WI: President William O. Douglas (1945)

[Jackson Lennock]

So the story goes, FDR sent a letter to the 1944 Democratic Convention saying he'd be satisfied with Truman or Douglas as Vice President. The party machine folks preferred Truman over Douglas, and Douglas didn't have people on the ground to whip for him.

What if William O Douglas had been selected as Vice President in 1944, and became President in 1945?

One difference is that Douglas, unlike, Truman, would be respected by FDR. Truman was kept out of the loop on things, whereas FDR would actually view Douglas as a valid successor. His humanitarianism might produce some different outcomes, like bombing the railroads to concentration camps. Or perhaps it would not, as it's hard to guess.

Douglas was also a Cold War hawk like Truman, but may be more zealous in promoting democracy abroad. Douglas may recognize the Declaration of Independence of the Democratic Republic of Vietnam. This would bode poorly for Franco-American relations. The French would probably respond by insisting that Cochinchina is separate from Vietnam (the Protectorates of Annam and Tongkin). As far as compromises to placate the French go, that wouldn't be an implausible outcome.

Korea may or may not play out differently. The partition of Korea OTL wasn't exactly well thought out (it being based on a National Geographic map the Americans happened to have on hand).

Douglas would not be on the Supreme Court. My guess is he would be replaced by Sherman Minton, who was considered by FDR OTL several times and later put up by Truman. Minton proved more conservative than expected on the bench OTL. Douglas would be the one to replace Owen Roberts, and likely puts up somebody more liberal than Harold Burton. Douglas may think it wise to nominate a Republican as a bipartisan gesture, but IIRC Truman did that OTL partly at the suggestion of Frankfurter, who had a mutual loathing with Douglas. Anyways, somebody liberal would be put up in 1945, balancing out the Conservative Minton replacing Douglas.

Douglas probably would elevate his friend Hugo Black to the Chief Justiceship in 1946, which may prompt Jackson to resign given the two loathed each other. Black would be replaced by a liberal. Maybe Douglas puts up his old student, Abe Fortas, in an Associate Justice seat.

If Douglas is reelected in 1948, who knows what's next?

He gets to put up Justices in place of Truman from 1949 to 1953. That would just mean replacing Murphy and Rutledge, two liberals of the Black-Douglas camp. OTL they were replaced by Conservatives, but here they would be replaced by liberals. Incorporation could occur a decade ahead of schedule. There would be big knock-ons for this. Historically the expanded criminal procedure protections came into effect around the same time that crime was already starting to tick up, causing people to see a connection between the two. Here it would happen when crime is going down, meaning people wouldn't blame the Court.

Douglas was also a firmer supporter of the Zionist cause. Israel probably fares better in the 1948 war than historically. I don't think they would take the whole mandate.

There might not be a Korean War with Douglas instead of Truman. Truman's Secretary of State failing to include Korea in the list of places in east asia the US cared about was read by Pyongyang as an implicit sign that the outside world would not do anything if the North attacked. Douglas's Secretary of State might not slip up in the same way.

I'm not sure how the Chinese Civil War would play out any differently with President Douglas instead of Truman from 1945 to 1949.

Douglas might run for reelection in 1952, unlike Truman.

Douglas would not be on the bench for Griswold v. Connecticut. The case probably still comes out the same, since there were three or four different rationales being floated in the case by the different Justices, but it might be under much narrower reasoning such as that of Harlan (Connecticut's law is a gross outlier among the states and historically) or White (Connecticut's law is just incredibly stupid).

 

[Roger II]

Interesting thoughts. Other considerations:
1) Broad right to contraception is happening, and probably the SDP revolution of the 60s, just under a different rationale. There's just too much social and political pressure to break that particular logjam. Maybe we get narrower Griswold and something else broadening that, maybe we get broad Griswold but with the Harlan concurrence being the law.

2) Earlier environmental legislation/administrative action/pushes seems very likely. Douglas was a deeply committed environmentalist and famously (and IMO correctly) argued that natural entities should have legal standing. Not to mention pushing for the C&O Canal to become a national park. I think this is actually the most interesting possibility-looking at pollution in postwar America, its role in suburbanization and perceptions of urban disorder and crime, the public health effects of environmental destruction, etc, it's extremely plausible that a committed environmentalist after WWII as president would have at least some interesting ramifications. Dunno how much one man can do to push this against the tide, even if he is the president, but it's an interesting possibility. Even just the vibes from the president being someone who would e.g. consider pollution control a positive and necessary goal and not a "eh nice" thing or who thinks that arbitrarily damming rivers to keep the ACE and Bureau of Reclamation busy is wrongheaded would be interesting.

 

[Jackson Lennock]

Interesting thoughts. Other considerations:
1) Broad right to contraception is happening, and probably the SDP revolution of the 60s, just under a different rationale. There's just too much social and political pressure to break that particular logjam. Maybe we get narrower Griswold and something else broadening that, maybe we get broad Griswold but with the Harlan concurrence being the law.

The Court OTL essentially just treated the Harlan opinion as the governing one.

Connecticut's law was a weird outlier imitated by no other state, largely unenforced, and could only be enforced via the most obnoxious intrusion into family life traditionally understood. If Harlan's reasoning is the majority opinion, Substantive Due Process would largely be defined by striking down obnoxious outlier legislation.

