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Alternate Supreme Courts Thread

A popular scenario is Reagan nominating Bork for Rehnquist's seat in 1986 and Scalia for Powell's seat in 1987. This probably would have worked as the Republicans controled the Senate in 1986 and there would be less opposition to Bork succeeding Rehnquist, the most conservative Justice, than succeeding Powell, a moderate conservative and a swing vote. Scalia hadn't yet said anything as controversial as some things Bork had said and had the advantage of being an Italian-American. However, unlike others, I don't think this necessarily means a more conservative Supreme Court. In 1991, more Senators may have thought the Supreme Court was too conservative and voted against confirming Clarence Thomas.
 
If Richard Nixon was President in 1960, I could see William T Coleman or William H Hastie nominated to be the first Black Justice instead of the much more liberal Thurgood Marshall.

Kennedy considered Hastie OTL for the seat that went to Byron White OTL, but he opted not to nominate Hastie because (a) Kennedy wasn't sure he'd have the votes for a Black nominee in 1962 [especially since he was trying to confirm a Black cabinet member at the same time] and (b) Warren and Douglas said he'd be too Conservative [Hastie was liberal on Civil Rights issues, and a closer look shows he was somewhat moderate on Fourth and First Amendment issues, but otherwise was a Frankfurter'esque supporter of judicial restraint]. Ironically, he sounds a lot like Byron White who was later considered pretty Conservative for a Democratic appointee. Hastie was beyond qualified - a District Court Judge for 2 Years, Circuit Court Judge for 13 by that point, a territorial Governor for 3 years, Dean of Howard Law School, and a few other government posts and some private practice experience.

Coleman was the backup if Marshall failed OTL. The first Black Supreme Court Clerk and probably somewhere between Lewis Powell and Anthony Kennedy on the ideological scale, he was supportive of shifting much economic decisionmaking back to the states and the private sector as a political actor and argued for limiting federal Commerce power in 1983.



If Nixon is interested in preserving the 'Jewish Seat' that went to Goldberg, Henry Friendly or Paul Freund. Freund might be able to get a seat separate from that though, since Kennedy considered him strongly for two seats OTL and before that he was appointed by Eisenhower to a prominent legal position. But I really doubt Nixon would be interested in that. But both are also figures who'd be considered on their own merits.

Thomas Dewey would be considered for a position on the Court. Nixon tried to convince him OTL, IIRC. But Dewey was making millions as a private lawyer, so I don't think he'd want to give that up.

Warren Burger might get put on the Court much earlier. Eisenhower considered him OTL.

Herbert Brownell, Eisenhower's AG, seems like a possibility.
 
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Ricardolindo said:
A popular scenario is Reagan nominating Bork for Rehnquist's seat in 1986 and Scalia for Powell's seat in 1987. This probably would have worked as the Republicans controled the Senate in 1986 and there would be less opposition to Bork succeeding Rehnquist, the most conservative Justice, than succeeding Powell, a moderate conservative and a swing vote. Scalia hadn't yet said anything as controversial as some things Bork had said and had the advantage of being an Italian-American. However, unlike others, I don't think this necessarily means a more conservative Supreme Court. In 1991, more Senators may have thought the Supreme Court was too conservative and voted against confirming Clarence Thomas.
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Assuming Bork and Scalia get on the court I can think of two cases that go the other way. Lee V. Texas which with Bork on the court would've banned flag burning and Lawrence V. Texas in which ITTL homosexuality would be a criminal offense until a more liberal court came along. The latter may go the other way. If he nominates a conservative woman like Edith Jones, then what I laid out doesn't change. Needless to say, but both cases would be disastrous as the former undermines freedom of speech, but I doubt it'll change anything in the long run. The Alien and Sedition Acts were upheld, and we didn't become a dictatorship and the latter IMO doesn't need an explanation.
 
ZeroFrame said:
Assuming Bork and Scalia get on the court I can think of two cases that go the other way. Lee V. Texas which with Bork on the court would've banned flag burning and Lawrence V. Texas in which ITTL homosexuality would be a criminal offense until a more liberal court came along. The latter may go the other way. If he nominates a conservative woman like Edith Jones, then what I laid out doesn't change. Needless to say, but both cases would be disastrous as the former undermines freedom of speech, but I doubt it'll change anything in the long run. The Alien and Sedition Acts were upheld, and we didn't become a dictatorship and the latter IMO doesn't need an explanation.
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The flag burning case was Texas v. Johnson, not Lee v. Texas.
As for Lawrence v. Texas, the Texas law and other sodomy laws that only applied to same-sex partners would still be struck down because of O'Connor's Equal Protection vote and very few, if any, states would have been willing to apply their laws to opposite sex couples, though.
BTW, as I said, in this scenario, in 1991, more Senators may have thought the Supreme Court was too far to the right and voted against confirming Clarence Thomas.
 
