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Alternate Supreme Courts Thread

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.

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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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Frank Johnson would have voted with the liberals in Bowers v. Hardwick.
He wrote the Eleventh Circuit opinion striking down the Georgia sodomy law.
 
Bill Clinton strongly considered nominating Bruce Babbitt to succeed Byron White in 1993 but decided not to because of objections by Orrin Hatch and other Western Republicans. Let's say they don't object. How different would Babbitt be from Ginsburg? Would he have retired under Obama or in Biden's first year?
 
Ricardolindo said:
Bill Clinton strongly considered nominating Bruce Babbitt to succeed Byron White in 1993 but decided not to because of objections by Orrin Hatch and other Western Republicans. Let's say they don't object. How different would Babbitt be from Ginsburg? Would he have retired under Obama or in Biden's first year?
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Probably Obama but it's also possible he pulls a Breyer
 
I thought about what the most liberal and conservative courts by the end of the Bush years with the only differences being who is picked for the Court (same Senate, same Presidents), starting with the Bork confirmation. I'm only going off of names that were considered OTL and high on the list. Retirements are timed the same, unless somebody dies.

CONSERVATIVE​
Chief Justice Antonin Scalia [Conservative] [Replacing Rehnquist]
John Paul Stevens [Liberal]
Edith Jones [Conservative] [Instead of Souter]
Clarence Thomas [Conservative]
Jose Cabranes [Centrist] [Instead of Ginsburg]
Edith Brown Clement [Moderate Conservative] [Replacing Richard S Arnold, picked over Breyer and who retires in 2001 because of Cancer]
Samuel Alito [Conservative]
Frank Easterbrook [Conservative] [Replacing Scalia when Scalia is promoted]
Lawrence Silberman [Conservative] [Replacing Robert Bork, who is confirmed instead of Kennedy]

Conservatives (6) Moderate Conservatives (1) Centrists (1) Liberals (1)

LIBERAL​

Chief Justice John Roberts [Conservative]
John Paul Stevens [Liberal]
Antonin Scalia [Conservative]
David Souter [Moderate Liberal] [Instead of Kennedy]
Ken Starr [Centrist] [Instead of Souter]
Jose Cabranes [Centrist] [Instead of Thomas]
Mario Cuomo [Liberal] [Instead of Ginsburg]
Ruth Bader Ginsburg [Liberal] [Instead of Breyer]
Edith Brown Clement [Moderate Conservative] [Instead of Alito]

Conservatives (2) Moderate Conservatives (1) Centrists (2) Moderate Liberals (1) Liberals (3)

If John Kerry won in 2004 but the Senate is the same​

Chief Justice Merrick Garland [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Stephen Breyer [Liberal]
Jose Cabranes [Centrist][Replacing Souter]
Diane Wood [Liberal][Replacing O'Connor]
Sonia Sotomayor [Liberal] [Replacing Stevens]

There are enough Moderate to Liberal Republicans even in a 55-45 Senate than Kerry could get liberal picks through.
Garland was respected generally and could be allowed to move the court left there.

Putting the liberal Wood and Sotomayor on along with the Centrist Cabranes doesn't change too much. O'Connor was Centrist and Souter/Stevens Liberal - so you have two liberals and a centrist.

Liberals (4) Moderate Liberals (1) Centrists (1) Moderate Conservatives (1) Conservatives (2)
 
Jackson Lennock said:
I thought about what the most liberal and conservative courts by the end of the Bush years with the only differences being who is picked for the Court (same Senate, same Presidents), starting with the Bork confirmation. I'm only going off of names that were considered OTL and high on the list. Retirements are timed the same, unless somebody dies.

