May 27, 1935: "Black Monday" vs. the New Deal

The Supreme Court, 1935. Top row, left to right:

Pierce Butler, Harlan Stone, Owen Roberts, Benjamin Cardozo.

Bottom row, left to right: Louis Brandeis, James McReynolds,

Chief Justice Charles Evans Hughes, Willis Van Devanter, George Sutherland.

May 27, 1935: A bad day for President Franklin D. Roosevelt and his New Deal, at the Supreme Court of the United States. Among FDR's advisors, the "Brain Trust," it becomes known as "Black Monday."

In Humphrey's Executor v. United States, FDR, a Democrat, had fired William Humphrey, a Republican, from the Federal Trade Commission. Humphrey sued to get his job back, and to get back pay. He died before the case could be heard, so his wife, as the executor of his estate, kept the suit going. The Court ruled in favor of Mrs. Humphrey.

FDR was not used to losing. He had never lost an election in his own right: State Senator from Dutchess County in 1910 and 1912, Governor of New York in 1928 and 1930, President in 1932. He had been on the losing side of the 1920 Presidential election, but as the Democratic nominee for Vice President, with Governor James M. Cox of Ohio as the top of the ticket and the official loser. He'd even gained seats for the Democrats in the 1934 Congressional election. So, this hurt a little. If that had been the end of it, it probably would've been a footnote in the story of his Administration.

Then, the Court announced its ruling in Louisville Joint Stock Land Bank v. Radford. The Frazier-Lemke Farm Bankruptcy Act of 1934 was designed to give aid to debt-ridden farmers. But the Court ruled that it violated the "Takings Clause" of the 5th Amendment to the Constitution of the United States: While the States could not impair contract obligations, the federal government could, but it could not take property in such a manner without compensating the creditor. Two losses for FDR in one day. Unpleasant, but not really a big deal.

But the last decision the Court read that day was a very big deal. In A.L.A. Schechter Poultry Corporation v. United States, the Court struck down the National Industrial Recovery Act of 1933, a key piece of New Deal legislation, in its entirety.

The details of what became known as "the Sick Chicken Case" involved the Schechter brothers violating laws governing the sale of poultry in the State of New York, both State and federal, including the NIRA.

(Ironically, the symbol of the NIRA -- or just the NRA, at that point better-known than the National Rifle Association -- was a bird, a blue eagle. This inspired the naming of a professional football team that started play in 1933, which later switched its main color from blue to green: The Philadelphia Eagles. And until becoming contenders during World War II, they seemed to play more like sick chickens than soaring eagles.)

In a unanimous 9-0 vote, 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.)

If the 1st 2 cases rolled off FDR like water off a duck's back, this last one stung. Four days later, he held a press conference, saying Schechter 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 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. Not in Schechter, though.

* 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.

After being re-elected in 1936, FDR 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 has never said, anywhere its text, either the original or the Amendments, how many Justices should be on the Supreme Court; only that the Court should exist, and what it should do. The number has been fixed at 9 since the Civil War, mainly because there were 9 "circuits" in the federal court system, although it was not traditional to have 1 Justice from each of the 9 circuits. Since 1981, there have been 11 circuits.)

But 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. The plan was never even voted on by Congress.

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, which would have made the vote 5-4 against, 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, that Roberts -- had gotten FDR's message.

Despite the many successes, some of them political landmarks, of his 1st term, FDR hadn't gotten a chance to replace any of the Justices. Starting with his 2nd term, his chances began to come:

1. On June 2, 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. On January 17, 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.

3. On July 9, 1938, Cardozo died, and was replaced by Felix Frankfurter, one of the founders of the American Civil Liberties Union, and a longtime professor at Harvard Law School, FDR's alma mater.

4. On February 13, 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. On November 16, 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. On January 31, 1941, 11 days after FDR was sworn in for a 3rd term, 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. On June 30, 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.

*

May 27, 1935 was, as stated, a Monday. Up until 1970, Memorial Day was observed on May 30. Since 1971, it's been on the last Monday in May. So this Monday was not a Memorial Day. But it was the birthdate of future Miss America and actress Lee Meriwether.

Football, basketball and hockey were out of season. These games were played in what would later be called Major League Baseball:

* The New York Yankees beat the Detroit Tigers, 3-1 at Yankee Stadium. Johnny Allen outpitched Lynwood Thomas "Schoolboy" Rowe. This was the year after Babe Ruth left, and the year before Joe DiMaggio arrived, but Lou Gehrig went 1-for-4 in this game. For the Tigers, Hank Greenberg went 0-for-4. The Tigers went on to win the World Series, anyway.

