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Alternate Supreme Courts Thread

JesterBL said:
I think honestly if you get a judicial decision which in any way undermines slavery you just get a different "John Marshall has made his decision, now let him enforce it" which probably undermines judicial review and the rule of law in the US even more severely than IOTL.
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Sorry for being pedantic, but, in case you don't know, Andrew Jackson never actually said that. John Marshall never actually told him to enforce anything.
 
Ricardolindo said:
Sorry for being pedantic, but, in case you don't know, Andrew Jackson never actually said that. John Marshall never actually told him to enforce anything.
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I'm aware it's not an exact quote (I believe it was first attested to by Horace Greeley of all people) and that the Federal Government was not directly asked to intervene but Jackson did say that the Supreme Court would be unable to coerce the State of Georgia into complying with their ruling. The fictional one is more pithy than the real quote, but its been years since I read about it.

I think a sweeping decision about slavery would have a much bigger impact and more fiery reaction. We (modern Americans) are used to divisive issues being decided by the Supreme Court. 19th Century Americans were not.
 
The gist appears to have been that Due Process of Law only referred to preestablished positive law, which is why Taney is considered to have done Substantive Due Process in Dred Scott ... he defined 'property' when it was up to Congress (or a State) to define what property meant. Furthermore, since the Somerset case, the general position appears to have been that where slavery is clearly established, it was to remain, but ambiguities were to be decided in favor of liberty, freedom, and emancipation. Dred Scott, by this logic, was contrary to Somerset and long established principals of law in that respect as well.

I doubt the Marshall Court would have acted directly against slavery (after all, Marshall was a slaveholder) but I doubt they'd go the full Taney either. Marshall thought slavery was evil, represented slaves pro-bono in his youth, but also was skeptical of mass emancipation. My guess is there'd be chipping away at slavery on the margins in ways that most Americans North and Upper South would have found unobjectionable, and emphasis that emancipation was a one-way transition legally-speaking, but nothing directly going after the institution.

The legal rights of slaves - including a right of self defense in criminal/capital contexts - are a weird subject of historical analysis. One could observe this case - in which an all white man jury sentenced a black slave woman to death - but it's a bit confounding that she got a trial at all. Apparently southerners enjoyed boasting to northerners about this sort of thing to contend that they weren't so bad ... which I imagine most folks found very unpersuasive an argument.
 
If Nixon wins in 1960, that's quite the difference for the Court. OTL, Kennedy replaced Whittaker with White and Frankfurter with Goldberg, one Conservative and one liberal. Kennedy also teed up Thurgood Marshall by making him a Circuit Court judge. Plus, without Kennedy there's no Johnson, who forced Tom Clark off the bench (by making his son Solicitor General), got Fortas on the bench (by convincing Goldberg to step down), and put Marshall up.

Who would Nixon put up? In all likelihood, he'd only get two appoints since Clark probably wouldn't retire as early as he did OTL without the conflict of interest resulting from his son being Solicitor General.


William T Hastie was considered for the seat which went to White OTL. He was considered moderate to conservative on issues other than Civil Rights, and another vote for the Frankfurter Bloc. But an African-American nominee would be tough to confirm, and Hastie was a Democrat.
Nixon offered Dewey a spot on the Court, but he said no. Dewey liked the money he was making in the private sector too much.
Warren Burger would have served since 1956, and been a possibility.
Henry Friendly would have served since 1959, and might be a fit for the Frankfurter seat.

If a seat opens up later on, William T Coleman or Lewis Powell could be possibilities.
 
@Ricardolindo you might enjoy this.


Henry Friendly was considered for the position of Chief Justice by Nixon and floated as a possibility for the Fortas seat. Nixon was pretty opposed to keeping the tradition of the "Jewish Seat" though, and mostly interested in regional diversity and getting a Southerner in the Fortas seat, so that didn't pan out. Friendly is considered a Conservative Judge, but he seems to have been sort of the History-minded disposition of an originalist crossed with the more moderate approach of others like Harlan, Powell, O'Connor, and Kennedy.

Anyways, Friendly (a) supported invalidating the laws in Roe v. Wade as unconstitutional and (b) was actually a kind of mentor to Thurgood Marshall while they served together on the Second Circuit. He'd probably be in the same camp as Potter Stewart - inclined towards viewing Roe as a doctor's rights case, and using that as the basis of decision. The case immediately before Roe was a criminal procedure case which determined that ambiguities should be resolved in favor of licensed professionals.

If Friendly is put up instead of Blackmun, you could get a narrower Roe written by one of the Country's leading Conservative judges.



Friendly might also make Brennan's life quite miserable by spotting the games he played in opinions routinely and by luring Marshall away from Brennan's camp. Brennan was quite depressed OTL until he converted Blackmun into his camp. Friendly would likely have the opposite effect, and produce a more center-right court.

Friendly seemed much more rigid on the inviolate nature of Constitutional provisions than others did, though. He had a narrower view of the Fourth Amendment or the Fifth Amendment than others, but insisted that what remained couldn't be thrown out. By contrast, other Conservatives (like Rehnquist and Burger) basically didn't care about some of this stuff. Friendly could be Scalia'esque in some Criminal Procedure matters.
 
If Nixon won in 1960, the Supreme Court would be different but I'm not sure how different.

Warren Burger was a contender for the choice that went to Charles E Whitaker OTL, so he might be a go-to pick to replace Whitaker instead of Byron White. Given that White was largely a moderate-to-conservative pick (liberal with respect to national power and racial issues, but conservative on Individual Rights matters), Burger doesn't change that much.

Henry Friendly might replace Frankfurter in the "Jewish Seat" if Nixon feels like keeping that tradition. He was a prominent Conservative Judge and an acolyte of Harlan, Brandeis, and Frankfurter. Nixon had no interest in keeping the seat around in 1969, but this would be 1962 and his descent into madness seemed to really kick off after the 1960 Presidential Election and 1962 California Gubernatorial Election.

