Alternate Supreme Courts Thread

[Roger II]

Back in law school, I sort of mused at Blackmun finding out his clerk was gay earlier and that dominoing into him going the other way on Bowers, but I think that's been discussed?

 

[Jackson Lennock]

Back in law school, I sort of mused at Blackmun finding out his clerk was gay earlier and that dominoing into him going the other way on Bowers, but I think that's been discussed?

You mean Powell, right? Blackmun was in the dissent.

Powell shortly after leaving the bench said he thought he was wrong in Bowers.

 

[Jackson Lennock]

The time between the first Woman on the Court (1981)(O'Connor) and there being two women (1993)(O'Connor and Ginsburg) was 12 years.
The time between the first Jew on the Court (1916)(Brandeis) and there being two Jews (1932)(Brandeis and Cardozo) was 16 years.
The time between the first Italian on the Court (1986)(Scalia) and there being two (2005)(Scalia and Alito) was 19 years.
The time between the first African American on the Court (1967)(Marshall) and there being two (2022)(Thomas and Jackson) was 55 years.
The time between the first Catholic on the Court (1836)(Taney) and there being two (1986)(Scalia and Brennan) was 150 years.

What would it take for these gaps to be shorter?

Ford could put William T Coleman on the bench in 1975 instead of John Paul Stevens, perhaps. He was about where Lewis Powell was ideologically, and so likely to the right of Stevens. The gap would be 8 years.

Or Ford could nominate Carla Anderson Hills in 1975 instead of John Paul Stevens. Reagan might not feel pressed to nominate O'Connor, but he might still offend women with his ERA comment and make clear he'd consider women for prominent positions. The hard lobbying campaign for O'Connor which occurred OTL could still get her on the bench to replace Stewart.

The Catholic Gap seems like the easiest to close. The second Catholic - Pierce Butler - wasn't put on the bench until 1923. If Sylvia Bacon were chosen instead of O'Connor, or if Nixon had put her on the bench, that's be two Catholics in 1969, 1971, or 1981 (Bacon and Brennan). If Judah P Benjamin had accepted Filmore or Pierce's offers to be on the Supreme Court, he might count for this (with an asterisk) - though he was Jewish, his wife was Catholic and he received Catholic last rights.

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As a side matter, there's one woman I could see getting put on the bench many decades earlier than O'Connor - Mabel Walker Willebrandt.
Willebrandt was a brilliant mind, Assistant AG from 1921 to 1929, and monikered 'The First Lady of the Law.' She headed the Tax Division of the DOJ and personally opposed Prohibition, but still fiercely enforced the law as long as it was the law. Hoover could perhaps appoint her. Plus, she later converted to Catholicism, so that could get two Catholics in the bench very early on.

 

[Ricardolindo]

As a side matter, there's one woman I could see getting put on the bench many decades earlier than O'Connor - Mabel Walker Willebrandt.
Willebrandt was a brilliant mind, Assistant AG from 1921 to 1929, and monikered 'The First Lady of the Law.' She headed the Tax Division of the DOJ and personally opposed Prohibition, but still fiercely enforced the law as long as it was the law. Hoover could perhaps appoint her. Plus, she later converted to Catholicism, so that could get two Catholics in the bench very early on.

I think it's completely unrealistic for a woman to be nominated to the Supreme Court in the 1920s.

 

[Jackson Lennock]

Apparently, O'Connor was a favorite of Powell and some in the Reagan DOJ (but not Meese and Co) for the position of Chief Justice when Burger retired.

What if O'Connor had gotten it instead of Rehnquist? She'd already served Chiefly duties - such as counting the votes in Conference - under Burger, and her preference for narrow opinions was not dissimilar to Burger's. I'm not sure if she'd run the Conference as Rehnquist did - Rehnquist assumed that the Justices showed up with their minds made up and arguing at Conference was pointless ... so better to have them vote and iron out the details as the drafts went around. O'Connor I think would would operate similarly as Rehnquist did, but I think she'd use the threat of concurring as the means by which she got her way rather than passing on voting at all, as Burger did. In this respect, she'd probably be similar to John Roberts.

Rehnquist may remain a more right-of-center figure without toning it down as Chief Justice. When he started handling administrative duties, he focused less on ideological writing. By the end of his time on the bench, he seemed to care only about Chiefly Administrative functions, leaving ideological warfare to Scalia and Thomas.