* The St. Louis Browns beat the Boston Red Sox, 5-3 at Fenway Park in Boston.

* The Philadelphia Athletics beat the Chicago White Sox, 6-1 at Shibe Park in Philadelphia. (It was renamed Connie Mack Stadium in 1953.)

* The Washington Senators beat the Cleveland Indians, 6-5 at Griffith Stadium in Washington.

* The Philadelphia Phillies beat the Pittsburgh Pirates, 4-2 at Forbes Field in Pittsburgh.

* The Cincinnati Reds beat the Boston Braves, 9-5 at Crosley Field in Cincinnati. In one of his last major league appearances, Babe Ruth led off the top of the 9th inning with a walk. But the Cliché Alert didn't kick in: The Braves couldn't capitalize on that and mount a rally.

* The New York Giants and the St. Louis Cardinals, the last 2 World Series winners, were supposed to play at Sportsman's Park in St. Louis, but got rained out. It was made up as part of a doubleheader on July 23. The Cards won the opener, 6-1. Paul "Daffy" Dean beat Roy Parmelee, thanks to 2 home runs from Joe Medwick. The Jints won the nightcap, 8-2. Al Smith won it over Bill Walker. Bill Terry and Mel Ott both went 0-for-4 in the 1st game, but made up for it in the 2nd: Terry 2-for-4 with an RBI, Ott 3-for-5 with 2 RBIs.

* And the Brooklyn Dodgers and the Chicago Cubs were supposed to play at Wrigley Field in Chicago, but got rained out. This one was also made up as part of a doubleheader on July 23. The Cubs won both games, 8-0 and 6-4. Roy Henshaw pitched a 6-hit shutout in the opener.

January 20, 1945: FDR's Last Inauguration

January 20, 1945: For the 4th time, Franklin Delano Roosevelt is inaugurated as President of the United States. For the 1st time, an official Inauguration ceremony is held at the White House, instead of the Capitol Building.

The most important traditions were held. Outgoing Vice President Henry A. Wallace, as was then traditional, swore in his replacement, former Senator Harry S Truman of Missouri, who then gave a short speech. From 1949 onward, Vice Presidents have usually been sworn in by an Associate Justice of the Supreme Court of the United States. From 1973 onward, they have not given their own Inaugural Addresses.

Then, the Chief Justice of the Supreme Court, Harlan Stone, asked FDR to repeat the Oath of Office, which he did, with a voice considerably weaker than just 4 years earlier: "I, Franklin Delano Roosevelt, do solemnly swear that I will faithfully execute the office of President of the United States, and will, to the best of my ability, preserve, protect and defend the Constitution of the United States, so help me, God." And then, he delivered an Inaugural Address.

It would not be like his 1st, on March 4, 1933. The country's economy was then on the brink of absolute collapse. There was no need for him to ask Congress for "action, and action now!" There was no need for him to tell the American people, "The only thing we have to fear is fear itself!" Thanks to his leadership and the actions of Congress, the American economy was now as strong as ever.

It would not be like his 2nd, on January 20, 1937. He had addressed the need for further work to alleviate the Depression, saying, "I see one-third of a nation ill-housed, ill-clad, ill-nourished." Additional "New Deal" programs had lowered that percentage.

It would not be like his 3rd, on January 20, 1941. The threat of America being dragged into World War II loomed overhead, and no one knew what the result would be. He called on Americans to face the threats of Nazi Germany and Imperial Japan: "There are men who believe that democracy, as a form of government and a frame of life, is limited or measured by a kind of mystical and artificial fate that, for some unexplained reason, tyranny and slavery have become the surging wave of the future, and that freedom is an ebbing tide. But we Americans know that this is not true."

On this 4th Inauguration Day for him, FDR had seen America enter that war, and make great progress in it. He knew that the war could be won in this new calendar year. He also knew his own health, as he approached his 63rd birthday, was precarious: His constant smoking had given him heart disease, and that and the pressures of the war had given him unacceptably high blood pressure. It was now a race as to whether he would see the end of the war, and begin to implement the plans he already had for after the victory, at home and abroad.