Another possibility, if Nixon wants to push the boundaries and continue a civil rights legacy (beginning in 1957 with the Civil Rights Act he helped put through), William H Hastie or William T Coleman. Kennedy considered Hastie OTL for the seat that went to Byron White and essentially a moderate center-right Judge. Liberal on some Speech, Fourth Amendment, Establishment, and Racial issues but otherwise Conservative (which was basically what a moderate-to-conservative Republican appointee tended to be at the time). Coleman was a Lewis Powell/John Marshall Harlan Moderate Conservative and a Frankfurter Clerk, as well as prominent Supreme Court litigator.

I'm not sure if Nixon could get more than two appointments. Warren retired under LBJ in order to avoid Nixon replacing him. But Warren also might not be afraid of a Nixon whose record on racial and cultural issues is more liberal. Tom Clark retired because LBJ sort of forced him out by making Ramsey Clark (Tom's son) the Solicitor General. Nixon wouldn't put somebody that liberal in that job, and Tom Clark might stick around for four years longer until he physically cannot do the job anymore.

Elbert Tuttle is a Fifth Circuit Eisenhower pick who held the line during the Civil Rights movement.
Thomas Dewey was offered a Supreme Court post several times by Nixon and Eisenhower (including Chief Justice) but he preferred to stay in private practice.
 
Supreme Court at the time of the oral arguments on Northern Coven v. Jeppesen
Chief Justice: John Roberts (appointed by J. Bush in 2005, replaced Rehnquist, moderate)
Seat 1: Thomas Hardiman (appointed by Daniels in 2017, replaced Kennedy, conservative)
Seat 2: Stephen Breyer (appointed by Clinton in 1994, replaced Blackmun, liberal)
Seat 3: José Cabranes (appointed by Gore in 2001, replaced Souter, liberal)
Seat 4: Diane Wood (appointed by Weiner in 2010, replaced Stevens, liberal)
Seat 6: Marci Hamilton (appointed by Daniels in 2020, replaced Ginsburg, moderate)
Seat 8: Ruben Castillo (appointed by Gore in 2004, replaced O'Connor, moderate)
Seat 9: Don Willett (appointed by Daniels in 2014, replaced Scalia, conservative)
Seat 10: Sri Srinivasan (appointed by Daschle in 2012, replaced Kearse, moderate)

Case opinions
Majority - Wood, joined by Breyer, Cabranes, Castillo, and Hamilton
Concurrence - Roberts, Srinivasan (in judgement)
Dissent - Willett, Hardiman
 
rpryor03 said:
Supreme Court at the time of the oral arguments on Northern Coven v. Jeppesen
Chief Justice: John Roberts (appointed by J. Bush in 2005, replaced Rehnquist, moderate)
Seat 1: Thomas Hardiman (appointed by Daniels in 2017, replaced Kennedy, conservative)
Seat 2: Stephen Breyer (appointed by Clinton in 1994, replaced Blackmun, liberal)
Seat 3: José Cabranes (appointed by Gore in 2001, replaced Souter, liberal)
Seat 4: Diane Wood (appointed by Weiner in 2010, replaced Stevens, liberal)
Seat 6: Marci Hamilton (appointed by Daniels in 2020, replaced Ginsburg, moderate)
Seat 8: Ruben Castillo (appointed by Gore in 2004, replaced O'Connor, moderate)
Seat 9: Don Willett (appointed by Daniels in 2014, replaced Scalia, conservative)
Seat 10: Sri Srinivasan (appointed by Daschle in 2012, replaced Kearse, moderate)

Case opinions
Majority - Wood, joined by Breyer, Cabranes, Castillo, and Hamilton
Concurrence - Roberts, Srinivasan (in judgement)
Dissent - Willett, Hardiman
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I don't think Souter would retire so early (he wanted his pension, which required 15 years) nor would O'Connor; but I do enjoy your timeline.

Is the POD starting in the 90s, with Kearse getting appointed instead of Ginsburg?
 
The Goldberg Court in 1972 (Humphrey Wins)

Arthur Goldberg (Chief Justice) (1969) Liberal
William J Brennan (1957) Liberal
Potter Stewart (1957) Moderate-to-Conservative
Byron White (1962) Moderate-to-Conservative
Thurgood Marshall (1967) Liberal
Homer Thornberry (1969) Moderate
Shirley Hufstedler (1970) Liberal
Frank M Johnson (1971) Moderate
William T Coleman (1971) Moderate



Hubert Humphrey won a peculiar victory in 1968. On the one hand - he won! On the other hand, the Republicans clawed their way to 45 Senate Seats. Without support from either the Conservative Democrats or Moderate Republicans, Humphrey would not be able to govern. Meanwhile, the unity of the Warren Court was beginning to fracture: Justices Black, White, Stewart, and Harlan - depending on the issue, were breaking Conservative. The Court had stood united so long as the questions were limited to desegregation and incorporation of the Bill of Rights against the states, but as the questions such as the Scope of the Rights, how aggressively to enforce desegregation, and other issues of social importance emerged, the Court increasingly fractured on the details.

Humphrey first nominated Arthur Goldberg to the Court in 1969. Goldberg was Warren's preferred successor and lacked the ethical concerns of the Court when Humphrey found it. Additionally, he was a proven consensus-builder like Warren and had anti-Communist bona fides due to his position in the UN. While he drew much criticism from Conservatives, he was a difficult person to deny. It also did not hurt that Nelson Rockefeller was aware of Goldberg's interest in running for Governor, and encouraged Republicans to get him on the Court to keep him away.

In 1969, Humphrey had a chance to placate moderates and Southerners as well with the resignation of Abe Fortas. Humphrey shocked many with the renomination of Homer Thornberry. Thornberry had initially been nominated to the Fortas seat when Johnson sought to elevate Fortas to the Supreme Court, but the failure of the Fortas nomination closed the door on Thornberry. Thornberry would prove to be a second Byron White - Moderate to Conservative on cultural and criminal issues, but liberal leaning on matters of race, economy, and class. Thornberry was from Texas - so almost a Southerner if not quite the Deep South - and Humphrey was worried about losing what support he'd previously had in the state. The Moderate Thornberry drew broad support, and helped sooth tensions between Humphrey and Johnson, who had been in the habit of publicly badmouthing Humphrey.

