Alternate Supreme Courts Thread

[Jackson Lennock]

From this Paper:

Democratic Senator Key Pittman wrote to Attorney General Homer Cummings proposing an eleven-member Court just three days after the President surprised the congressional leadership with his own proposal. On February 20 a delegation of congressional leaders headed by Vice-President John Nance Garner, Senate Majority Leader Joe Robinson, and Senate Judiciary Committee Chairman Henry Fountain Ashurst urged the President to agree to a compromise providing for the addition of two or three additional justices. Roosevelt responded by “laugh[ing] in their faces.

11 or 12 Justices also had the advantageous rationale that it was to keep consistent with the old tradition of having a Justice per circuit. There were 11 Circuits at the time, and so you could argue the necessity of having a justice-per-circuit (11) or a justice-per-circuit-plus-Chief-Justice (12). Any issues with an even-numbered Court could be resolved by a tie-goes-to-the-Chief rule.

The Court was split between the Four Horsemen (Conservative), Three Musketeers (Liberal), and swing votes Roberts and Hughes. FDR didn't trust Hughes and Roberts to keep voting liberal if the threat of Court Packing went away. And FDR promised the first open seat to Senate Majority Leader Joe Robinson, who FDR thought might break Conservative on the bench. Accordingly, FDR wanted 6 new seats - 5 additional guaranteed liberals to support the three musketeers (8 total) against a potential coalition of the the Horsemen, Robinson, and the Swing votes (7 total).

But FDR could have taken out two of the horsemen just by raising their pensions. Sutherland and Van Devanter were in ill health, and it was a fear of poverty that kept them from retiring. When their pensions were upped, they retired OTL. That'd mean at most 5 Conservative and Moderate votes against a bloc of 6 liberals (if 11) or 7 liberals (if 12).

Supreme Court in 1938 ​

Chief Justice: Charles Evans Hughes (Center)
James McReynolds (Conservative)
Louis Brandeis (Liberal)
Pierce Butler (Conservative)
Harlan F Stone (Liberal)
Owen Roberts (Center)
Benjamin Cardozo (Liberal)
Joseph T Robinson (Center)
Hugo Black (Liberal)
Stanley Reed (Liberal)
William O Douglas (Liberal)
Felix Frankfurter (Liberal)

Supreme Court in 1941​

Chief Justice: Harlan F Stone (Liberal)
Owen Roberts (Center)
Joseph T Robinson (Center)
Hugo Black (Liberal)
Stanley Reed (Liberal)
William O Douglas (Liberal)
Felix Frankfurter (Liberal)
Frank Murphy (Liberal)
Robert Jackson (Liberal)
James Byrnes (Liberal / Center)
Wiley Rutledge (Liberal)
Sherman Minton (Liberal)

What makes a Justice a liberal in this period is tricky though. Byrnes, Jackson, Frankfurter, and Minton could quickly be considered center or conservative as things move away from judicial restraint towards economic regulation and towards the court as a protector of civil liberties.

 

[Ricardolindo]

Nixon considered nominating Arlen Specter to the Supreme Court. IMO, the problem is that he was a mere District Attorney. Anyways, the biggest impact would be if he was nominated for Harlan's seat instead of William Rehnquist. I think he'd turn out like Blackmun and Stevens.

 

[Bolt451]

Who do folks think Hilarys 3 picks would've been if she was elected in 2016

Assuming she could get any in

 

[Ricardolindo]

Who do folks think Hilarys 3 picks would've been if she was elected in 2016

Assuming she could get any in

I think she would have renominated Garland and he would have been confirmed.
I don't think Anthony Kennedy would have retired under Hillary or any Democrat.
Assuming Ginsburg didn't retire before the 2018 midterms and died at the same time as in our timeline, I think McConnell would have pulled a Garland on her seat.