@Elektronaut has argued that if John O'Connor had died in 2004 or early 2005, Sandra Day O'Connor would not have retired. Then, when do you think her own Alzheimer's would have forced her to retire?
 
ZeroFrame said:
Assuming Bork and Scalia get on the court I can think of two cases that go the other way. Lee V. Texas which with Bork on the court would've banned flag burning and Lawrence V. Texas in which ITTL homosexuality would be a criminal offense until a more liberal court came along. The latter may go the other way. If he nominates a conservative woman like Edith Jones, then what I laid out doesn't change. Needless to say, but both cases would be disastrous as the former undermines freedom of speech, but I doubt it'll change anything in the long run. The Alien and Sedition Acts were upheld, and we didn't become a dictatorship and the latter IMO doesn't need an explanation.
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Do you mean Texas v. Johnson, not Lee v. Texas?

Lawrence v. Texas would still have O'Connor as the Swing vote. OTL it was a 6-3, but O'Connor concurred instead of joining the majority since she thought it was an Equal Protection issue not a Due Process/Privacy issue. If you think that was just O'Connor trying to go for a narrower opinion and she wouldn't be the tiebreaker if it came down to her, I'd point you to Romer v. Evans in 1996 which was a 6-3 on Equal Protection grounds.

Edith Jones being there instead of Souter changes things though. Then it's 5 outright Capital-C Conservatives (Rehnquist, Bork, Scalia, Thomas, and Jones).

EDIT: I now see Ricardolindo beat me to the punch on the O'Connor point.

I don't see why Thomas is blocked in 1991. He didn't have a big paper trail.
 
Jackson Lennock said:
Do you mean Texas v. Johnson, not Lee v. Texas?

Lawrence v. Texas would still have O'Connor as the Swing vote. OTL it was a 6-3, but O'Connor concurred instead of joining the majority since she thought it was an Equal Protection issue not a Due Process/Privacy issue. If you think that was just O'Connor trying to go for a narrower opinion and she wouldn't be the tiebreaker if it came down to her, I'd point you to Romer v. Evans in 1996 which was a 6-3 on Equal Protection grounds.

Edith Jones being there instead of Souter changes things though. Then it's 5 outright Capital-C Conservatives (Rehnquist, Bork, Scalia, Thomas, and Jones).

EDIT: I now see Ricardolindo beat me to the punch on the O'Connor point.

I don't see why Thomas is blocked in 1991. He didn't have a big paper trail.
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Clarence Thomas nearly was defeated in our timeline and I have read a claim that Dole fooled two Republican Senators into believing the other would vote for him.
 
One TL idea I've long floated with is a POD of Biden allowing the other women to testify corroborating Anita Hill's testimony, sinking Thomas' nomination.

Some butterflies I imagined from this:
  1. The fact that Hill would be vindicated could inspire other women to come forward and tell their own stories of sexual harassment or assault, and Republicans will definitely be quick to emphasize such messages when they come against Democrats. One could imagine Juanita Broaddrick accusing Bill Clinton of rape earlier ITTL, during the 1992 primaries. I imagined that forcing Mario Cuomo to enter the race just ahead of the NH primary as he considered doing even without a Clinton implosion.
  2. Bush would either appoint Emilio Garza or Edith Jones to the Bench. There's a strong case to be made for Garza as he was the runner-up and would provide racial diversity on the Court. After all, this is a nominee to replace Thurgood Marshall. That said, I think the Hill testimony could conceivably compel Bush to name a woman, and Jones placates the right more than Garza would. There would probably be opposition to Jones, but I think she'd ultimately get confirmed.
  3. With two women on the Court during the Casey decision, things go a bit differently. O'Connor, as per OTL, tries to salvage Roe in some way. Jones, on the other hand, would have no qualms about overturning it, and Kennedy may be inclined to side with the conservatives in overturning it as he originally intended to do if there would be a woman in the majority. Casey therefore overturns Roe instead of adjusting the standard and introducing the idea of "undue burdens." Suddenly, abortion becomes a major national political issue. Bush stumbles his way through it all and helps Cuomo/Richards win in November.
  4. Some other changes down ballot, including Specter losing his reelection campaign and Geraldine Ferraro winning the NY Senate primary and going on to win the general against Al D'Amato.
 
Vidal said:
One TL idea I've long floated with is a POD of Biden allowing the other women to testify corroborating Anita Hill's testimony, sinking Thomas' nomination.