In 1970, William O Douglas announced his retirement. Conservatives squealed with glee as the Court's most ardent civil libertarian stepped away from the bench. Humphrey shocked the nation with the nomination of Judge Shirley Hufstedler. With the women's movement emergent, many Senators were afraid to vote down the first woman nominee. But many other Senators would make plainly crude and demeaning attacks upon Hufstedler. The desire to not be associated with the crudes produced a safe majority for Hufstedler, and many commentators joked that Dixiecrats seemed far more afraid of being accused of sexism than they were of accusations of racism.

The 1970 midterms saw the Democratic Party reduced to merely 50 seats in the Senate. The Republicans held 48, a Conservative held 1, and an Independent held another. This made Humphrey's life much more difficult.

With the dual retirements and deaths of Hugo Black and John Marshall Harlan II in 1971, Humphrey had something of a panic attack. Two members of the emergent right-bloc had died, presenting a possibility to shift the Court more solidly liberal. To make matters worse, Black was a Southerner and Harlan was the platonic ideal of a Moderate-to-Conservative Republican Judge - meaning the groups opposed to Humphrey were particularly incensed by their retirements.

Humphrey ended up doing something remarkably unexpected: He put up two Republicans.

Humphrey announced that he had accepted Black's request that Frank M Johnson be nominated as his replacement. Johnson was a very important Eisenhower Appointee for the Civil Rights movement, serving as District Court Judge in Alabama. This put some Southern Senators in a bind, though not all.

Humphrey next announced his intention to nominate William T Coleman to replace John Marshall Harlan II. Coleman had clerked for Justice Frankfurter - a mentor of Harlan's - and Herbert F Goodrich of the Third Circuit. He could be counted upon to vote in a somewhat liberal manner in First Amendment and Fourth Amendment cases and racial matters - an emergent issue for the Court - but would satisfy many otherwise business-minded Republicans. The appointment of a second African-American to the bench drew much hostility, but Coleman's confirmation being paired with the Deep Southern Johnson's, and having followed the appointment of Thornberry, smoothed the confirmation process.


As a diversity matter, Humphrey shook up the Court in a very particular way: Coleman's confirmation meant that this was the first time White Protestant Men did not comprise a majority of the United States Supreme Court.
 
David Souter was on Reagan's list to replace Powell, with one Linda Greenhouse Article from 1987 mentioning him. Kennedy had a somewhat open and diligent record on privacy interests - including viewing Griswold v. Connecticut as a legitimate case and openly defending it - which concerned many Conservatives in the Reagan Administration. Kennedy was also more activist in the most politically neutral sense of the word: he generally preferred ruling big when a narrower basis of decision was available, and he routinely sided with the judiciary when there was a possibility of interbranch conflict. Souter was perceived as more restrained and more respectful of the other branches. Ironically, Souter was more liberal than Kennedy - though given the changing definitions of what constitutes liberal or conservative, there are some areas (like Free Exercise) where Souter today would be considered more Conservative than Kennedy.

Souter would be unlikely to vote with the OTL majority in Employment Division v. Smith (1990) (which transformed the Exercise Clause from an individual religious right into a neutrality guarantee). He openly called for its overrule historically (as did O'Connor and Breyer), so it would be a question of who he sides with on the facts - O'Connor (upholding the denial of benefits but preserving the pre-Smith standard) or Blackmun-Brennan-Marshall (reversing the denial of benefits). My guess is O'Connor, because Souter thought precedent insisted on a more deferential view towards government when it came to provision of funds rather than restraint upon religious practice. The Religious Freedom Restoration Act and Religious Land Use and Institutionalized Persons Act might not occur without the OTL Smith opinion.

Souter would probably be a second vote for the O'Connor position in Webster v. Women's Reproductive Services (1989), which made the Undue Burden rule of Casey the operative rule. Rehnquist and White might be more cautious than OTL. The Court's center would be defined by O'Connor, Souter, and Stevens (who, people forget, did swing right in abortion cases on occasion depending upon the details).


With Souter not an option - who replaces Brennan? Anthony Kennedy might be one option - he'd only be 54 years old rather than 51 years old. The top two historically were Souter and Edith Jones, so it might go to Jones. But she seemed to rub the patrician HW the wrong way, and had a strong prospect of provoking a confirmation fight. Ken Starr would be another safe pick, as he was considered moderate. If Souter is the second choice in 1987 (instead of Doug Ginsburg) rather than the third (instead of Kennedy), the mild-mannered Doug Ginsburg might get the nod ... but his nomination might be withdrawn for the same reasons as historically. Ginsburg seems similarly conservative as Scalia or Rehnquist in principle, but seems to break libertarian on issues of civil liberty (he had clerked for Justice Marshall, and himself considered Marshall a kind of conservative) and has been more mindful of precedent. I imagine he'd take more seriously how much women and doctors had relied upon Roe than other Conservatives have, given that his wife was an abortion provider.

Other than Jones, none of the listed names would be a consistent right-wing vote. Kennedy we know from OTL. Starr seems like another O'Connor. Ginsburg is more respectful of precedent (including liberal precedent) and civil rights and liberties.

Below - the text of the 1987 article about Souter being considered before Ginsburg.

A potential nominee to the Supreme Court who has received virtually no public attention has apparently emerged as one of the leading contenders as President Reagan prepares to announce the Administration's selection Thursday.

A Senate source said tonight that Justice David Souter of the New Hampshire Supreme Court, whose name was on a list of 13 potential nominees that Howard H. Baker Jr., the White House chief of staff, presented to Senate leaders earlier in the week, was now near the top of the list along with three other candidates.