 

[Jackson Lennock]

Who do folks think Hilarys 3 picks would've been if she was elected in 2016

Assuming she could get any in

Republicans would either try to confirm Garland in the lame duck to prevent her from putting up somebody more progressive or would request he be re-nominated. Either way, Mitch McConnell uses the confirmation as a way to delay confirmation of Clinton's cabinet picks, since it would take up Senate calendar space.

It's a 52 to 48 Senate, so Clinton would have to put forward safe choices. There are maybe three Republicans she can rely on to get to 51 (Graham, Murkowski, and Collins) but if McConnell wants them to vote no they'll probably vote no.


Ginsburg might retire in 2017, but I think she was very excited about having a liberal majority and getting to control the opinion-assignment process in cases where Roberts was in dissent. She probably waits a year - just like how Breyer waited a year because he wanted to enjoy getting to be the senior liberal. Ginsburg OTL assumed that Clinton would win in 2016 and wanted to be replaced by the first Woman president and didn't retire under Trump because she didn't want to be replaced by Trump.

Breyer might retire in 2017 if Ginsburg won't, but Breyer's much healthier than Ginsburg and five years younger than she was. Ginsburg had been in and out of the hospital for years, after all. But I really can't see him risking another Garland situation.

Ginsburg would be replaced by a woman. OTL names on the Garland list were Patricia Millet (DC Circuit), Ketanji Brown Jackson (DC District Court at the time, but likely bumped up to DC Circuit to replace Garland), and Jane Kelly (Eighth Circuit). Clinton might rely on Senate courtesy and nominate Harris or Klobuchar, but that seems unlikely. Ann Claire Williams (Seventh Circuit), Leah Ward Sears (Chief Justice of Georgia), or Diane Wood (Seventh Circuit) were names considered for the Sotomayor and Kagan seats and maybe the GOP would let a more liberal pick slide through if she were older. If Graham is able to have sway, J Michelle Childs (South Carolina District Court) might get the nod - he was promising to deliver double-digit Republican votes if Biden nominated her.

Breyer, the go-to seems like DC Circuit Chief Judge Sri Srinivasan, who was confirmed unanimously in 2013. Before that he clerked for a Conservative Reagan appointee in the fourth circuit, Sandra Day O'Connor, and had worked in the Justice Department under Bush and Obama.
Otherwise, Harold Koh or Paul Watford (the other 'final three' member for the Garland seat along with Srinivasan) are possibilities if Clinton wants a more liberal name. Srinivasan seems like the pick Republicans wouldn't raise a stink over though.

Chief Justice - John Roberts (Conservative)
Anthony Kennedy (Moderate Conservative)
Clarence Thomas (Conservative)
Samuel Alito (Conservative)
Sonia Sotomayor (Liberal)
Elena Kagan (Moderate Liberal)
Merrick Garland (Moderate Liberal)
J Michelle Childs (Moderate Liberal)
Sri Srinivasan (Moderate Liberal)

 

[Elektronaut]

Ginsburg had made it clear for a long time - I mean making it clear to the level of saying this publicly as early as c. 2000 - that she just wanted to go on and on and on into her nineties. She didn't retire when there was a Democratic president and senate in 2014 when she was already in her eighties, so there's no reason to believe she was waiting a couple of years for less favourable political circumstances just to drag things on. She'd clearly made a decision she wanted to stay for another decade at least.

I agree that Kennedy isn't retiring under Clinton.

Breyer may retire before 2020, but I think it's unlikely. IOTL there was a campaign to actually get him to retire, but that was prompted by Ginsburg's death and replacement, and the subsequent political circumstances being favourable to getting a successor to Breyer confirmed. If there's a Republican senate wave in 2018, then nobody is going to be pressuring him to retire - on the contrary. And I don't see him retiring off his own bat in 2017.

 

[Ricardolindo]

Ginsburg had made it clear for a long time - I mean making it clear to the level of saying this publicly as early as c. 2000 - that she just wanted to go on and on and on into her nineties. She didn't retire when there was a Democratic president and senate in 2014 when she was already in her eighties, so there's no reason to believe she was waiting a couple of years for less favourable political circumstances just to drag things on. She'd clearly made a decision she wanted to stay for another decade at least.