It'd be hard to extend that rationale to get to Roe, but vagueness challenges probably would bring down many abortion laws instead.
Judge Newman's Abele v. Markle concurrence argued that Connecticut's abortion law should be struck down because it was so old that nobody could agree why it was passed to begin with.

Doe v. Bolton relied in part on procedural due process, equal protection, and the privileges and immunities clause.

2) Earlier environmental legislation/administrative action/pushes seems very likely. Douglas was a deeply committed environmentalist and famously (and IMO correctly) argued that natural entities should have legal standing. Not to mention pushing for the C&O Canal to become a national park. I think this is actually the most interesting possibility-looking at pollution in postwar America, its role in suburbanization and perceptions of urban disorder and crime, the public health effects of environmental destruction, etc, it's extremely plausible that a committed environmentalist after WWII as president would have at least some interesting ramifications. Dunno how much one man can do to push this against the tide, even if he is the president, but it's an interesting possibility. Even just the vibes from the president being someone who would e.g. consider pollution control a positive and necessary goal and not a "eh nice" thing or who thinks that arbitrarily damming rivers to keep the ACE and Bureau of Reclamation busy is wrongheaded would be interesting.

That was later in his life though.

I could imagine him as an active ex-president promoting environmental reform, but the issue wasn't of much immediacy during the 1940s.

 

[Roger II]

The Court OTL essentially just treated the Harlan opinion as the governing one.

Connecticut's law was a weird outlier imitated by no other state, largely unenforced, and could only be enforced via the most obnoxious intrusion into family life traditionally understood. If Harlan's reasoning is the majority opinion, Substantive Due Process would largely be defined by striking down obnoxious outlier legislation.

It'd be hard to extend that rationale to get to Roe, but vagueness challenges probably would bring down many abortion laws instead.
Judge Newman's Abele v. Markle concurrence argued that Connecticut's abortion law should be struck down because it was so old that nobody could agree why it was passed to begin with.

Doe v. Bolton relied in part on procedural due process, equal protection, and the privileges and immunities clause.



That was later in his life though.

I could imagine him as an active ex-president promoting environmental reform, but the issue wasn't of much immediacy during the 1940s.

So re: contraception and abortion, I'm confused why if the court is treating Harlan as the majority would actually change the extension of the rationale to abortion. In any case, I think the trajectory of much weaker government intrusion into bodily autonomy rights in general is going to favor either Roe or something like it.

Re: environmental stuff, worth noting that the walk to save the C&O Canal was in the early/mid 50s and he wrote about the subject in his 1950 autobiography. I can't imagine major legislative pushes/strides on the scale of the CAA/CWA earlier and his environmentalism was of a somewhat older "protect specific locales" vintage but I do think it was important enough to him that it would inform some of his policy ideas and "vibes", and I think there's something worth picking at in there.

 

[Jackson Lennock]

So re: contraception and abortion, I'm confused why if the court is treating Harlan as the majority would actually change the extension of the rationale to abortion. In any case, I think the trajectory of much weaker government intrusion into bodily autonomy rights in general is going to favor either Roe or something like it.

Griswold itself didn't say there was a right to contraceptives. The case was more concerned with spying on the sex lives of married couples and forcing husband and wife to testify in court about it. Eisenstadt was remarkably noncommittal as to what Griswold had said, and merely said that whatever Griswold guaranteed for the married extends to the unmarried. It wasn't until 1977 that the Court in Carey said the following: Griswold may no longer be read as holding only that a State may not prohibit a married couple's use of contraceptives. Read in light of its progeny, the teaching of Griswold is that the Constitution protects individual decisions in matters of childbearing from unjustified intrusion by the State. Essentially, because later opinions were cavalier with what Griswold actually said, Griswold should no longer be treated as having said what it said.

Roe itself rejected bodily autonomy as the rationale. It cited with acceptance that Buck v. Bell (Sterilization) and Jacobson v. Massachusetts (compelled vaccination) were acceptable opinions. Nor was this an outlier. Marshall's dissent in Rodriguez in 1974 repeats this understanding. It wasn't until Casey that the Court centered bodily autonomy as the rationale for Roe.

Harlan's Griswold opinion, though it rejects legalizing gay sexual relations, is more easily extended to support Bowers v. Hardwick than Roe v. Wade. The formula of outlier regime + policy of nonenforcement + what goes on behind closed doors works there.

Burger's Roe concurrence suggested that because Texas admitted it did not enforce its own law in cases of rape or incest, that was reason enough to strike down the law. Requiring the inclusion of more exceptions than just life seems like a strong possibility for the Court to take at least. If the constitutional baseline is limited to so-called therapeutic abortions, there may be strong equal protection claims that public funds should go to fund those abortions because they're a kind of healthcare.

Re: environmental stuff, worth noting that the walk to save the C&O Canal was in the early/mid 50s and he wrote about the subject in his 1950 autobiography. I can't imagine major legislative pushes/strides on the scale of the CAA/CWA earlier and his environmentalism was of a somewhat older "protect specific locales" vintage but I do think it was important enough to him that it would inform some of his policy ideas and "vibes", and I think there's something worth picking at in there.

Interesting! Thanks for telling me this.