CONSERVATIVE​
Chief Justice Antonin Scalia [Conservative] [Replacing Rehnquist]
John Paul Stevens [Liberal]
Edith Jones [Conservative] [Instead of Souter]
Clarence Thomas [Conservative]
Jose Cabranes [Centrist] [Instead of Ginsburg]
Edith Brown Clement [Moderate Conservative] [Replacing Richard S Arnold, picked over Breyer and who retires in 2001 because of Cancer]
Samuel Alito [Conservative]
Frank Easterbrook [Conservative] [Replacing Scalia when Scalia is promoted]
Lawrence Silberman [Conservative] [Replacing Robert Bork, who is confirmed instead of Kennedy]

Conservatives (6) Moderate Conservatives (1) Centrists (1) Liberals (1)

LIBERAL​

Chief Justice John Roberts [Conservative]
John Paul Stevens [Liberal]
Antonin Scalia [Conservative]
David Souter [Moderate Liberal] [Instead of Kennedy]
Ken Starr [Centrist] [Instead of Souter]
Jose Cabranes [Centrist] [Instead of Thomas]
Mario Cuomo [Liberal] [Instead of Ginsburg]
Ruth Bader Ginsburg [Liberal] [Instead of Breyer]
Edith Brown Clement [Moderate Conservative] [Instead of Alito]

Conservatives (2) Moderate Conservatives (1) Centrists (2) Moderate Liberals (1) Liberals (3)

If John Kerry won in 2004 but the Senate is the same​

Chief Justice Merrick Garland [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Stephen Breyer [Liberal]
Jose Cabranes [Centrist][Replacing Souter]
Diane Wood [Liberal][Replacing O'Connor]
Sonia Sotomayor [Liberal] [Replacing Stevens]

There are enough Moderate to Liberal Republicans even in a 55-45 Senate than Kerry could get liberal picks through.
Garland was respected generally and could be allowed to move the court left there.

Putting the liberal Wood and Sotomayor on along with the Centrist Cabranes doesn't change too much. O'Connor was Centrist and Souter/Stevens Liberal - so you have two liberals and a centrist.

Liberals (4) Moderate Liberals (1) Centrists (1) Moderate Conservatives (1) Conservatives (2)
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I don't see why Bush would elevate Scalia to Chief Justice. He didn't in our timeline probably because he was too old and controversial.
 
Jackson Lennock said:
I thought about what the most liberal and conservative courts by the end of the Bush years with the only differences being who is picked for the Court (same Senate, same Presidents), starting with the Bork confirmation. I'm only going off of names that were considered OTL and high on the list. Retirements are timed the same, unless somebody dies.

CONSERVATIVE​
Chief Justice Antonin Scalia [Conservative] [Replacing Rehnquist]
John Paul Stevens [Liberal]
Edith Jones [Conservative] [Instead of Souter]
Clarence Thomas [Conservative]
Jose Cabranes [Centrist] [Instead of Ginsburg]
Edith Brown Clement [Moderate Conservative] [Replacing Richard S Arnold, picked over Breyer and who retires in 2001 because of Cancer]
Samuel Alito [Conservative]
Frank Easterbrook [Conservative] [Replacing Scalia when Scalia is promoted]
Lawrence Silberman [Conservative] [Replacing Robert Bork, who is confirmed instead of Kennedy]

Conservatives (6) Moderate Conservatives (1) Centrists (1) Liberals (1)

LIBERAL​

Chief Justice John Roberts [Conservative]
John Paul Stevens [Liberal]
Antonin Scalia [Conservative]
David Souter [Moderate Liberal] [Instead of Kennedy]
Ken Starr [Centrist] [Instead of Souter]
Jose Cabranes [Centrist] [Instead of Thomas]
Mario Cuomo [Liberal] [Instead of Ginsburg]
Ruth Bader Ginsburg [Liberal] [Instead of Breyer]
Edith Brown Clement [Moderate Conservative] [Instead of Alito]

Conservatives (2) Moderate Conservatives (1) Centrists (2) Moderate Liberals (1) Liberals (3)

If John Kerry won in 2004 but the Senate is the same​

Chief Justice Merrick Garland [Moderate Liberal] [Replace Rehnquist]
Anthony Kennedy [Moderate Conservative]
Antonin Scalia [Conservative]
Clarence Thomas [Conservative]
Ruth Bader Ginsburg [Liberal]
Stephen Breyer [Liberal]
Jose Cabranes [Centrist][Replacing Souter]
Diane Wood [Liberal][Replacing O'Connor]
Sonia Sotomayor [Liberal] [Replacing Stevens]

There are enough Moderate to Liberal Republicans even in a 55-45 Senate than Kerry could get liberal picks through.
Garland was respected generally and could be allowed to move the court left there.