I agree that Kennedy isn't retiring under Clinton.

Breyer may retire before 2020, but I think it's unlikely. IOTL there was a campaign to actually get him to retire, but that was prompted by Ginsburg's death and replacement, and the subsequent political circumstances being favourable to getting a successor to Breyer confirmed. If there's a Republican senate wave in 2018, then nobody is going to be pressuring him to retire - on the contrary. And I don't see him retiring off his own bat in 2017.

You make a good argument. On the other hand, Ginsburg's granddaughter said she thought she wanted to retire under the first female President.

 

[Elektronaut]

You make a good argument. On the other hand, Ginsburg's granddaughter said she thought she wanted to retire under the first female President.

I assume that was said post-mortem. Well, the post-mortem views of family eager to condition the legacy of their recently departed are not what I would take as reliable.

Particularly when they contradict what said recently departed said themselves. Ginsburg stated publicly as late as 2018 that she had another five years left in her on the court, minimum.

All the public pronouncements Ginsburg made were that she wanted to stay on the court until her nineties, and had no intention of retiring in the middle 2010s. I think that's - or should be - fairly conclusive.

 

[Ricardolindo]

I posted this in the Carswell thread, https://forum.sealionpress.co.uk/index.php?threads/carswell-confirmed.4761/, but didn't get any replies. Could Justice Carswell prevent Roe v. Wade? I think Carswell would vote against it and without Blackmun on the Court, I think Burger would also vote against it and I doubt the Supreme Court would have been willing to make such a drastic decision with a mere 5-4 majority. Maybe they would vote to strike down the Texas law, which only allowed abortion in case of threat to the woman's life, but to uphold the Georgia law, which also allowed it in cases of rape and severe fetal deformation.

 

[Jackson Lennock]

Burger probably would have gone the other way on Roe v. Wade if not for being outvoted. Because he was outvoted, he switched his vote and then assigned the opinion to Blackmun. It was already a 6-1 vote OTL before the Court voted to allow for reargument so Rehnquist and Powell could participate in the case.

Douglas, Brennan, Marshall, and Stewart make a majority even if Burger dissents along with Carswell and White. But my guess is Burger votes with the pro-choice majority and assigns it to Stewart (who he'd trust to rule narrowly). Stewart was much more interested protecting doctors from zealous prosecutors than in establishing a very broad right to abortion.

The big problem with life and health of the mother and rape exceptions that led to Roe v Wade was that zealous prosecutors were bringing cases if they thought hospitals were providing too many abortions to really only be doing it for the reasons they said they were. Many hospitals capped the number of abortions they provided (regardless of medical need) as a precautionary measure keeping the prosecutors away. The medical profession was aghast at prosecutors interfering with their decisionmaking and undermining their medical practices. Roe v Wade without Blackmun probably is much more focused on these particular issues.

 

[Ricardolindo]

Burger probably would have gone the other way on Roe v. Wade if not for being outvoted. Because he was outvoted, he switched his vote and then assigned the opinion to Blackmun. It was already a 6-1 vote OTL before the Court voted to allow for reargument so Rehnquist and Powell could participate in the case.

Douglas, Brennan, Marshall, and Stewart make a majority even if Burger dissents along with Carswell and White. But my guess is Burger votes with the pro-choice majority and assigns it to Stewart (who he'd trust to rule narrowly). Stewart was much more interested protecting doctors from zealous prosecutors than in establishing a very broad right to abortion.

The big problem with life and health of the mother and rape exceptions that led to Roe v Wade was that zealous prosecutors were bringing cases if they thought hospitals were providing too many abortions to really only be doing it for the reasons they said they were. Many hospitals capped the number of abortions they provided (regardless of medical need) as a precautionary measure keeping the prosecutors away. The medical profession was aghast at prosecutors interfering with their decisionmaking and undermining their medical practices. Roe v Wade without Blackmun probably is much more focused on these particular issues.