Due to his health, FDR asked that the ceremony be held on the South Portico of the White House, not at the Capitol; and that the traditional Inaugural Parade and Inaugural Balls be canceled. And guests were limited to wounded personnel who had returned from serving.

Due to these conditions, and those of the weather -- it was 36 degrees, and there was snow on the ground -- he kept the speech short. His 1st 3 Inaugural Addresses had been 1,880, 1,808 and 1,359 words, respectively, in no case particularly long. (The 3 previous Republican Presidents, even the famously taciturn Calvin Coolidge, had each spoken over 3,300 words.) This speech lasted just 559 words, the shortest ever except for George Washington's 135 words of 1793. It lasted just 6 minutes:

Mr. Chief Justice, Mr. Vice President, my friends: You will understand and, I believe, agree with my wish that the form of this Inauguration be simple, and its words brief.

We Americans of today, together with our allies, are passing through a period of supreme test. It is a test of our courage, of our resolve, of our wisdom, our essential democracy. If we meet that test, successfully and honorably, we shall perform a service of historic importance which men and women and children will honor throughout all time.

As I stand here today, having taken the solemn oath of office in the presence of my fellow countrymen, in the presence of our God, I know that it is America's purpose that we shall not fail.

In the days and in the years that are to come, we shall work for a just and honorable peace, a durable peace, as today we work and fight for total victory in war. We can and we will achieve such a peace.

We shall strive for perfection. We shall not achieve it immediately, but we still shall strive. We may make mistakes, but they must never be mistakes which result from faintness of heart or abandonment of moral principle.

I remember that my old schoolmaster, Dr. Peabody, said, in days that seemed to us then to be secure and untroubled: "Things in life will not always run smoothly. Sometimes we will be rising toward the heights. Then, all will seem to reverse itself and start downward. The great fact to remember is that the trend of civilization itself is forever upward; that a line drawn through the middle of the peaks and the valleys of the centuries always has an upward trend."

Our Constitution of 1787 was not a perfect instrument. It is not perfect yet. But it provided a firm base upon which all manner of men, of all races and colors and creeds, could build our solid structure of democracy.

And so today, in this year of war, 1945, we have learned lessons, at a fearful cost, and we shall profit by them. We have learned that we cannot live alone, at peace; that our own well-being is dependent on the well-being of other nations far away. We have learned that we must live as men, not as ostriches, nor as dogs in the manger. We have learned to be citizens of the world, members of the human community.

We have learned the simple truth, as Emerson said, that, "The only way to have a friend is to be one." We can gain no lasting peace if we approach it with suspicion and mistrust or with fear. We can gain it only if we proceed with the understanding, the confidence, and the courage which flow from conviction.

The Almighty God has blessed our land in many ways. He has given our people stout hearts and strong arms with which to strike mighty blows for freedom and truth. He has given to our country a faith which has become the hope of all peoples in an anguished world.

So we pray to Him now for the vision to see our way clearly, to see the way that leads to a better life for ourselves and for all our fellow men, to the achievement of His will to peace on earth.

Just 82 days later, Franklin Delano Roosevelt was dead. Just 18 days after that, so was Adolf Hitler. Just 8 days after that, the Nazis surrendered. And 98 days after that, Japan surrendered. World War II was over.

To borrow an analogy that would later be used by Martin Luther King Jr.: FDR had been to the mountaintop, and had seen the Promised Land, knew he wouldn't get there with us, but also knew that we, as a people, would get there.

In 1947, Congress approved the 22nd Amendment to the Constitution of the United States, limiting the President to 2 terms. In 1951, enough States ratified it to make it official.

Since 1945, every intentional Inauguration ceremony has been held at the Capitol. Unforeseen circumstances have required 2 Presidents to be sworn in during a predecessor's term: In 1963, John F. Kennedy was assassinated in Dallas, and Vice President Lyndon B. Johnson was sworn in aboard Air Force One; and in 1974, Richard Nixon resigned due to the Watergate scandal, and Vice President Gerald Ford was sworn in at the White House, indoors in the East Room.

*

January 20, 1945 was a Saturday. Baseball and football were out of season. The NBA hadn't been founded yet. There were 2 games in the NHL. Both were played in Canada, not the United States. The Montreal Canadiens beat the New York Rangers, 5-2 at the Montreal Forum. And the Toronto Maple Leafs beat the Chicago Black Hawks, 8-4 at Maple Leaf Gardens in Toronto. The Boston Bruins and the Detroit Red Wings were not scheduled.