The three others, according to this account, are Federal appeals court judges: Anthony M. Kennedy of the Court of Appeals for the Ninth Circuit, in California; Douglas H. Ginsburg of the District of Columbia Circuit, and William W. Wilkins Jr. of the Fourth Circuit, in South Carolina.

Justice Souter is said to be something of a protege of Senator Warren B. Rudman, a Republican who is a former Attorney General of New Hampshire. Justice Souter, a 47-year-old Harvard Law School graduate and former Rhodes scholar, worked for Mr. Rudman and later became the state's Attorney General himself. He has been on the New Hampshire Supreme Court since September 1983, and Senator Rudman has told colleagues that the justice has ''the most brilliant legal mind'' he has ever encountered. Reputation as Conservative Justice Souter, a Republican, is said to have a reputation as a conservative judge who nonetheless is highly regarded by New Hampshire Democrats. On that basis, he would be an appealing choice for those in the White House eager to find a nominee who can be approved in the Senate without a bitter confirmation fight.

At the same time, conservative Republican senators would have difficulty opposing him, and in any case Senator Gordon J. Humphrey, a New Hampshire Republican who was a leader in the last-ditch battle to keep Judge Robert H. Bork's doomed nomination alive on the Senate floor, would have political trouble opposing a nominee from his own state.

One conservative Republican senator said today that conservatives were raising objections to Judge Kennedy, of the Ninth Circuit, who is seen by many as the leading contender. ''There's concern that Kennedy is not solid enough on issues that conservatives care about,'' this senator said. Democratic members of the Senate Judiciary Committee met for an informal caucus this afternoon to review the names that Mr. Baker presented to the Democratic leadership Tuesday. Among the contenders who drew substantial opposition was Judge Ginsburg. He held several jobs in the Reagan Administration before joining the Court of Appeals last year and was active in the Administration's deregulation efforts and in the narrowing of antitrust enforcement.

Senator Joseph R. Biden Jr., the chairman of the Judiciary Committee, telephoned Mr. Baker today to convey the Democrats' concern about Judge Ginsburg. He said that he did not want Mr. Baker to be misled by an account today in The Washington Post, which, quoting an Administration source, said Senator Biden and Senator Robert C. Byrd, the majority leader, had offered a ''generally positive reading'' on the judge.
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How do you think Justice John Marshall Harlan II would have voted in Roe v. Wade had he been healthier, stayed on the US Supreme Court and lived longer? US Solicitor General Charles Fried who clerked for John Marshall Harlan II said as shown at https://books.google.pt/books?id=DXZKAQAAQBAJ&pg=PT39&dq=Black+would+have+dissented+Roe&hl=pt-PT&sa=X&ved=2ahUKEwjS5-zF34v6AhWGuaQKHUtLDfYQ6AF6BAgDEAM#v=onepage&q=Black would have dissented Roe&f=false that it was likely, albeit not certain, that Harlan would have dissented in Roe v. Wade. Harlan had said in his dissent in Poe v. Ullman, the case before Griswold v. Connecticut, that he considered laws banning fornication, sodomy and adultery constitutional. On the other hand, Harlan could have changed his views over time.
 
Ricardolindo said:
How do you think Justice John Marshall Harlan II would have voted in Roe v. Wade had he been healthier, stayed on the US Supreme Court and lived longer? US Solicitor General Charles Fried who clerked for John Marshall Harlan II said as shown at https://books.google.pt/books?id=DXZKAQAAQBAJ&pg=PT39&dq=Black+would+have+dissented+Roe&hl=pt-PT&sa=X&ved=2ahUKEwjS5-zF34v6AhWGuaQKHUtLDfYQ6AF6BAgDEAM#v=onepage&q=Black would have dissented Roe&f=false that it was likely, albeit not certain, that Harlan would have dissented in Roe v. Wade. Harlan had said in his dissent in Poe v. Ullman, the case before Griswold v. Connecticut, that he considered laws banning fornication, sodomy and adultery constitutional. On the other hand, Harlan could have changed his views over time.
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If Harlan were on the bench in 1972/1973, he likely wouldn't vote for a constitutional right to abortion. His Poe v. Ullman opinion essentially involved going beyond constitutional text to the purposes behind the text. Because we protect homes under the Third and Fourth and Fifth Amendments, and we protect family rights under the First Amendment, it would be odd in Harlan's mind to allow for a law which could only be enforced by going after familial conduct that only takes place within the home (sexual and reproductive acts within the home) and he thought it improper that married couples would have to talk about their sex lives in open court. The concerns at stake in abortion aren't the same.


In the saga over Roe v. Wade, I'm generally intrigued by how US v. Vuitch is overlooked. There was an abortion case decided two years prior to Roe, the Roe v. Wade District Court case was mentioned in the dissent, several right to privacy abortion cases were addressed at oral argument, Roe was granted ceriorari upon the day after Vuitch was published, and this case hasn't been mentioned since 1983.

Vuitch had a three-Justice plurality (Black, Burger, White) which got five votes on the merits (troika plus Harlan and Blackmun) and on the jurisdiction issue (troika plus Douglas and Stewart). The merits five upheld the DC abortion law, but in doing so basically said it could only be tolerated if construed very broadly to give a lot of discretion to the doctor. At Roe's oral argument, the first question Burger asked was whether Vuitch had resolved most of the issues already(!!!). Under Vuitch, once a doctor proves they're licensed to practice it's (a) the government's burden to demonstrate that the woman's life or health weren't at risk, (b) the Federal court construed the DC statute's meaning of 'health' to include psychological and emotional health, and (c) courts/juries should used a 'reasonable doctor' standard from medical malpractice. The sense I get is the Court was trying to punt on a pretty big issue, since there were some real rule of law issues at stake (the statute effectively meant prosecutorial override of licensed medical decisionmaking) which would bother even an otherwise conservative mind on abortion. Astonishingly, Stewart (who dissented in Griswold) would have just totally immunized doctors from criminal liability. Douglas, meanwhile, would have just struck down the law as unconstitutionally vague (all it said was exceptions for life and health, but no further guidance on how certain a doctor had to be, etc.). According to the Brethren, Justice Stewart in the abortion cases was primarily interested in the wellbeing of doctors; and Douglas's Vuitch position was viewed by Stewart at least as being a doctor's rights matter. Concern for the well-being of doctors likely led to Stewart's flipping on the issue of Substantive Due Process between Griswold and Roe.