You forgot Powell. Also, by seniority, it should be "Douglas, Brennan, Stewart, Marshall and Powell".
Burger was not an enthusiastic member of the Roe majority. Blackmun, himself, said this ten years later, read https://books.google.pt/books?id=Ci...=2ahUKEwiI0-Op7YL3AhX8JMUKHdMuBAoQ6AF6BAgFEAM. As the book noted, his concurrence appeared irreconcilable with the majority opinion.
Also, wasn't Blackmun's opinion fairly centered on the doctor? Ruth Bader Ginsburg actually criticized Roe for this.
Could you, please, expand on how do you think such an opinion by Stewart would have been?
Also, Blackmun originally wanted to establish a constituional right to abortion only in the first trimester but Powell then recommended to have it until the end of the second trimester because of viability.

 

[Jackson Lennock]

You forgot Powell. Also, by seniority, it should be "Douglas, Brennan, Stewart, Marshall and Powell".
Burger was not an enthusiastic member of the Roe majority. Blackmun, himself, said this ten years later, read https://books.google.pt/books?id=Ci...=2ahUKEwiI0-Op7YL3AhX8JMUKHdMuBAoQ6AF6BAgFEAM. As the book noted, his concurrence appeared irreconcilable with the majority opinion.
Also, wasn't Blackmun's opinion fairly centered on the doctor? Ruth Bader Ginsburg actually criticized Roe for this.
Could you, please, expand on how do you think such an opinion by Stewart would have been?
Also, Blackmun originally wanted to establish a constituional right to abortion only in the first trimester but Powell then recommended to have it until the end of the second trimester because of viability.

I didn't forget Powell [or Rehnquist]. I was talking about the Seven Justices who first heard Roe v. Wade before it was ordered for reargument to allow Powell and Rehnquist to participate.

 

[Ricardolindo]

Blackmun went from moderate conservative to consistent liberal over time, mainly over the hate mail he got over the abortion issue but also because of the combo of Brennan politicking him and Burger offending him.

Kennedy moved left on social issues over time (from Webster to Casey, for example; or from the two Carhart cases to Whole Women's Health in 2016) but they were much smaller drifts and he still remained otherwise conservative in areas like criminal law and economic matters. Blackmun moved left on both of those things. Look at how the one Commerce case between NLRB (1937) and Lopez (1995) where the government lost - National League of Cities v Usery (1976) - was undone within a decade because Blackmun drifted left.

Didn't Blackmun and Burger drift apart because Blackmun became more liberal rather fhan the other way around?
BTW, National League of Cities v. Usery, itself, overturned Maryland v. Wirz. That case is interesting because the only dissenter was the very liberal Willim O. Douglas. Why did Douglas dissent, especially considering he was a Franklin Delano Roosevelt nominee?

 

[Jackson Lennock]

Didn't Blackmun and Burgee drift apart because Blackmun became more liberal rather fhan the other way around?
BTW, National League of Cities v. Usery, itself, overturned Maryland v. Wirz. That case is interesting because the only dissenter was the very liberal Willim O. Douglas. Why did Douglas dissent, especially considering he was a Franklin Delano Roosevelt nominee?

Burger had a habit of joining the liberals when he was outvoted in order to write the opinion himself or assign it to the most moderate person in the majority. If he's still outvoted in Roe v Wade with Blackmun not there, he'll still join the majority and give it to Stewart - who is more socially moderate than Douglas, Brennan, or Marshall. He and Blackmun drifted because Blackmun got more liberal, but also because everybody on the Court hated Burger.