Without the Rehnquist fight, the Scalia confirmation might not go as smoothly. A lot of why Scalia was confirmed unanimously had to do with Rehnquist drawing fire. Scalia probably doesn't flop like Bork did - he has the advantages of being an Italian-American nominee just before a midterm, was less gregarious, didn't have as out there positions (Scalia never went so far as to support a right to discriminate), and not being involved with the Saturday Night Massacre.

It's possible that Conservatives would insist on Bork sooner if O'Connor is being elevated - ergo, Bork is nominated instead of Scalia. Bork could still fail - a lot of Senators who voted for Scalia because they were afraid of angering Italian-Americans before the midterms would be equally unwilling to alienate Black voters before the midterms. Without Rehnquist to draw fire for months, Bork will get the flak Scalia avoided OTL too. Maybe they put Scalia through after Bork flops hard; or Orrin Hatch (part of the shortlist of 2, along with Bork, in 1987) is nominated in order to avoid a fight. Come 1987, they're more cautious over the Powell replacement. If Scalia got it in 86, then perhaps Kennedy gets nominated immediately or Silberman or Doug Ginsberg get first crack. If Hatch got it in 86, then Scalia could get it in 87. I think O'Connor and Scalia (like OTL Rehnquist and Scalia) is the most likely route though.

Story-wise, Doug Ginsburg as a replacement for Kennedy is interesting. He seems like an earlier version of Gorsuch - often conservative, but with odd random hard-left swings. He may be friendly to abortion rights (Ginsburg's wife performed abortions as a doctor) and would be stronger on criminal justice issues than Kennedy was (Gorsuch being a weird hard-left swing on such things). But he'd also be more conservative than Kennedy on Federalism issues, and less inclined towards drama (unlike Kennedy and Gorsuch). He'd also be a first - not until Gorsuch OTL did a clerk serve alongside their boss. Ginsburg was a clerk for Thurgood Marshall. For a short time, there could be a Scalia-Brennan-Marshall-Blackmun-Ginsburg liberal majority on criminal procedure issues.

 

[Jackson Lennock]

If HW had been reelected, O'Connor hoped to retire in 1996 - just in time to get her Supreme Court Pension.

I wonder who'd have been put on to replace her. On the one hand, HW may have a very Democratic Senate to deal with after 16 years of Republican Presidents. On the other hand, much of the 1994 midterm gains the GOP experienced could be chalked up to two factors that will still be present: (a) the rise of talk radio calling out Democrats who talked conservative but voted liberal, and (b) a lot of old Conservative democratic officeholders were the only reason their districts remained Democratic, and when they aged out of office the districts defaulted to Conservative Republicans. The GOP could still see gains, but more modest ones than in 1994 historically.

With O'Connor the only woman, there'd be extra pressure to replace her with a woman. But if you want a Conservative woman nominee who is at least as Conservative as O'Connor, there are only so many options.

1. Edith Jones (Court of Appeals since 1985)(47 Years old) would be a possibility, and perhaps with Kennedy seen as a pro-choice vote there would not be too much opposition to her. But, Edith Jones is still close to the realm of "thermonuclear."
2. Priscilla Owen (Texas Supreme Court since January 1995) would have spent about a year and a half on the Texas Supreme Court by this point, making her a possibility.
3. Edith Brown Clement (District Court since 1991)(48 years old) is a possibility.
4. Carla Anderson Hills would be 62 - an older choice for a Supreme Court pick, but Ginsburg was 60 OTL when picked. She'd already been Senate confirmed in the HW Administration, and despite the possibility of O'Connoresque moderate swings, she supported the Bork nomination and likely could get Conservative support.
5. Alice Batchelder (52 years old). Bankruptcy Court Judge 1983 to 1985; District Court Judge 1985 to 1991; Court of Appeals Judge 1991. Considered by critics to be more conservative than Rehnquist.

 

[Elektronaut]

I don't see O'Connor retiring that early at all, no justice is going to willingly choose to retire in an election year (And if they did, their seat wouldn't be filled by the sitting president any more than Scalia's, Fortas' and Warren's were) and no, the GOP is unlikely to do very well in the Senate. That was on the back of a truly disastrous first two years of Clinton's presidency, the heavy unpopularity of said incumbent, particularly with swing voters, and a fairly sluggish recovery. (A majority of people still thought the country was in recession) Until 2002 - which I think we can agree was somewhat exceptional given events of the previous year - the incumbent president's party hadn't gained seats in a mid-term election since 1934, btw.