Some butterflies I imagined from this:
  1. The fact that Hill would be vindicated could inspire other women to come forward and tell their own stories of sexual harassment or assault, and Republicans will definitely be quick to emphasize such messages when they come against Democrats. One could imagine Juanita Broaddrick accusing Bill Clinton of rape earlier ITTL, during the 1992 primaries. I imagined that forcing Mario Cuomo to enter the race just ahead of the NH primary as he considered doing even without a Clinton implosion.
  2. Bush would either appoint Emilio Garza or Edith Jones to the Bench. There's a strong case to be made for Garza as he was the runner-up and would provide racial diversity on the Court. After all, this is a nominee to replace Thurgood Marshall. That said, I think the Hill testimony could conceivably compel Bush to name a woman, and Jones placates the right more than Garza would. There would probably be opposition to Jones, but I think she'd ultimately get confirmed.
  3. With two women on the Court during the Casey decision, things go a bit differently. O'Connor, as per OTL, tries to salvage Roe in some way. Jones, on the other hand, would have no qualms about overturning it, and Kennedy may be inclined to side with the conservatives in overturning it as he originally intended to do if there would be a woman in the majority. Casey therefore overturns Roe instead of adjusting the standard and introducing the idea of "undue burdens." Suddenly, abortion becomes a major national political issue. Bush stumbles his way through it all and helps Cuomo/Richards win in November.
  4. Some other changes down ballot, including Specter losing his reelection campaign and Geraldine Ferraro winning the NY Senate primary and going on to win the general against Al D'Amato.
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I don't think Bush would nominate Jones. Garza was the only other candidate considered and Bush actually prefered him but he had only been on the Fifth Ciruit a few weeks. Note how, at the time, it was thought that the only way someone as conservative as Clarence Thomas could be confirmed was if they were black.
 
Ricardolindo said:
I don't think Bush would nominate Jones. Garza was the only other candidate considered and Bush actually prefered him but he had only been on the Fifth Ciruit a few weeks. Note how, at the time, it was thought that the only way someone as conservative as Clarence Thomas could be confirmed was if they were black.
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you don’t think it’s plausible that a nominee going down in a sexual harassment scandal could change his calculus at all?
 
Hugo Black wanted Frank M Johnson to replace him on the bench. This is really something, considering Johnson was a Republican and Black thought Republican was a dirty word.

He'd possibly be somewhat more liberal on racial issues than others, but otherwise I image he'd be a centrist. Assuming he gets the seat that went to Powell OTL, it wouldn't change much. Maybe he'd be more conservative on abortion or women's rights and perhaps more liberal on criminal procedure.

*****

Jose Cabranes is a conservative-for-a-democrat judge on the Second Circuit who was considered for the Ginsburg and Breyer seats. If he'd been picked, I don't think he'd have been interested in upsetting liberal precedents, but decisions might be more conservative in other areas like policing or the war on terror.
 
Jackson Lennock said:
Hugo Black wanted Frank M Johnson to replace him on the bench. This is really something, considering Johnson was a Republican and Black thought Republican was a dirty word.

He'd possibly be somewhat more liberal on racial issues than others, but otherwise I image he'd be a centrist. Assuming he gets the seat that went to Powell OTL, it wouldn't change much. Maybe he'd be more conservative on abortion or women's rights and perhaps more liberal on criminal procedure.

*****

Jose Cabranes is a conservative-for-a-democrat judge on the Second Circuit who was considered for the Ginsburg and Breyer seats. If he'd been picked, I don't think he'd have been interested in upsetting liberal precedents, but decisions might be more conservative in other areas like policing or the war on terror.
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The problem with Johnson is that he was a mere District Court judge. The last one nominated to the Supreme Court was Edward Sanford.
 
Ricardolindo said:
The problem with Johnson is that he was a mere District Court judge. The last one nominated to the Supreme Court was Edward Sanford.
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Yes but Johnson was much more highly respected than a typical District Court judge. Folks joked when Wallace was out of State that he was the real Governor.
 
Jackson Lennock said:
Yes but Johnson was much more highly respected than a typical District Court judge. Folks joked when Wallace was out of State that he was the real Governor.
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Still, I think it would have helped if he had been a Circuit Court Judge.
BTW, do you think Black would have preferred to retire under a Democratic President if his health was better? While a liberal, in his final decade on the Court, he had become more of a conservative Justice because of his opposition to new liberal visions of the constitution, especially substantive due process.
 
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Black generally distrusted Republicans and would have preferred to retire under a Democrat. But he also really liked being on the bench and stayed on for as long as he could. He died just a week after he resigned OTL.
 
Without Watergate, who do you think Nixon would have nominated to succeed William O. Douglas? Would it have been someone more conservative than John Paul Stevens? He had promised Bork the next vacancy.
 
Ricardolindo said:
A popular scenario is Reagan nominating Bork for Rehnquist's seat in 1986 and Scalia for Powell's seat in 1987. This probably would have worked as the Republicans controled the Senate in 1986 and there would be less opposition to Bork succeeding Rehnquist, the most conservative Justice, than succeeding Powell, a moderate conservative and a swing vote. Scalia hadn't yet said anything as controversial as some things Bork had said and had the advantage of being an Italian-American. However, unlike others, I don't think this necessarily means a more conservative Supreme Court. In 1991, more Senators may have thought the Supreme Court was too conservative and voted against confirming Clarence Thomas.
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Would Bork have stayed on the Court until his death on 19 December 2012 or would he have retired under Bush if his presidency is not butterflied?
 
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