Putting the liberal Wood and Sotomayor on along with the Centrist Cabranes doesn't change too much. O'Connor was Centrist and Souter/Stevens Liberal - so you have two liberals and a centrist.

Liberals (4) Moderate Liberals (1) Centrists (1) Moderate Conservatives (1) Conservatives (2)
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I would classify Sandra Day O'Connor as a moderate conservative rather than as a centrist. She was slightly to the left of Anthony Kennedy on most matters but I don't think she can be considered a centrist.
 
Ricardolindo said:
I would classify Sandra Day O'Connor as a moderate conservative rather than as a centrist. She was slightly to the left of Anthony Kennedy on most matters but I don't think she can be considered a centrist.
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It depends on the year. By the end I think she got more centrist because she cared more about not shaking up precedent and Scalia rubbed her the wrong way. She had a good little bloc going with Souter, Kennedy, and Breyer too. There were as many 6-3 cases where it'd be the liberals plus her and kennedy as there were 7-2 cases with Souter and Breyer joining the right flank.
 
Jackson Lennock said:
It depends on the year. By the end I think she got more centrist because she cared more about not shaking up precedent and Scalia rubbed her the wrong way. She had a good little bloc going with Souter, Kennedy, and Breyer too. There were as many 6-3 cases where it'd be the liberals plus her and kennedy as there were 7-2 cases with Souter and Breyer joining the right flank.
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It's been argued that Clarence Thomas pushed O'Connor to the left because of his extreme views.
 
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Herbert Hoover's first nominee to succeed Edward Sanford,
John J. Parker was defeated by a 41-39 vote. Had a single Senator changed his vote, Vice President Charles Curtis would have casted the tie breaking vote to confirm him.
What if he had been confirmed? Despite his conservative reputation, it's been argued that he was actually more liberal than Owen Roberts, who Hoover nominated after his defeat and was confirmed.
 
A quirky idea - a more moderate Supreme Court before 1968 leads to a more liberal one after.

The gist is this - Johnson nominates William T Coleman (the OTL backup to Marshall, somewhat more moderate, a Frankfurter clerk) instead of Thurgood Marshall. He proceeds to be somewhat similar to Potter Stewart or John Marshall Harlan II. From 1967 to 1968 there's a moderate to conservative bloc of Stewart, Harlan, White, and Coleman with Black now the swing vote in areas where his sense originalism/textualism breaks conservative rather than liberal (also in 4th Amendment cases, where he was often very deferential to police).

Humphrey wins and gets to replace Warren, Black, Harlan, and Douglass (who retires sooner, since he stayed on OTL to annoy Nixon). Warren in 1969, Douglas in 1970, and Black and Harlan in 1971.

Without Nixon having the FBI look into him, I don't think Fortas is forced off the bench in 1969. Arthur Goldberg is probably made Chief Justice - he'd already been on the Supreme Court, there were no scandals surrounding him, Goldberg later said he was Warren's preferred choice as replacement, and Johnson OTL considered appointing Goldberg to the post as Chief as a recess appointment.

Douglass probably retires in 1969 or 1970. He'd gotten bored on the Court by then and probably stuck it out until 1975 because he didn't like Richard Nixon. Albert E Jenner, who was sort of the preferred choice over Johnson's OTL choice of Thornberry to replace Fortas as Associate Justice by a bunch of folks in the Johnson Administration and viewed as an easier sell to Senate Republicans than Thornberry. Jenner was a prominent attorney and was on too many prestigious and important legal commissions and boards to list. I think Jenner makes more sense here - he'd probably be a liberal on civil rights, civil liberties, and labor issues and doesn't have any baggage Thornberry would have

Black wanted Frank M Johnson to replace him historically. It might be a good olive branch to give to Republicans and Southerners while also having a very pro-civil rights choice.