It's also worth taking into account that as early as 1972, the Court couldn't quite agree on what Griswold had actually said. In Eisenstadt, the plurality (Brennan, Douglas, Stewart, Marshall) was weird in saying "well if Griswold said there's a right to distribute contraceptives then this law here is unconstitutional, and if Griswold didn't say there's a right to distribute contraceptives then this law here is unconstitutional." Roe has been criticized as being ambivalent on where the right to abortion came from (Penumbras/Ninth Amendment or "Liberty" under the Fourteenth, Roe shrugged and said either works) but given that Eisenstadt was already sort of ambivalent and Roe/Doe had dueling concurrences (Douglas making the penumbra argument, Stewart arguing this was just Poe v Ullman's substantive due process), it seems to me that Eisenstadt and Roe/Doe were intentionally ambiguous so majorities could be constructed. Harlan, if he were on the bench in Eisenstadt, might just put his foot down there and insist on a narrow reading of Griswold. Maybe that would just mean Stewart joins the White-Blackmun concurrence in Eisenstadt (premised on the law banning single women from buying contraceptives being beyond stupid given that marital access was already a thing and people could buy condoms fairly easily)

Additionally, the Federal Courts case Younger v. Harris, which was about federal intervention in state prosecutions of people, was a necessary case to resolve before getting to Roe. Roe's oral argument OTL was delayed so Younger could be dealt with. I bring this up to reemphasize the practical legal issue the Supreme Court seemed to view Roe as being about: Prosecutors harassing doctors. Heck, the very first question Burger asked at oral argument in Roe v. Wade was whether Vuitch (a procedural due process/criminal procedure case, ultimately) had helped resolve some of the issues at play already.

But to reemphasize, there were problems with the abortion laws entirely separate from the issue of abortion itself. Moralizing prosecutors were going after doctors who were just trying to do their jobs, and medical standards are inherently vague. The Justices might just proceed to resolve Roe on the narrower grounds Blackmun initially sought to resolve the case upon - that if abortion laws contain exceptions for 'life' and not 'life and health' as construed by the Vuitch majority, the laws should be regarded as unconstitutionally vague.

There's also some other possible options at the Court's disposal. Chief Justice Burger in concurrence said that Texas's abortion law was routinely not enforced in contexts such as incest and rape (something Texas conceded at oral argument) and was noticeably miffed that a Doctor's ability to conduct themselves was being based not on preestablished law but the whims of prosecutors. A Connecticut Court around the same time struck down their law on the grounds that the law was so old, the state couldn't even remember why it was passed to begin with. All of these would have been narrower grounds to void questionable abortion laws that (I will reemphasize) were never fully enforced or complied with than the Court went with in Roe v. Wade. I'm going to guess that Harlan's professional sensibilities would have resulted in a case outcome that gives more weight to matters of criminal procedure than of social policy. Harlan OTL was more flexible in those areas (like the Fourth Amendment, or Bivens causes of action) than his successor Rehnquist was or his colleagues like Burger, Black, and Blackmun could be.

In a sense, Substantive Due Process was a useful conservative tool. You could go after criminal laws you didn't like without having to make any big doctrinal decisions about the rights of the people against the police.


EDIT: It is also worth taking into account that Harlan based his Poe/Griswold analysis in part on Connecticut's law being an outlier and one that wasn't actually enforced much. Texas's law would be categorically different. Maybe the Burger argument - that a professional shouldn't be harmed by a prosecutor suddenly changing their mind on longstanding policy - would have appeal for Harlan however.
 
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Neat detail found in Kirsten Downey’s bio of Frances Perkins: James M. Landis, SEC Chairman before William O. Douglas and later Dean of Harvard Law, was widely considered a likely Supreme Court pick before his decision in favor of Harry Bridges at his deportation hearings.
 
After thinking about this some more, my guess is Bork and Wallace are the most likely first choices to replace Powell if he retires in June 1982, as they were the top two preferred picks of the Meese faction in the Reagan DOJ before O'Connor won out. Arlin Adams is probably the third most likely. Ultimately, I will just treat all three as the same though of think about cases from a "what if a Right-winger replaced Powell" perspective.

There aren't a lot of cases I can think of between 1982 and 1987 that would come out differently.

Cleveland Board of Education v. Loudermill, 470 U.S. 532 (1985) might not overturn Arnett v. Kennedy, 416 U.S. 134 (1974). In Arnett the Plurality of the Court (three Justices) held that if the Government creates a property interest (like an employment contract or welfare benefits) the only Due Process rights you get when they take it away depend on the conditions the Government itself creates. In Loudermill, the Court adopted a three-part balancing test to determine minimal criteria for a fair procedure. There still would not be 5 votes for the very Conservative approach of the Arnett majority, but it would probably be something more Conservative than what the Court did historically. Fewer rights for welfare beneficiaries, pension holders, and public employees.

Ford v. Wainwright, 477 U.S. 399 (1986) sees O'Connor as the swing vote on competency evaluations before the insane are executed, rather than Powell. Execution of the insane would be constitutional in some circumstances, whereas OTL they held it was always unconstitutional.

Posadas de Puerto Rico Associates v. Tourism Co. of Puerto Rico, 478 U.S. 328 (1986). Commercial speech is probably more restricted. Powell was the fifth vote in a Conservative majority. The majority did a balancing test (which was something Powell usually preferred) and they probably are even more restrictive here.

