Will There be a "Switch in Time that Saved Nine" Moment in Delaware?

Reading preliminary tea leaves.

In 1937, as he became increasingly frustrated by Supreme Court decisions striking down New Deal laws, President Franklin Delano Roosevelt pushed a court reform bill that would have increased the number of Supreme Court justices, which would have allowed Congress to fill the new vacancies with justices who presumably would favor the New Deal. Roosevelt’s court packing plan was highy controversial and may not have passed anyway, but the urgency of the need for a change in the Court’s composition was lessened when Justice Owen Roberts suddenly shifted sides in West Coast Hotel Co. V. Parrish.

Roberts had been part of a 5-4 majority bloc that struck down several New Deal laws in 1935 and 1936. In Parrish, Roberts switched sides and voted to uphold a Washington minimum wage law. Whether or not his vote was motivated by Roosevelt’s court packing plan, a matter of some historical debate, it came to be known as the switch in time that saved nine, as Roosevelt thereafter let the court packing scheme drop.

Those of us who labor in the corporate law vineyard have been wondering whether we might see a similar jurisprudential shift in the Delaware courts in response to the DExit phenomenon and the Delaware legislature’s reversal of several high profile judicial decisions. There are now some early tea leaves to ponder.

But first some background.