Which outcome would forestall Court packing longer? A Trump victory or a Biden victory?
The so-called “Switch in Time that Saved Nine” is a myth. Justice Owen Roberts cast his vote in West Coast Hotel v. Parrish before FDR’s Court-packing scheme was announced. But the conventional wisdom endures to this day. And, consistent with this conventional wisdom, pressure is forming on Chief Justice Roberts to force another “switch” to avert court packing. This “switch” could take the form of Roberts’s modifying his jurisprudence. Or, in a more extreme example, Roberts may resign if Biden wins to save the Court. Critically, however, the Chief should do everything in his power to ensure that the judgments of the Pennsylvania and North Carolina Supreme Courts stand. The specifics really aren’t important.
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