 

[Jackson Lennock]

I don't see O'Connor retiring that early at all, no justice is going to willingly choose to retire in an election year (And if they did, their seat wouldn't be filled by the sitting president any more than Scalia's, Fortas' and Warren's were) and no, the GOP is unlikely to do very well in the Senate. That was on the back of a truly disastrous first two years of Clinton's presidency, the heavy unpopularity of said incumbent, particularly with swing voters, and a fairly sluggish recovery. (A majority of people still thought the country was in recession) Until 2002 - which I think we can agree was somewhat exceptional given events of the previous year - the incumbent president's party hadn't gained seats in a mid-term election since 1934, btw.

I didn't say do very well, I said "[t]he GOP could still see gains, but more modest ones than in 1994 historically." 1994 was a convergence of a great many factors: talk radio, blue dogs aging out, the GOP targeting many Perot voters, and Clinton's failures. Two of the facts will still be there, so I think some *modest* gains are possible.

And in 2018, the GOP gained Senate Seats. That was the product of forces other than the President's popularity - like which candidates were up for reelection that year - but the same principle holds in my '1994 would seem some GOP gains but be more of a wash than a wave' hypothesis.

O'Connor's Biography First said she wanted to retire in 1996. Maybe she gets Biden Rule'd, but maybe not.


The opposition to Fortas was bipartisan, though it was ideological. The Scalia fight was distinguishable in that respect.

 

[Ricardolindo]

I don't see O'Connor retiring that early at all, no justice is going to willingly choose to retire in an election year (And if they did, their seat wouldn't be filled by the sitting president any more than Scalia's, Fortas' and Warren's were) and no, the GOP is unlikely to do very well in the Senate. That was on the back of a truly disastrous first two years of Clinton's presidency, the heavy unpopularity of said incumbent, particularly with swing voters, and a fairly sluggish recovery. (A majority of people still thought the country was in recession) Until 2002 - which I think we can agree was somewhat exceptional given events of the previous year - the incumbent president's party hadn't gained seats in a mid-term election since 1934, btw.

Agreed with your broader point, but note Fortas resigned in 1969, not 1968.

 

[Jackson Lennock]

Arthur Goldberg was Warren's preferred successor OTL, and after the Fortas elevation failure, Johnson considered recess appointing him to the position of Chief Justice.

What if Johnson had gone with Goldberg from the get go? I know it's unlikely - Johnson wanted to reward his ally Fortas - but maybe Johnson catches wind of Fortas's issues and the Conservative Coalition's plan to filibuster him and decides to go with the less controversial Goldberg.


Nixon's FBI might still force Fortas off of the bench in 69, but without being in the spotlight Fortas might not get caught. It also seems possible Fortas will quit the Court at some point on his own, since Fortas seemed to not like the relatively unglamorous life on the Supreme Court.

 

[Francisco Cojuanco]

Everyone of course likes to talk about the Abortion Cases, but I wonder - what would happen if the Court ruled the other way on Mapp v. Ohio in 1961 and declined to incorporate the Exclisionary Rule for illegally obtained evidence in state court?

IIRC the pre-Mapp policy was that while constitutionally suspect evidence was a bad thing, the solution was not to exclude as fruit of the poisonous tree, but for aggrieved defendants to sue the state for damages.

I think you'd have for better or worse an even stronger advantage to the prosecution in criminal cases, especially as most criminal defendants can't afford civil litigation.

 

[Ricardolindo]

Arthur Goldberg was Warren's preferred successor OTL, and after the Fortas elevation failure, Johnson considered recess appointing him to the position of Chief Justice.

What if Johnson had gone with Goldberg from the get go? I know it's unlikely - Johnson wanted to reward his ally Fortas - but maybe Johnson catches wind of Fortas's issues and the Conservative Coalition's plan to filibuster him and decides to go with the less controversial Goldberg.


Nixon's FBI might still force Fortas off of the bench in 69, but without being in the spotlight Fortas might not get caught. It also seems possible Fortas will quit the Court at some point on his own, since Fortas seemed to not like the relatively unglamorous life on the Supreme Court.