Douglas dissented because he didn't think the Federal Government could tell the States themselves how to run their own operations under the Commerce Clause. It was about application of federal labor law to state-run hospitals, schools, etc ... Maryland v Wirtz was about a state-run facility. If he'd been on the Court in 1976, Douglas probably would have been a fifth vote to overturn the case. Instead, it was merely 'narrowed' or 'distinguished' in National League of Cities v Usery (which was overturned in 1983).

MR. JUSTICE DOUGLAS, with whom MR JUSTICE STEWART concurs, dissenting.

The Court's opinion skillfully brings employees of state-owned enterprises within the reach of the Commerce Clause, and, as an exercise in semantics, it is unexceptionable if congressional federalism is the standard. But what is done here is nonetheless such a serious invasion of state sovereignty protected by the Tenth Amendment that it is, in my view, not consistent with our constitutional federalism.

The case has some of the echoes of New York v. United States, 326 U. S. 572, where a divided Court held that the Federal Government could tax the sale of mineral waters owned and marketed by New York. My dissent was, in essence, that the decision made the States pay the Federal Government "for the privilege of exercising the powers of sovereignty guaranteed them by the Constitution." 326 U.S. at 326 U. S. 596.

The present federal law takes a much more serious bite. The 1966 amendments to the Fair Labor Standards Act require the States to pay school and hospital employees a minimum wage escalating to $1.60 per hour in 1971. [Footnote 2/1] As a general rule, the amendments make the States pay their employees who work over 40 hours a week overtime compensation of 1 1/2 times their regular wage. [Footnote 2/2] There are civil sanctions against the State and its political subdivisions, [Footnote 2/3] and state officials may, apparently, be subjected to criminal penalties. [Footnote 2/4] The impact is pervasive, striking at all levels of state government. As Judge Northrop said in his dissent below, 269 F. Supp. 826, 853:

"By this Act, Congress is forcing, under threat of civil liability and criminal penalties, the state legislature or the responsible political subdivision of the state"

"1. to increase taxes (an impossibility in some of the political subdivisions without a state constitutional amendment); or"

"2. to curtail the extent and calibre of services in the public hospitals and educational and related institutions of the state; or "

"3. to reduce indispensable services in other governmental activities to meet the budgets of those activities favored by the United States Congress; or"

"4. to refrain from entering new fields of governmental activity necessitated by changing social conditions."

There can be no doubt but that the 1966 amendments to the Fair Labor Standards Act disrupt the fiscal policy of the States and threaten their autonomy in the regulation of health and education. Yet the Court considers it irrelevant that these federal regulations are to be enforced against sovereign States, and limits its consideration to "whether there is a rational basis for regarding them as regulations of commerce among the States."

The States are not totally immune from federal regulation under the commerce power of Congress. Parden v. Terminal R. Co., 377 U. S. 184, and United States v. California., 297 U. S. 175, subjected state-owned railroads to the Federal Employers' Liability Act, 45 U.S.C. § 51 et seq., and the Safety Appliance Act, 45 U.S.C. § 1 et seq.; Board of Trustees v. United States, 289 U. S. 48, required a state university to pay federal customs duties on educational equipment it imported. In Oklahoma v. Atkinson Co., 313 U. S. 508, the Federal Government was permitted to condemn 100,000 acres of state land for a reservoir to control commerce-paralyzing floods. In Sanitary District v. United States, 266 U. S. 405, a State was prohibited from diverting water from the Great Lakes necessary to ensure navigability, a phase of commerce.

In none of these cases, however, did the federal regulation overwhelm state fiscal policy. It is one thing to force a State to purchase safety equipment for its railroad, and another to force it either to spend several million more dollars on hospitals and schools or substantially reduce services in these areas. The commercepower cases the Court relies on are simply not apropos.

