to the Constitution as protector of natural rights, the free market, and federalism.” ~ Judge Andrew Napolitano

The Debate that Rocked the World?

It was the most important debate of its time, maybe of all time. It single-handedly changed the world and led to a “war” of monumental importance. So, what was this debate of ideas? The Lincoln-Douglas Debate? The Scopes Monkey Trial? No…it was the Socialist Economic Calculation Debate led by the esteemed Ludwig von Mises.

Ludwig von Mises & Economic Calculation?

By 1920, even ardent admirers of socialism (defined as a society in which the government owns the means of production) knew they had “an incentive problem.” A society where man was supposed to produce “according to his ability” yet only consume “according to his needs,” left that man little reason to work hard or perform unpleasant tasks. Socialists attempted to sidestep that problem by declaring that a socialist society would somehow cause people to become less selfish and more willing to work for the “greater good.”

Then in 1920, Austrian economist Ludwig von Mises published Economic Calculation in the Socialist Commonwealth. In the process he dropped a bomb on the heretofore unchallenged socialists and thus, launched the Socialist Economic Calculation Debate. As Murray Rothbard put it in The End of Socialism and the Calculation Debate Revisited:

“Mises in effect said: All right, suppose that the socialists have been able to create a mighty army of citizens all eager to do the bidding of their masters, the socialist planners. What exactly would those planners tell this army to do?” ~ Murray Rothbard

Ludwig von Mises didn’t bother with socialism’s problematic incentive issues. Instead, he argued that “rational economic calculation” couldn’t exist in a socialist economy. Since the government owned all productive resources, there were no market-generated prices. And without prices, it was impossible to know the best use for a piece of land or machinery. That made it impossible for central planners to make rational economic decisions.

The Socialists Strike Back

The socialists knew they had a problem. In fact, the problem was so serious that it vexed them for almost two decades. However, 16 years later, the so-called definitive response was published by the neoclassical economist Oskar Lange. Although he, along with Abba Lerner, acknowledged that prices were essential, Lange argued that they didn’t have to come from free markets. A Central Planning Board could tell “managers” of socialist companies to fix prices. These prices could then be adjusted by the managers via complicated equations and trial and error. Lange’s reply was widely applauded by his fellow Neoclassical economists and considered a damning refutation of Ludwig von Mises.

Around this time, Friedrich Hayek, a pupil of Ludwig von Mises, joined the debate. Hayek essentially conceded that Lange was correct in theory. However, he argued that the scheme was impossibly complicated and based on a “perfect world” that looked nothing like the real one. There was just too much information and too many equations that would need to be solved on a continuous basis. But Hayek’s arguments were largely dismissed by mainstream neoclassical economists as mere practical problems. And with that, the Austrian economists were considered defeated…at least for the moment.

“…there can hardly be any room for debate: of course, socialism can work. On this, Lange certainly is convincing. If this is the sole issue, however, one wonders whether at this stage such an elaborate theoretic demonstration is in order. After all, the Soviet planned economy has been operating for thirty years. Whatever else may be said of it, it has not broken down.” ~ Professor Abram Bergson, Socialist Economics

The Soviet Union Problem?

In 1991, the Soviet Union collapsed. And afterward, the grim reality of the situation in that country became apparent to the world. The Soviet Union had falsified its GNP and production numbers for decades. Its citizens lived in abject poverty. Black markets and bribery were rampant and indeed, these markets were often the only reason that basic needs were met.

So, who won the debate between the socialists and the Austrians? Well, Hayek’s criticisms of Lange’s theories were valid. But if these problems could be overcome, perhaps through computers, then it stands to reason that “market socialism” could work. However, if that’s the case, then why did the Soviet Union collapse?

Guerrilla Explorer’s Analysis

I would argue that neither Lange nor Hayek really won the debate. Instead, I’d give the honor to the economist who started it…Ludwig von Mises. Lange and his supporters were focused on proving that they could duplicate prices for consumer goods. Hayek agreed this was possible, at least on a theoretical level. But that was never Mises’s key problem with socialism.

The real problem with socialism isn’t finding prices for consumer goods. The real problem is finding prices for land, machinery, and other means of production. In a socialist economy there will be endless transactions of capital goods in which the government is both the buyer and the seller. Without real markets, there’s no way to determine the value of these things. This is, as Murray Rothbard put it, “where calculational chaos…reigns.”

Ironically, the only reason the Soviet Union lasted as long as it did was because of free markets. The Soviet Union wasn’t a pure socialist economy. Instead, it “borrowed” prices for its capital goods from nations with free economies. Without those prices, it would’ve never lasted as long as it did.

In the end, Ludwig von Mises won the debate. In fact, no one ever successfully challenged his original position. Instead, the Socialists seized on Hayek’s contention that market socialism was feasible, focused their attacks on him, and ignored the arguments posed by Ludwig von Mises. Today, the ideological battle between the Austrians and the socialists continues. While neither side has conceded, its difficult to imagine the socialists ever being able to counter the problems posed by the brilliant Ludwig von Mises.