A good point of divergence for this may be Warren advising Johnson that nominating Fortas would be politically unwise.

 

[Jackson Lennock]

Everyone of course likes to talk about the Abortion Cases, but I wonder - what would happen if the Court ruled the other way on Mapp v. Ohio in 1961 and declined to incorporate the Exclisionary Rule for illegally obtained evidence in state court?

IIRC the pre-Mapp policy was that while constitutionally suspect evidence was a bad thing, the solution was not to exclude as fruit of the poisonous tree, but for aggrieved defendants to sue the state for damages.

I think you'd have for better or worse an even stronger advantage to the prosecution in criminal cases, especially as most criminal defendants can't afford civil litigation.

Yes and no. The Exclusionary Rule (Weeks, Mapp) was the companion to the Mere Evidence Rule (Gouled, Wolf) - both resulting from the rule of Boyd: That the Rights of Person and Property (the Fourth and Fifth Amendments) should be construed in light of one another. The Court abolished the Mere Evidence Rule in 1966 and 1967 (Schmerber v California and Warden v Hayden) and replaced the long-existing property-based approach to the Fourth Amendment's substantive guarantee with a privacy approach in Katz.

Without the extension of the Exclusionary Rule to the States, its possible that the Mere Evidence Rule's Substantive Guarantees wouldn't have to be watered down. Alternatively, Harlan's Katz Concurrence (which effectively amounts to property-based analysis not dissimilar to some Scalia analysis of what constitutes a 'license' under property law down the line, though he clearly hated admitting it). Harlan poured water on Stewart saying 'the Fourth Amendment protects people not places' by pointing out that you can't protect a person without saying how you're going to protect them (i.e., by protecting their persons, papers, possessions, effects, and homes). Property analysis was a subcomponent of a bigger umbrella you could call privacy. And - what a lot of folks forget - is that Brandeis's Olmstead dissent was about the rule of Boyd!

The fact that this 'privacy is just criminal procedure, property, and rules of evidence' approach makes no sense to people in 2022 (or 2000 ... or 1980) is because there was a campaign from about 1950 to 2000 by many Justices to weaken the Fourth Amendment; and one that mostly succeeded! Criminal Procedure is a weird issue that crosses normal ideas of left and right.


Without Mapp, there might be much much much less incentive to gut the substantive guarantee of the Fourth Amendment, because by acknowledging the Fourth Amendment violation you won't be opening up the possibility that an actually guilty person goes free.

But damages won't be of much use if the Court still divines qualified immunity from the ether in Pierson v Ray.

 

[Ricardolindo]

Had the Sixth Circuit ruled in favor of same-sex marriage, would the US Supreme Court have ever made an Obergefell analogue decision, legalizing same-sex marriage nationwide?

So, does anyone have any thoughts on this?

 

[Jackson Lennock]

Had the Sixth Circuit ruled in favor of same-sex marriage, would the US Supreme Court have ever made an Obergefell analogue decision, legalizing same-sex marriage nationwide?

We have no idea what you're talking about unless you explain more.

 

[Jackson Lennock]

What if the Trimester framework of Roe had been scrapped in 1986? Or not reaffirmed/adopted in 1983?

From 1981 to 1985, Alito was Assistant to U.S. Solicitor General Rex E. Lee. In that capacity he argued 12 cases before the Supreme Court for the federal government. In Thornburgh v. American College of Obstetricians & Gynecologists (1986), the Supreme Court ruled against Charles Fried after he rejected a memo by Alito urging the Solicitor General to avoid directly attacking the constitutional right to an abortion. Alito lost only two of the cases he argued before the Supreme Court.

The gist of the case was that the 'undue burden' standard was the standard used by the Supreme Court in Maher v. Roe (1977), Bellotti v. Baird (1979), and Simoupoulos v. Virginia (1982), and that the 'Trimester' framework in Roe was actually dicta (i.e., advisory stuff shoved into the Roe opinion, since the regulations in Roe requiring six doctors to approve an abortion would have failed under a narrower basis of decision as well) and didn't actually become the law until Akron in 1983. Burger and Powell by 1977 were already starting to raise eyebrows at the other Justices going beyond what Roe actually said.

