1935’s Black Monday, Ghosts, and 2012 Health Care Reform

1935’s Black Monday, Ghosts, and 2012 Health Care Reform (April 1, 2013)

 Michael Lengel 

           U.S. Supreme Courts are “ghosts of presidents’ past.”1  At New York Law School’s Supreme Court Narratives: Law, History, and Journalism symposium,2 Professor Akhil Reed Amar spoke of structural tensions inherent in the working relationships between a sitting President, limited to one or two terms, and the Supreme Court he inherits, where the Justices are appointed for life.  These relationships are made all the more dramatic when a newly elected “change agent”3 President must deal with “ghosts” left behind by a former administration.4 

           The focus of the symposium was to honor New York Law School Dean and Professor Emeritus James F. Simon for his body of work, which included his 2012 book, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal.5  Simon’s book details the lives of, and eventual battle between, Chief Justice Hughes, appointed by Herbert Hoover, and President Franklin Delano Roosevelt (FDR), who had replaced President Hoover in Depression-era America.  In 1935, the Chief Justice and FDR feuded over FDR’s New Deal policies, but Professor Amar reminded us of just how relevant the FDR/Hughes conflict is today: the flubbed swearing-in ceremony of the “change agent” President Obama (replacing two-term President George W. Bush), conducted by Chief Justice Roberts (appointed by President Bush), was simply the tip of the iceberg.6  The first salvo in the President/Supreme Court’s modern battle might very well have been the modern Court’s decision regarding the health care reform bill. That battle between presiding Chief Justice Roberts and President Obama’s campaign promise of health care reform is reminiscent of FDR’s campaign promise to restart the American economy after the Great Depression with financial reforms. FDR packaged these reforms under his New Deal legislations. 

           In October 1929, as President Herbert Hoover began his only term, “the bottom fell out of the stock market.”7 America “confronted . . . an emergency more serious than war.”8  During the 1932 presidential campaign, FDR criticized the Hoover administration and included the Supreme Court under Chief Justice Hughes in his description of the “Four Horsemen of Republican leadership: Destruction, Delay, Deceit, Despair.”9  With FDR’s election, the Democrats regained power for the first time in twelve years,10 and within the first 100 days of the President’s term, the Congress had passed every single one of FDR’s New Deal legislations.11 The Supreme Court would change that.

           FDR’s fixes for the nation’s economy were summarily struck down as unconstitutional by Hughes’s Court on the now infamous “Black Monday.”12 FDR’s reaction to the court’s reversal of the legislature’s work was incendiary:  “We thought we were solving [the nation’s economic woes], and now it has been thrown right straight in our faces and we have been relegated to the horse-and-buggy definition of interstate commerce.”13

            Critics of FDR were concerned with what appeared to be his “dictatorial ambitions,”14 evidenced by taking economic power away from the states and centralizing control. In retaliation, FDR threatened unprecedented action: he would lift the “Dead Hand” of the Supreme Court in order to give “the people of today the right to deal with today’s vital issues.”15   FDR threatened first a Court-packing scheme and then a federal statute to “check the Court’s power.”16  In private conversation, he even threatened to “carry out the will of Congress through the offices of the United States Marshals and ignore the Court.”17  He did not succeed. 

             In 2012, although problems with the economy were still at the forefront, a vital issue arrived before the Supreme Court: President Obama’s national health care reform, the Patient Protection and Affordable Care Act.18  The parallels Amar draws to FDR and Chief Justice Hughes are instructional, as there was much speculation as to whether the Roberts Court would overturn the Affordable Care Act. Based upon the history between these two leaders, it was, in fact, a great surprise that Chief Justice Roberts cast the Court’s deciding vote in favor of PPACA’s constitutionality. One reason for the surprise: Illinois Senator Barack Obama voted against the Chief Justice’s appointment.19 

            In a stunning upset to conservatives, and perhaps as testament to Justice Roberts’ “formidable skills,” the Supreme Court in 2012, in a five-to-four ruling, narrowly voted in favor of upholding the constitutionality of the Affordable Care Act.  

