In President Franklin D. Roosevelt’s first-term, a U.S. Supreme Court majority with rigidly restrictive notions of legislative power struck down numerous federal New Deal and progressive state laws as unconstitutional.

Following his thumping reelection in 1936, President Roosevelt thus proposed to “pack” the Supreme Court, expanding it with up to six new justices who would become part of a new, more deferential majority.  The Supreme Court promptly changed course in a number of pending, high-profile cases, announcing broader constitutional interpretations of federal and state government legislative powers and taking the wind out of the president’s proposal to enlarge it.  The Court’s change was, someone quipped in 1937, the “switch in time that saved nine.”

Who was the quipster?  This was asked even in 1937, as the “switch in time” line spread widely.  Various theories have been debated ever since.  No one, until now, found the answer.  Professor John Q. Barrett has discovered that the line came from Cal Tinney, a noted newspaper and radio humorist from Oklahoma.  Cal Tinney published his quip in the New York Post in April 1937, and it spread from there so fast that, apparently, people forgot to give him credit, and soon no one knew that he deserved it.

Cal Tinney (1908-1993)

As a tribute to Cal Tinney’s Oklahoma roots and his famous (in his time, at least) Oklahoman persona, Professor Barrett will publish his article “Attribution Time: Cal Tinney’s 1937 Quip, ‘A Switch in Time’ll Save Nine’”, this fall in the Oklahoma Law Review.

Professor Barrett’s article can be found here.  Below is the abstract:

In the history of the United States Supreme Court, 1937 was a huge year—perhaps the Court’s most important year ever.  Before 1933, the Supreme Court sometimes held that progressive policies enacted by political branches of government were unconstitutional. Such decisions became much more prevalent during President Franklin D. Roosevelt’s first term, 1933-1936. In those years, the Court struck down, often by narrow margins, both federal “New Deal” laws and state law counterparts that sought to combat the devastation of the Great Depression.

Then President Roosevelt, in early 1937, proposed to “pack”—to enlarge—the Court, so that it would become supportive of New Deal laws.

Within weeks, the Supreme Court changed course, announcing broader constitutional interpretations of federal and state government legislative powers.

The Court’s switch took the air out of the Court-packing balloon. The change was—and here is the quip that everyone knows—“the switch in time that saved nine.”

That line appeared in 1937. It was repeated by many, especially in Washington. It has been quoted ever since. Just who coined it has been debated and never established.

Until now.