'Confidential' interview with Justice Roberts discovered in BYU Special Collections

PROVO — "Confidential."

BYU professor Ed Carter had felt excitement and curiosity with each box he opened in the Special Collections section of the campus library, two floors below ground, but he had not expected to find something this good.

A former Deseret News reporter, Carter knew finding the word "confidential" among the notes of a Pulitzer Prize-winning journalist like Merlo J. Pusey could signal an important discovery. He had spent weeks searching, one at a time, through boxes of Pusey's notes, donated before his death in 1985. Now, as Carter opened the 13th box and thumbed through a notebook filled with Pusey's elegant cursive, the title of an interview caught his attention, with that one word scrawled discreetly beside it.

"Interview with former Justice Owen J. Roberts May 21, 1946 (confidential)."

The notebook contained Pusey's notes from an interview with the U.S. Supreme Court justice for Pusey's biography of Chief Justice Charles Evans Hughes.

The "confidential" information Carter unearthed includes Roberts' previously unknown thoughts on his famous "switch in time that saved nine" vote on a 1937 case involving President Franklin D. Roosevelt's New Deal legislation.

"For much of the past 75 years, judges, lawyers and scholars have discussed … why Roberts would vote to uphold minimum-wage legislation in March 1937 when he had voted to invalidate similar legislation in June 1936," Carter wrote for the journal "The Green Bag" with fellow communications professor and chair of Brigham Young University's Department of Communications, Ed Adams.

President Roosevelt had proposed a "court-packing plan" on Feb. 5, 1937, because of decisions made by the Supreme Court about his New Deal reforms. Had his legislation passed, Roosevelt would have been able to appoint six additional justices to the court, swelling its ranks to 15 members and packing it with jurists predisposed to the New Deal. Many began speculating Roberts switched sides for political reasons, because the vote took place a month after Roosevelt's plans were made public.

Though he understood his discovery was important, Carter needed a few weeks to research and determine that the information in Pusey's interview with Justice Roberts had never been made public.

"I think that it plays into this larger narrative about the way judges make decisions," Carter said, "… a little bit more insight at how the Supreme Court functioned at the time."

Before the notebook discovery, there were two differing opinions on Roberts' image as a Supreme Court justice — a weak one who gave in to Roosevelt, and a mechanical decision-maker who didn't give in to society, said Carter. After the discovery, however, Carter believes both of these narratives have been proved incorrect. Roberts had left no paper trail, and was private about all aspects of life, which was why nobody had really known why he made the decisions he did, Carter said.

"He didn't give in to Roosevelt and the notes tell us he did pay attention to public opinion, but he was a judge with principles, too, with standards," Carter said.

Roberts saw himself completely set apart from the politics of the issue, Carter and Adams wrote. In his own words, he was not simply a ship trimming its sails "to catch the wind of popular opinion." There were numerous important factors to consider with each case before the Court, and Roberts believed public opinion and outcry was just one of those.

Carter began going through the papers in the first place mostly out of curiosity and to find material he could share in some of the journalism classes he teaches at BYU.