Humphrey would probably want to get the first Woman Justice on the Court. Shirley Hufstedler seems like a natural choice whose name was mentioned a lot.


Chief Justice: Arthur Goldberg (Liberal) (1969) (Previously 1962 to 1965)
William J Brennan (Liberal) (1956)
Potter Stewart (Moderate) (1958)
Byron White (Moderate) (1962)
Abe Fortas (Liberal) (1965) (not replaced by Blackmun)
William T Coleman (Moderate) (1967) (Instead of Marshall)
Albert E Jenner (Liberal) (1970) (Replacing Douglass)
Frank M Johnson (Moderate) (1971) (Replacing Black)
Shirley Hufstedler (Liberal) (1971) (Replacing John Marshall Harlan II)

I'm not sure of how many big cases there'd be which would go differently. If Republicans win in 1972, they might still investigate Fortas force him off the bench through resignation or impeachment. That'd tilt the court to a moderate-to-conservative majority, but one which still would be very likely to rule liberal (any case would start with 4 liberal votes and only need to secure one moderate).

Furman v Georgia (1972) might go differently. OTL 5 Justices voted to put a halt on all death sentences - Brennan and Marshall said it was always unconstitutional and Stewart, White, and Douglas said the death penalty as currently applied was unconstitutional because of arbitrariness and racial discrimination in its application. The Four dissenters were the Four Nixon appointees. I think there'd be 5 votes to say the Death Penalty is always unconstitutional under the Felony Murder Rule (in which proving you had intent to commit some other dangerous crime is considered sufficient to prove you had intent to kill somebody - it's a controversial legal rule to say the least, especially when combined with accomplice liability in conspiracy cases).

San Antonio Independent School District (1973) could have declared unconstitutional the funding education through local property taxes (there were 4 votes for this) and possibly gone further to declare a fundamental right to education (there were three votes for this). This was Stewart plus the Nixon appointees in the majority. Here there'd perhaps be Six Votes against the local funding model (White plus the liberals) if Fortas isn't forced out and Five votes if Fortas is forced out. Maybe more (I'm not sure how Johnson or Coleman would rule). If White's approach (joined by Douglas and Brennan) becomes the rule, then you haven't declared a right to education; instead you've announced the Supreme Court is going to beef up the concept of 'rational basis review' (the lowest standard of review, where the burden is on the challenger to a government policy and there's neither a specially protected right involved nor proof of discrimination against a protected group) and have courts scrutinize lots of government policies. Compare this to New York State Transit Authority v. Beazer (1979) where in a 5-4 decision 4 Justices found a NY State policy banning methadone users (methadone is a drug used to treat heroine addiction) from employment to be unconstitutional, with White's dissent saying it failed rational basis to ban all methadone users as a class from employment (instead of something narrower, like requiring somebody to be clean for a year). If White has his way, it would be revolutionary (the Court would be interfering in a great many more areas) but also would mostly be dealing with cases on the margins (ergo, being clean for a year being allowed and banning people using drugs to keep clean from employment not being allowed).

If this approach to rational basis review becomes the norm, I see no reason why it wouldn't inevitably seep back into judicial scrutiny of economic regulations.

Milliken v Bradley (1974) would have 5 votes whether or not Fortas is forced off the bench, since White, Goldberg, Brennan, Jenner, and Hufstedler make for a majority already (and Johnson and Coleman may or may not be part of the majority). This would mean integration of schools through bussing where there's been a history of indirect segregation through things like redlining. This would have big political consequences and could lead to jurisdiction stripping or court packing.
 
