July 22, 1937: The U.S. Senate sends The Judicial Procedures Reform Bill of 1937 back to its Committee on the Judiciary, effectively dooming it. President Franklin D. Roosevelt's "court-packing plan" will not pass.
In his 1st term in office, from March 4, 1933 to January 20, 1937, FDR did not have a chance to appoint a new Justice to the U.S. Supreme Court. And the Justices on the Court, nicknamed "The Nine Old Men," struck down several pieces of "New Deal" legislation he'd lobbied for and signed into law.
Typical of this was the case of A.L.A. Schechter Poultry Corporation v. United States, in which the Court struck down the National Industrial Recovery Act of 1933 in its entirety. In a unanimous 9-0 vote on May 27, 1935, known to the Roosevelt Administration as "Black Monday," the Court ruled that the NIRA was in violation of both the Due Process Clause of the 5th Amendment, and also of the Commerce Clause of the Constitution (Article I, Section 8, Clause 3.) Four days later, in a rare objection, FDR held a press conference, saying the Schechter decision had "relegated the nation to a horse-and-buggy-definition of interstate commerce.
At the time, there were 3 factions on the Court:
* "The Four Horsemen" were ultraconservative: Willis Van Devanter, appointed by William Howard Taft, a Republican; James McReynolds, appointed by Woodrow Wilson, a Democrat but, like McReynolds, a Southern one; and George Sutherland and Pierce Butler, both appointed by Warren Harding, a Republican.
* "The Three Musketeers" were liberal: Louis Brandeis, the 1st Jewish Justice on the Court, appointed by Wilson and considerably more liberal than McReynolds; Harlan Stone, appointed by Calvin Coolidge, a Republican; and Benjamin Cardozo, appointed by Herbert Hoover, a Republican. But both Stone and Cardozo tended to vote FDR's way.
* The swing votes were Charles Evans Hughes, once an Associate Justice appointed by Taft, a predecessor of FDR's as Governor of New York, the 1916 Republican nominee for President, very nearly beating Wilson, and appointed Chief Justice by Hoover, to replace Taft, who had been appointed by Harding; and Owen Roberts, another Hoover appointee.
FDR knew that the Four Horsemen were a threat to his legislation, and that the two swing votes were both Republicans. But he didn't expect a unanimous vote against the NIRA -- which his coming plan wouldn't have done anything to prevent, anyway.
After being re-elected in a massive landslide in 1936, including getting the greatest Congressional majorities any party has ever had, FDR figured he could get just about anything passed through Congress. He proposed what became known as "the Court-packing plan," allowing the President to appoint a Justice to the Supreme Court without there being a vacancy, one such Justice for every member of the Court that was at least 70 years old. In the Spring of 1937, that would have meant six, for a total of 15.
Incidentally, the Constitution never says how many Justices should be on the Supreme Court of the United States, only that it should exist, and what it should do. The number has been fixed at 9 since the Judiciary Act of 1869, mainly because there are 9 "circuits" in the federal court system, although it's not traditional to have 1 Justice from each of the 9 circuits.
To use the 1937 Court as an example: McReynolds and Brandeis (though philosophical opposites) were both from Kentucky, Cardozo and Hughes were both from New York, Van Devanter was from Indiana, Sutherland was from in Utah, Butler was from Minnesota, Stone was from Massachusetts, and Roberts was from Pennsylvania.
Even the Democrats in Congress wouldn't go along with FDR on this one. It was too much of an overreach, and it seemed like a power grab, upsetting the separation of powers between the branches of the federal government.
When FDR asked Vice President John Nance Garner, a former Speaker of the House, how the plan was going, Gardner asked, "You want it with the bark on or off, Captain?" FDR knew then what the answer would be. He said, "The rough way, bark on." Garner said, "All right: You're licked. You haven't got the votes."
FDR didn't get what he wanted, but he got the next-best thing: The plan struck fear into the Justices, and led them to look at his New Deal legislation more closely. On March 29, 1937, Justice Roberts (no relation to current Chief Justice John Roberts) voted with Hughes and the Three Musketeers in West Coast Hotel Company v. Parrish, upholding minimum wage laws. He had been expected to vote the other way, striking all such laws down.
It became known as "The Switch In Time That Saved Nine," and was a sign that the Court -- or, at least, Roberts -- had gotten FDR's message.