           The Court did not act as Professor Amar’s “ghosts of presidents’ past”; it did not, as predicted, rule against health care reform act. But new hotbed issues, long brewing, will be brought before the Court in 2013.  Decisions are due for, among other issues, challenges to the Voting Rights Act of 1965, a federal challenge to recognize same-sex marriage, and the taking of blood samples from DUI suspects under Fourth Amendment stop and seizure laws.20  While 2012 may be remembered for “one case,” namely, the health care reform act, 2013 “will be remembered for several.”21  The focus: “[e]very decision of the new term will be scrutinized for signs of whether Chief Justice Roberts, who had been a reliable member of the court’s conservative wing, has moved toward the ideological center of the court.”22

           Not all ghosts of past presidents have yet been exorcised.



*Michael Lengel is a J.D. candidate at New York Law School graduating in May of 2013.

1Akhil Reed Amar, Sterling Professor of Law, Yale Law School, Remarks at New York Law School Symposium: Supreme Court Narratives: Law, History, and Journalism, Panel One − Historical Perspectives: The Supreme Court, Presidents and Constitutional Power (Apr. 12, 2012), available at http://www.youtube.com/watch?v=h4zLJQCiwww&feature=youtu.be. 


3Id.  Professor Amar referenced several such “change agent” Presidents: Jefferson, Lincoln, Roosevelt, Nixon or Reagan (1968 or 1980, depending upon your argument) and, now, President Obama.


5James D. Simon, FDR and Chief Justice Hughes: The President, the Supreme Court, and the Epic Battle Over the New Deal (2012).  

6Amar, supra note 1. 

7See Simon, supra note 5, at 177.

8Id. at 203 (quoting Justice Brandeis, who said “it was time for the Court to allow legislatures ‘to do their part to mold through experimentation our economic practices and institutions to meet changing social and economic needs’”)

9Id. at 219.

10Id. at 232.

11Id. at 243 (“In the first one hundred days of his administration, Roosevelt had sent fifteen legislative messages to Congress, and each had become law. It was a dazzling achievement and demonstrated an astonishing spirit of cooperation between the president and Congress.  But the third co-equal branch of the federal government, the Supreme Court of the United States, had yet to pass judgment on the historic legislation.”).  

12Id. at 258–59 (“Three weeks later, on May 27[, 1935,] the Court dealt three more body blows to Roosevelt and the New Deal. In one decision, the justices scolded the president for exceeding his authority in firing a recalcitrant Republican member of the Federal Trade Commission. In a second decision, they ruled that Congress had acted unconstitutionally in changing the federal bankruptcy law to give immediate relieve to farmers facing foreclosures.  But the third decision, on ‘Black Monday,’ was the most devastating of all, eviscerating the National Recovery Administration, which Roosevelt hailed as the ‘most important and far-reaching legislation in the history of Congress.”).

13Id. at 264.

14Id. at 268.

15Id. at 269 (“If the Supreme Court continued to hold the present generation ‘powerless to meet social and economic problems that were not within the knowledge of the founding fathers’ [FDR] wrote ‘then the President will have no other alternative than to go to the country with a Constitutional amendment that will lift the Dead Hand, giving the people of today the right to deal with today’s vital issues.”).

16See Simon, supra note 5, at 284.


18Patient Protection and Affordable Care Act, Pub. L. No. 111-148, 124 Stat. 119 (2010).

19On September 22, 2005, on the House floor, Senator Obama defended his refusal to vote for Mr. Roberts as the new Chief Justice.  Mr. Obama found that while “adherence to legal precedent and rules of statutory or constitutional construction will dispose of 95 percent of the cases” the other 5 percent require “what is in the judge’s heart.” Senator Obama said that “Judge Roberts’ record [indicates he] has far more often used his formidable skills on behalf of the strong in opposition to the weak” in wide ranging matters concerning affirmative action (both with respect to racial issues and disabled persons), interstate commerce and abortion. 51 Cong. Rec. 21,032 (2005); see also Opinion, Why Obama Voted Against Roberts, Wall Street Journal (June 2, 2009), available at http://online.wsj.com/article/SB124390047073474499.html.

20See Adam Liptak, Supreme Court Faces Weighty Cases and a New Dynamic,  N.Y. Times, September 29, 2012,  http://www.nytimes.com/2012/09/30/us/supreme-court-faces-crucial-cases-in-new-session.html?pagewanted=all&_r=0



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