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Nixon considered offering the Blackmun seat to Lewis Powell in 1969 - both before the Haynsworth defeat and after the Carswell defeat, but Powell wrote to the President and said no and Nixon eventually settled on Blackmun. Powell could have been put on the bench two years sooner if Nixon had just pressed him personally a bit more (which is what finally got Powell to acquiesce in 1971).

There was apparently a long list of cases marked as 'hold for Haynsworth' - and later 'hold for Judge X' after the Haynsworth defeat. If Powell was the first nominee for the Fortas/Blackmun seat, a few cases might be heard sooner. Powell in his early years wasn't very familiar with Constitutional issues and ultimately relied on recent precedents, the views of his former law firm colleagues who helped to prep him, and his clerks; but he also aspired to be a moderately conservative Justice in the mold of John Marshall Harlan II. Powell would be a swingy-liberal vote like John Marshall Harlan II and part of the Burger-Stewart-White moderate-to-conservative camp.

Looking at the other names for the 1971 seat who weren't nominated OTL - Fifth Circuit judge Paul Roney, Fifth Circuit judge Charles Clark, and District of Columbia judge Sylvia Bacon, and Congressman Richard Poff. Nixon wanted to put a southerner on to replace Black, but with Powell already there he could decide that doesn't matter. Getting the first woman on the Court - Sylvia Bacon, who was a fairly conservative person on criminal procedure issues - might get priority. Otherwise, the intended backup for Rehnquist - Senator Howard Baker - could be the replacement for Black, with Nixon aiming to take advantage of Senatorial courtesy for a colleague.
Harry D. Goldman (1903-1995) – New York appellate judge - was also considered. Maybe Henry Friendly would get consideration again too, but by 1971 he was 68 years old.

A knock-on is that without Blackmun, Brennan might be dismayed to the point of retirement. He was very depressed at the beginning of the Burger Court since he saw a very unpleasant right-turn, but it was Blackmun starting to break left and his realizing that Powell was more swingy than expected which gave him hope to plow ahead.
 
Clement Haynsworth was later described as a moderate in the mold of John Paul Stevens. Had he been confirmed and Blackmun been nominated for John Marshall II's seat instead of William Rehnquist, we may have seen a more liberal Supreme Court.
 
Jackson Lennock said:
Nixon considered offering the Blackmun seat to Lewis Powell in 1969 - both before the Haynsworth defeat and after the Carswell defeat, but Powell wrote to the President and said no and Nixon eventually settled on Blackmun. Powell could have been put on the bench two years sooner if Nixon had just pressed him personally a bit more (which is what finally got Powell to acquiesce in 1971).

There was apparently a long list of cases marked as 'hold for Haynsworth' - and later 'hold for Judge X' after the Haynsworth defeat. If Powell was the first nominee for the Fortas/Blackmun seat, a few cases might be heard sooner. Powell in his early years wasn't very familiar with Constitutional issues and ultimately relied on recent precedents, the views of his former law firm colleagues who helped to prep him, and his clerks; but he also aspired to be a moderately conservative Justice in the mold of John Marshall Harlan II. Powell would be a swingy-liberal vote like John Marshall Harlan II and part of the Burger-Stewart-White moderate-to-conservative camp.

Looking at the other names for the 1971 seat who weren't nominated OTL - Fifth Circuit judge Paul Roney, Fifth Circuit judge Charles Clark, and District of Columbia judge Sylvia Bacon, and Congressman Richard Poff. Nixon wanted to put a southerner on to replace Black, but with Powell already there he could decide that doesn't matter. Getting the first woman on the Court - Sylvia Bacon, who was a fairly conservative person on criminal procedure issues - might get priority. Otherwise, the intended backup for Rehnquist - Senator Howard Baker - could be the replacement for Black, with Nixon aiming to take advantage of Senatorial courtesy for a colleague.
Harry D. Goldman (1903-1995) – New York appellate judge - was also considered. Maybe Henry Friendly would get consideration again too, but by 1971 he was 68 years old.