Thornburgh v. American College of Obstetricians and Gynecologists, 476 U.S. 747 (1986). The case where the Pro-Roe majority shrank from 6-3 to 5-4, as Chief Justice Burger decided that the Roe cases had gone far beyond preventing imposing absolute prohibitions on a woman's right to choose. The "undue burden" framework of Casey might become the rule 6 years earlier. This probably means Akron v Akron (1983) is overturned.







Ricardolindo said:
Powell had considered retiring in 1982, after a decade on the Court, as he found O'Connor, who Reagan had nominated, a great Justice, but his family convinced him not to.
He also nearly died on the operating table during a surgery in 1985.
If he had either retired in 1982 or died in 1985, do you think Reagan would have nominated Bork to succeed him and he would have been confirmed?
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Jackson Lennock said:
Going back to an earlier post, if Powell had retired in 1982 out of satisfaction with the idea that his replacement would be an O'Connor-like Justice... (not that the Reagan Administration would have the same idea...)


Names to replace Powell, organized by age in June 1982 (some ages rounded up) (Legal experience prior to June 1982 listed)
William T Coleman Jr (62 Years Old) Supreme Court Clerk (Frankfurter), Appeals Court Clerk (Herbert F Goodrich), Supreme Court Litigator, Transportation Sec. 1975 to 1977
Arlin Adams (Conservative) (61 Years Old) Appellate Judge (Third Circuit) 1969 to 1982
Robert Bork (Conservative) (55 Years Old) Solicitor General 1973 to 1977, Acting Attorney General 10/1973 to 1/1974, Appellate Judge (DC Circuit) since February 1982
J Clifford Wallace (Conservative) (54 Years Old) Appellate Judge (Ninth Circuit) 1972 to 1982
Sylvia Bacon (Moderate Conservative) (51 Years Old) Various Justice Department Positions 1956 to 1970, Judge of the DC Superior Court 1971 to 1982
Orrin Hatch (Conservative) (48 Years Old) Senator 1977 to 1982
Laurence J Silberman (Conservative) (47 Years Old) Solicitor of Labor 1969 to 1970; Under Secretary of Labor 1970 to 1973, Deputy Attorney General 1974 to 1975; Ambassador to Yugoslavia 1975 to 1977. Senate confirmed to all four posts unanimously.
Rex Lee (Conservative) (47 years Old) Dean of Reuben J Clark Law School at Brigham Young University (1971 to 1981); Assistant Attorney General of the Civil Division (1975 to 1977); United States Solicitor General (1981 to 1982)
Carla Anderson Hills (Moderate Conservative)(46 Years Old) Assistant AG for the Civil Division 1973 to 1975; Housing & Urban Development Secretary 1975 to 1977
Anthony Kennedy (Moderate Conservative)(46 Years Old) Appellate Judge (Ninth Circuit) 1975 to 1982
Antonin Scalia (Conservative)(46 Years Old) Assistant Attorney General for the Office of Legal Counsel 1974 to 1977
Richard J Posner (Moderate Conservative)(43 Years Old) Supreme Court Clerk (William J Brennan), Attorney Advisor to FTC Commissioner, Attorney in the Solicitor General's Office under Thurgood Marshall, Appellate Judge (Seventh Circuit) since August 1981

The Court following an early Powell Retirement
Chief Justice Warren Burger (Conservative)
William J Brennan (Liberal)
Byron White (Center)
Thurgood Marshall (Liberal)
Harry Blackmun (Liberal)
William H Rehnquist (Conservative)
John Paul Stevens (Liberal)
Sandra Day O'Connor (Moderate Conservative) In 1982 O'Connor was more conservative than she was later on...


Just about any of the listed appointees, with the exception of Coleman, would be more Conservative than Powell was. Coleman would be equally Conservative, I would think. Posner, Coleman, and perhaps Kennedy would disappoint Social Conservatives.

A Bork or Wallace nomination would prompt a major fight and may or may not fail. The GOP has a 54-46 majority in 1982. For comparison...
  • Rehnquist was confirmed for the position of Chief Justice in a 65–33 vote in 1986 (49 Republicans and 16 Democrats voted in favor; 31 Democrats and two Republicans voted against). Republicans had a 53 to 47 Majority in 1986.
  • Bork failed 58-42 in 1987 (40 Republicans and 2 Democrats voted in favor; 52 Democrats and 6 Republicans voted against). Democrats had a 54-46 majority in 1987.
Click to expand...
 
Supreme Court As Of January 20, 2025:
CJ: John G. Roberts (2005, Bush II)
AJ: Clarence Thomas (1991, Bush I)
AJ: Samuel Alito (2006, Bush II)
AJ: Sonia Sotomayor (2009, Obama)
AJ: Elena Kagan (2010, Obama)
AJ: Merrick Garland (2016, Obama)
AJ: Lucy Koh (2017, Biden)
AJ: Ketanji Brown-Jackson (2018, Biden)
AJ: Rachel Bloomekatz (2023, Biden)
 
So apparently part of the Progressive Era Wishlist was to have an elected Supreme Court (as frequently exists at the state level). Has anyone ever done a serious POD where the Bob LaFollettes get their way? (Perhaps in the wake of an even more aggressive Lochner Court?)

I'd assume that the SCOTUS is more deferential to the elected branch ITTL (less overturning of the New Deal, and probably nothing as sweeping as Brown or Roe) but still important enough for "non-partisan" elections to be thoroughly contested.
 
OTL, there's been a running theme of Republican judges drifting left over time or disappointing conservative republicans. Of the 12 Republicans appointed from 1960 to 2016, only four didn't drift left over time or vote left/moderate in controversial cases (Rehnquist, Scalia, Thomas, and Alito). That's an ideological success rate of 33%. Of the 8 successful democratic appointments, only Justice White drifted right. Maybe Breyer in some cases like Religion or Crime. Democratic appointments have a success rate of 66% to 87.5%.

Who plausibly could have been Democratic equivalents of a Blackmun, Souter, or Stevens? Somebody who largely disappoints the political side of the President who appointed them.