FDR hadn't gotten a chance to replace any of the Justices in his 1st term. Starting with his 2nd, his chances began to come:
1. In 1937, Van Devanter retired, and was replaced by Senator Hugo Black of Alabama. Despite having once been a member of the Ku Klux Klan, the inaptly-named Black became one of the Court's leading voices for the forward movement of civil rights.
2. In 1938, Sutherland retired, and was replaced by Stanley Reed, FDR's Solicitor General, the person who argues before the Supreme Court on behalf of the federal government -- in other words, FDR had appointed the man who lost the Black Monday cases to the Court. This appointment was not unusual, because 5 Solicitors General have gone on to the Supreme Court, including Taft, and the 1st black Justice on the Court, 1967 appointee Thurgood Marshall, and current Justice Elena Kagan. Justice Hughes' son, Charles Evans Hughes Jr., also served as Solicitor General, although he resigned when his father was appointed Chief Justice, to avoid a conflict of interest.
3. Also in 1938, Cardozo died, and was replaced by Felix Frankfurter, a founder of the American Civil Liberties Union, and a longtime professor at Harvard Law School, FDR's alma mater.
4. In 1939, Brandeis retired, and was replaced by the Chairman of the Securities and Exchange Commission, William O. Douglas, who served longer on the Court than anyone yet has: 36 years.
5. Also in 1939, Butler died, and was replaced by Frank Murphy, who had been FDR's Attorney General, and, before that, Governor of Michigan and Mayor of Detroit.
6. In 1941, McReynolds retired, and was replaced by Senator James F. Byrnes of South Carolina. In 1942, with World War II on, FDR decided Byrnes was more valuable in a different role, and replaced him with federal Judge Wiley Rutledge.
7. Also in 1941, Hughes retired, and FDR promoted Stone to Chief Justice.
8. To replace Stone as Associate Justice, FDR appointed Robert H. Jackson, who had replaced Murphy as U.S. Attorney General, and had replaced Reed as U.S. Solicitor General, and before that had been an Assistant Attorney General in the Tax and Antitrust Divisions.
FDR appointed 9 Justices -- but only replaced 8 of those he inherited. With some appropriateness, the only Justice he didn't replace was Roberts, who retired from the Court on July 31, 1945, 3 months after FDR died. President Harry Truman replaced him with Harold Burton, a Senator from Ohio and former Mayor of Cleveland, and a Republican, as a bipartisan gesture in the closing days of World War II.
*
July 22, 1937 was a Thursday. These baseball games were played that day:
* The New York Yankees lost to the St. Louis Browns, 13-4 at Sportsman's Park in St. Louis. This was unusual, as the Yankees went on to go 102-52 and win the World Series, while the Browns finished 46-108, 56 games behind the Yankees. Lou Gehrig and rookie Tommy Henrich hit home runs, as Bump Hadley couldn't get out of the 2nd inning, and Frank Makosky couldn't get out of the 3rd.
* The New York Giants beat the Cincinnati Reds, 6-5 at the Polo Grounds. Mel Ott went 2-for-3 with a walk.
* The Brooklyn Dodgers beat the Pittsburgh Pirates, 10-1 at Ebbets Field.
* The Boston Bees beat the St. Louis Cardinals, 2-0 at National League Park in Boston. This was during the experiment of trying to erase the memory of a lousy 1935 season by changing the name of the team and the ballpark. It didn't take, and in 1941, the team was once again the Boston Braves, and the ballpark was once again Braves Field. Danny MacFayden -- known for his glasses and his calm demeanor as "Bespectacled Deacon Danny MacFayden" -- pitched a 6-hit shutout against the team known for their scrappy play as "The Gashouse Gang."
* The Philadelphia Phillies beat the Chicago Cubs, 7-4 at Baker Bowl in Philadelphia.
* The Cleveland Indians beat the Philadelphia Athletics, 5-1 at League Park in Cleveland.
* The Detroit Tigers beat the Boston Red Sox, 17-4 at Navin Field in Detroit. That ballpark was renamed Briggs Stadium the next season, and Tiger Stadium in 1961. The Tigers got home runs from Hank Greenberg (who had 5 RBIs), Rudy York, Charlie Gehringer and Chet Laabs.
* And the Chicago White Sox and the Washington Senators were not scheduled to play.
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