A knock-on is that without Blackmun, Brennan might be dismayed to the point of retirement. He was very depressed at the beginning of the Burger Court since he saw a very unpleasant right-turn, but it was Blackmun starting to break left and his realizing that Powell was more swingy than expected which gave him hope to plow ahead.
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In this scenario, Blackmun may be nominated for Black or Harlan's seat. Burger would lobby for him.
 
The Humphrey-verse speculation is interesting and plausible. Though to be specific Douglas digged in less because of Nixon as because of the Republican House impeachment attempt on the back of Fortas' resignation, which made him very bloody-minded about his prior serious consideration of retirement - or at least gave him a serious motivation for hanging on. (His health had become very poor by the time of the 1968 election) When he finally did retire he couldn't bring himself to deliver his resignation notice to Ford, IIRC he had his wife deliver it to the deputy attorney general.
 
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Elektronaut said:
The Humphrey-verse speculation is interesting and plausible. Though to be specific Black digged in less because of Nixon as because of the Republican House impeachment attempt on the back of Fortas' resignation, which made him very bloody-minded about his prior serious consideration of retirement - or at least gave him a serious motivation for hanging on. (His health had become very poor by the time of the 1968 election) When he finally did retire he couldn't bring himself to deliver his resignation notice to Ford, IIRC he had his wife deliver it to the deputy attorney general.
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You mean Douglas, not Black.
 
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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Thinking about this, it makes sense why they didn't go for Bork in 1986. Scalia was a bit less conservative on racial discrimination issues than Rehnquist or Bork (the latter two argued for the right of private people [not government] to discriminate, whereas Scalia had done no such thing). To put up *two* nominees in 1986 who cast skepticism on the Constitutionality of part of the Civil Rights Act of 1964 would have been thermonuclear.

If the goal is to get Scalia and Bork on the court, it would make more sense to leave Rehnquist as an Associate Justice and just nominate Bork to be Chief Justice. Bork's 42-58 defeat in 1987 OTL might go go differently without the preparation the Democrats had done in anticipation of his nomination and there being 8 additional Republican Senators.

Scalia would proceed to get confirmed in 1987 because he'd be an easier sell than Bork for the reasons mentioned already (less inflammatory civil rights positions, less of a paper trail, Italian-American, etc.).

In his later years, Rehnquist's efficacy on the court waned. As he got older, he didn't have time to do the duties of Chief Justice and act as a Conservative crusader on the bench. He'd probably be much more Conservative and focused on that.

Bork being confirmed could either hasten Thomas's advancement or prevent it entirely. Thomas was put on the DC Circuit in 1990 following Bork's retirement. If the seat opens up in 1986 instead of 1990, it could either mean Thomas is put on the bench 4 years earlier OR that there is no opening for Thomas in 1990.

Without the memory of the 1987 Bork fight, Republicans won't be as intent on going for a 'stealth candidate' in 1990 or 1991.
The HW Bush Administration viewed Edith Jones and Lawrence Silberman as too openly Conservative following what a mess the Bork and Ginsburg nomination attempts had been, and without their nomination it is unclear if the same strategy would be pursued that lead to Souter being picked as stealth candidate. HW could end up nominating one of several conservative names to replace Brennan - Edith Jones, Laurence Silberman, Douglas H Ginsburg, or Clarence Thomas (4 years on the bench here). Or it could be a moderate to centrist pick like Anthony Kennedy, Ken Starr, or David Souter. Kennedy and probably Starr would both be more Conservative than Souter though.

If Thomas isn't an option in 1991 to replace Marshall, then the options are Emilio Garza (who'd only been on the Court of Appeals Bench a couple of months) and ... not a lot of other Conservative picks who aren't white guys. Maybe Jose Cabranes, under the idea that a centrist would still move the court in a preferred direction. Or they could go with Edith Jones. Abraham David Sofaer is another prospect - an Indian-born Jewish-American, a District Court Judge in the prestigious Southern District of New York, ally of Daniel Patrick Moynihan previously, and a Republican since 1984.
 
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