You in theory could have a majority of Burger-Powell-O'Connor-Rehnquist-White for a narrower decision not overruling Roe and codifying the undue burden standard in 1983 or in 1986. If this happens, it takes a lot of the steam out of the frustration with Roe (since the Trimester framework really was unworkable, as any regulation affecting an abortion provider after the first Trimester would definitely apply before the first Trimester as well).

Powell later said he disagreed with the Webster decision and pointed to Akron. It's not clear if his frustration was with Rehnquist's plurality or with O'Connor though. I think you could at least have Powell as a controlling plurality (maybe joined by Burger and/or Stevens) in Akron or Thornburgh, agreeing with O'Connor on the law but disagreeing on the facts (Stevens basically did this in Planned Parenthood v. Casey).

 

[Elektronaut]

We have no idea what you're talking about unless you explain more.

I think he's talking about DeBoer v Snyder etc. I think the answer to the query is very clearly no, if the sixth circuit had ruled differently it wouldn't have made any difference nationally given the Obergefell cases would still have progressed to the SCOTUS and I don't see why they would have ruled differently.

 

[Ricardolindo]

We have no idea what you're talking about unless you explain more.

I think he's talking about DeBoer v Snyder etc. I think the answer to the query is very clearly no, if the sixth circuit had ruled differently it wouldn't have made any difference nationally given the Obergefell cases would still have progressed to the SCOTUS and I don't see why they would have ruled differently.

Apologies for not explaining myself better. As @Elektronaut said, I was refering to DeBoer v. Snyder, the Sixth Circuit decision which upheld Michigan's same-sex marriage ban. It caused a circuit split which led the Supreme Court to grant certioari to the cases which were consolidated as Obergefell v. Hodges. All those cases were in states under the juridisction of the Sixth Circuit. If the Sixth Circuit had ruled in favor of same-sex marriage, wouldn't it have struck it down the same-sex marriage bans in all those states?

 

[Jackson Lennock]

The Fourteenth Amendment has been the mechanism by which the Bill of Rights have been applied against the States, first doing so in 1897. But while the Supreme Court first ruled that the Bill of Rights did not apply against the States in 1833's Barron v. Baltimore, there's no clear reason why that out come had to happen. It was a unanimous opinion, but the Marshall Court had a habit of telling dissenters to suck it up and join a majority so as to build respect for the Court. Earlier that year, one member member of the Barron Court had even suggested that the Second and Fourth Amendments apply to the States, and several State Supreme Courts (PA, NY, and GA) suggested that provisions of the Second and Fifth Amendments apply to the States. In the Bill of Rights, only the First, Sixth, and Seventh Amendments address the Federal Government (and, notably, Madison sought to apply the First and Sixth Amendments against the States...).

One could theoretically differentiate the Second, Fourth, Fifth, and Eighth Amendments from the others since they do not address a Federal Proceeding or the Federal Government (First to Congress, Seventh to Courts of the United States). The Sixth Amendment is in between, since it references Districts (as in Federal Judicial Districts) which are defined by Federal law, but there are other provisions separated by semi-colons (production of witnesses for the defendant, right to counsel, and confrontation of one's accuser) that could be applied against the States.

Notably, Madison had a rejected Amendment that would have applied guarantees of the First Amendment and the portions of the Sixth which (under my proposed separation) only apply to the Federal Government to the states. The uber-federalist reading of the Bill of Rights perhaps has some justification by omission.

So the provisions as applied to the states, if Barron went differently, could be ...

Second Amendment: A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.
Fourth Amendment: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
Fifth Amendment: No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.
Sixth Amendment: In all criminal prosecutions, the accused shall enjoy the right [deleted] to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.
Eighth Amendment: Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

Also of note are the express limits on the Powers of the States in Article I, Section 10; Article IV; and Article VII which mostly have to do with contract, judicial rulings, and economic interests. All essentially serve the function of equal treatment of people in different states with respect to various rights considered fundamental.

A big question which would emerge quickly is whether continued slavery constitutes deprivation of liberty without due process of law, however. My guess is the Marshall Court would finesse the issue to avoid conflict in a way the Taney Court didn't, however.

 

[Ricardolindo]

A big question which would emerge quickly is whether continued slavery constitutes deprivation of liberty without due process of law, however. My guess is the Marshall Court would finesse the issue to avoid conflict in a way the Taney Court didn't, however.

IIRC, only a few radical abolitionists found such an idea plausible.