I've seen Jose Cabranes mentioned, but I am not sure if he's Conservative or just Conservative for a Democrat.
Garland would have been a Kagan-style moderate liberal. Annoying to the left, but broadly satisfying to liberals.
 
SCOTUS: BASED EDITION:

Supreme Court (January 20, 1973):
CJ: Arthur Goldberg (1969, Humphrey)
AJ: William Douglas (1939, Roosevelt)
AJ: William Brennan (1956, Eisenhower)
AJ: Potter Stewart (1958, Eisenhower)
AJ: Byron White (1962, Kennedy)
AJ: Thurgood Marshall (1967, Johnson)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Harry Blackmun (1972, Humphrey)
AJ: Frank Johnson (1972, Humphrey)

6 LIBERALS
3 MODERATES

Supreme Court (January 20, 1977):
CJ: Arthur Goldberg (1969, Humphrey)
AJ: William Brennan (1956, Eisenhower)
AJ: Potter Stewart (1958, Eisenhower)
AJ: Byron White (1962, Kennedy)
AJ: Thurgood Marshall (1967, Johnson)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Harry Blackmun (1972, Humphrey)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)

5 LIBERALS
4 MODERATES

Supreme Court (January 20, 1981):
CJ: Arthur Goldberg (1969, Humphrey)
AJ: William Brennan (1956, Eisenhower)
AJ: Potter Stewart (1958, Eisenhower)
AJ: Byron White (1962, Kennedy)
AJ: Thurgood Marshall (1967, Johnson)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Harry Blackmun (1972, Humphrey)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)

5 LIBERALS
4 MODERATES

Supreme Court (January 20, 1985):
CJ: Arthur Goldberg (1969, Humphrey)
AJ: William Brennan (1956, Eisenhower)
AJ: Byron White (1962, Kennedy)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Harry Blackmun (1972, Humphrey)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: Edward Levi (1981, Holtzman)
AJ: A. Leon Higgenbotham (1983, Holtzman)

6 LIBERALS
3 MODERATES

Supreme Court (January 20, 1989):
CJ: Arthur Goldberg (1969, Humphrey)
AJ: Byron White (1962, Kennedy)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Harry Blackmun (1972, Humphrey)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: Edward Levi (1981, Holtzman)
AJ: A. Leon Higgenbotham (1983, Holtzman)
AJ: Stephen Breyer (1988, Holtzman)

6 LIBERALS
3 MODERATES

Supreme Court (January 20, 1993):
CJ: Edward Levi (1990, Carter)
AJ: Byron White (1962, Kennedy)
AJ: Shirley Hufstedler (1970, Humphrey)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: A. Leon Higgenbotham (1983, Holtzman)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Richard Riley (1991, Carter)

7 LIBERALS
2 MODERATES

Supreme Court (January 20, 1997):
CJ: Edward Levi (1990, Carter)
AJ: Frank Johnson (1972, Humphrey)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: A. Leon Higgenbotham (1983, Holtzman)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Richard Riley (1991, Carter)
AJ: Jose Cabranes (1993, Cohen)
AJ: Sandra Day O'Connor (1996, Cohen)

6 LIBERALS
2 MODERATES
1 CONSERVATIVE

Supreme Court (January 20, 2001):
CJ: Edward Levi (1990, Carter)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: A. Leon Higgenbotham (1983, Holtzman)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Richard Riley (1991, Carter)
AJ: Jose Cabranes (1993, Cohen)
AJ: Sandra Day O'Connor (1996, Cohen)
AJ: Merrick Garland (1999, Cohen)

6 LIBERALS
2 MODERATES
1 CONSERVATIVE

Supreme Court (January 20, 2005):
CJ: Richard Riley (2004, Powell)
AJ: John Paul Stevens (1975, Rockefeller)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Jose Cabranes (1993, Cohen)
AJ: Sandra Day O'Connor (1996, Cohen)
AJ: Merrick Garland (1999, Cohen)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)

4 LIBERALS
3 CONSERVATIVES
2 MODERATES

Supreme Court (January 20, 2009):
CJ: Richard Riley (2004, Powell)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Jose Cabranes (1993, Cohen)
AJ: Sandra Day O'Connor (1996, Cohen)
AJ: Merrick Garland (1999, Cohen)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)
AJ: Sonia Sotomayor (2007, Gore)

5 LIBERALS
3 CONSERVATIVES
1 MODERATE

Supreme Court (January 20, 2013):
CJ: Merrick Garland (2011, Gore)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: Jose Cabranes (1993, Cohen)
AJ: Sandra Day O'Connor (1996, Cohen)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)
AJ: Sonia Sotomayor (2007, Gore)
AJ: Elena Kagan (2012, Gore)

5 LIBERALS
3 CONSERVATIVES
1 MODERATE

Supreme Court (January 20, 2017):
CJ: Merrick Garland (2011, Gore)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)
AJ: Sonia Sotomayor (2007, Gore)
AJ: Elena Kagan (2012, Gore)
AJ: Lucy Koh (2014, Obama)

6 LIBERALS
2 CONSERVATIVES

Supreme Court (January 20, 2021):
CJ: Merrick Garland (2011, Gore)
AJ: Stephen Breyer (1988, Holtzman)
AJ: Ruth Bader Ginsburg (1989, Carter)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)
AJ: Sonia Sotomayor (2007, Gore)
AJ: Elena Kagan (2012, Gore)
AJ: Lucy Koh (2014, Obama)
AJ: John Roberts (2017, Kim)

6 LIBERALS
3 CONSERVATIVES

Supreme Court (Present):
CJ: Merrick Garland (2011, Gore)
AJ: Stephen Breyer (1988, Holtzman)
AJ: John Yoo (2002, Powell)
AJ: Clarence Thomas (2004, Powell)
AJ: Sonia Sotomayor (2007, Gore)
AJ: Elena Kagan (2012, Gore)
AJ: Lucy Koh (2014, Obama)
AJ: John Roberts (2017, Kim)
AJ: Ketanji Brown-Jackson (2022, Biden)

6 LIBERALS
3 CONSERVATIVES

CHIEF JUSTICES OF THE SUPREME COURT:
Earl Warren: October 5, 1953-June 23, 1969
Arthur Goldberg: June 23, 1969-December 1, 1990
Edward Levi: December 1, 1990-March 15, 2004
VACANT: March 15, 2004-May 20, 2004
Barbara Jordan: May 20, 2004-August 2, 2004 (Recess Appointment)
Richard Riley: August 2, 2004-June 2, 2011
Merrick Garland: June 2, 2011-Present

KEY DECISIONS:
Furman v. Georgia (1972), Ruled 5-4 that capital punishment is always unconstitutional, except for war crimes or other unique circumstances
Roe v. Wade (1973), Ruled 7-2 that no restrictions on abortion can occur before 20 weeks, and thereafter abortions in cases of rape/incest and danger to the mother are protected
Friends of Stonewall v. Connally (1974), Ruled 8-1 that 'anti-sodomy' laws are fundamentally unconstitutional
Kerry v. Kissinger (1976), Ruled 6-3 that the President must obtain congressional approval for any offensive military action
Black v. ATF (1978), Ruled 7-2 that sentencing disparities between crack and powder cocaine are unconstitutional, furthermore mandatory minimum sentencing is unconstitutional
Sanchez v. ATF (1979), Ruled 9-0 that police forces can't raid houses without a warrant, furthermore all evidence obtained is not permissible in a court of law.
ACLU v. DOJ (1981), Ruled 5-4 that sentences of life without parole are unconstitutional, furthermore solitary confinement is a human rights abuse and not constitutional
Daniels v. Gray (1985), Ruled 6-3 that civilian government employees can't be fired for being gay
ACLU v. Martin (1986), Ruled 5-4 that states must recognize civil unions between same-sex couples
Standard Oil v. IWW (1990), Ruled 5-3 that the remaining provisions of the Taft-Hartley Act are unconstitutional
Smith v. LAPD (1992) Ruled 7-2 to prohibit holding someone for more than 12 hours without charges
ACLU v. Balthazer (1994) Ruled 5-4 that corporations aren't people and don't have constitutional rights
Heritage Foundation v. New York (1995) Ruled 4-4 that public displays of religion in schools by teachers are prohibited unless used for a lesson, furthermore students who push other students to partake in religious activities against their will are prohibited from attending public schools
Heritage Foundation v. New York (1996) Ruled 5-4 that the decision in Heritage Foundation v. New York is constitutional. Furthermore, religious schools that don't follow approved curriculum can't receive public funding. Furthermore, religious colleges closed to any demographic of people can't receive funding from any government on any level
Muhammed v. Tennessee Adoption Agency (1998) Ruled 6-3 that states may not discriminate against couples looking to adopt due to religious beliefs
Open Society Foundation v. DOD (2000) Ruled 7-2 to reduce the circumstances where government documents can be indefinitely classified.
Defense of Marriage Foundation v. ACLU (2003) Ruled 5-3 to legalize gay marriage at the federal level
Focus On The Family v. California (2005) Ruled 6-3 that the right to knowledge for students overrules parental rights
Robert Kennedy v. DH&HS (2006) Ruled 6-3 that 'religious exemptions' are not an excuse for not taking a vaccine critical to public health efforts
Pence v. Texas (2010) Ruled 5-3 that 'don't say gay' laws are always unconstitutional
 
Jackson Lennock said:
OTL, there's been a running theme of Republican judges drifting left over time or disappointing conservative republicans. Of the 12 Republicans appointed from 1960 to 2016, only four didn't drift left over time or vote left/moderate in controversial cases (Rehnquist, Scalia, Thomas, and Alito). That's an ideological success rate of 33%. Of the 8 successful democratic appointments, only Justice White drifted right. Maybe Breyer in some cases like Religion or Crime. Democratic appointments have a success rate of 66% to 87.5%.

Who plausibly could have been Democratic equivalents of a Blackmun, Souter, or Stevens? Somebody who largely disappoints the political side of the President who appointed them.


I've seen Jose Cabranes mentioned, but I am not sure if he's Conservative or just Conservative for a Democrat.
Garland would have been a Kagan-style moderate liberal. Annoying to the left, but broadly satisfying to liberals.
Click to expand...

I think that's a simplification and ignores the context of some appointments. Kennedy, for example - nobody was under any illusions at the time about where he was in terms of philosophy. Everyone knew, including the administration, that he wasn't a Ronald Reagan-type justice like Bork. He was appointed because appointing someone who could get past the Senate before election year was seen as preferable to dragging the nomination out and potentially losing the nomination entirely. Kennedy receieved a lot of criticism from the right over the years, but in terms of expectations at appointment I think his court career was pretty much exactly where everyone would have expected it to be - maybe even more to the right than some Democrats might have hoped.

I think Burger's navigation of the politics of the court of his day may not have produced the kind of flaming dissents that some on the right would have liked, but I don't think anybody is in any doubt that he was in a consistent battle for his entire time on the court to overall bring it to the right.

There were twenty-six years between Marshall being appointed and the next appointment by a Democratic president. That's a long stretch of time where the backgrounds and philosophies of nominees were not as tightly-vetted as today. We could have got a lot more White-style nominations in that time had the Democrats fared better politically in the post-war period; certainly well into that period the primary qualifications of a nominee were that they should be seen as qualified and without scandal, and their political reliability took a back seat.

Cabranes would have likely been a very moderate justice, which is why he didn't come particularly close to serious consideration from either side of the aisle in OTL. It's possible he could have moved more to the right in time on the court, but would he have entered it as a preferred option of the right, no, absolutely not.

And I suspect there's probably a lot of potential ATL minority justices who had their formative years pre-civil rights who would have been in that vein. @Callan previously wrote an overview of Barbara Jordan which is pertinent in spite of Jordan's non-viability as a justice, but I don't think her politics were a total and complete outlier for people of her generation who could have been potential judges.
 
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