In the area of taxation, on the other hand, the Court has recognized that the constitutional scheme of federalism imposes limits on the power of the National Government to tax the States. E.g., New York v. United States, 326 U. S. 572. The Court will not permit the Federal Government to utilize the taxing power to snuff out state sovereignty, Metcalf & Eddy v. Mitchell, 269 U. S. 514, recognizing that the power to tax is the power to destroy. M'Culloch v. Maryland, 4 Wheat. 316, 17 U. S. 431. The exercise of the commerce power may also destroy state sovereignty. All activities affecting commerce, even in the minutest degree, Wickard v. Filburn, 317 U. S. 111, may be regulated and controlled by Congress. Commercial activity of every stripe may in some way interfere "with the [interstate] flow of merchandise" or interstate travel. Katzenbach v. McClung, 379 U. S. 294, 379 U. S. 299-300. The immense scope of this constitutional power is demonstrated by the Court's approval in this case of regulation on the basis of the "enterprise concept" -- which is entirely proper when the regulated "businesses" are not essential functions being carried on by the States.

Yet state government itself is an "enterprise" with a very substantial effect on interstate commerce, for the States spend billions of dollars each year on programs that purchase goods from interstate commerce, hire employees whose labor strife could disrupt interstate commerce, and act on such commerce in countless subtle ways. If constitutional principles of federalism raise no limits to the commerce power where regulation of state activities are concerned, could Congress compel the States to build superhighways crisscrossing their territory in order to accommodate interstate vehicles, to provide inns and eating places for interstate travelers, to quadruple their police forces in order to prevent commerce-crippling riots, etc.? Could the Congress virtually draw up each State's budget to avoid "disruptive effect . . . on commercial intercourse."? Atlanta Motel v. United States, 379 U. S. 241, 379 U. S. 257.

If all this can be done, then the National Government could devour the essentials of state sovereignty, though that sovereignty is attested by the Tenth Amendment. The principles which should guide us in this case are set forth in the several opinions in New York v. United States, supra. As Mr. Chief Justice Stone said there, the National Government may not "interfere unduly with the State's performance of its sovereign functions of government." 326 U.S. at 326 U. S. 587. It may not "impair the State's functions of government," id. at 326 U. S. 594 (dissenting opinion of MR JUSTICE DOUGLAS, joined by MR. JUSTICE BLACK). As Mr. Justice Frankfurter observed, "[t]here are, of course, State activities . . . that partake of uniqueness from the point of view of intergovernmental relations." Id. at 326 U. S. 582.

Whether, in a given case, a particular commerce power regulation by Congress of state activity is permissible depends on the facts. The Court must draw the "constitutional line between the State as government and the State as trader. . . ." New York v. United States, supra, at 326 U. S. 579 (opinion of Mr. Justice Frankfurter). In this case, the State as a sovereign power is being seriously tampered with, potentially crippled.

I would reverse the judgment below.

[Footnote 2/1] 29 U.S.C. §§ 203(d), 206(b) (1964 ed., Supp. II).

[Footnote 2/2] 29 U.S.C. § 207(b) (1964 ed., Supp. II). Special rules are applicable to hospitals under § 207(j) based on an 80-hour, 14-day work period. No special rules apply to school employees. See discussion of the overtime pay provisions by Chief Judge Thomsen, 269 F. Supp. at 851-852.

[Footnote 2/3] 29 U.S.C. §§ 203(d), 216(b).

[Footnote 2/4] 29 U.S.C. §§ 203(a), 215, 216(a).

 

[Ricardolindo]

Burger had a habit of joining the liberals when he was outvoted in order to write the opinion himself or assign it to the most moderate person in the majority. If he's still outvoted in Roe v Wade with Blackmun not there, he'll still join the majority and give it to Stewart - who is more socially moderate than Douglas, Brennan, or Marshall. He and Blackmun drifted because Blackmun got more liberal, but also because everybody on the Court hated Burger.

Douglas dissented because he didn't think the Federal Government could tell the States themselves how to run their own operations under the Commerce Clause. It was about application of federal labor law to state-run hospitals, schools, etc ... Maryland v Wirtz was about a state-run facility. If he'd been on the Court in 1976, Douglas probably would have been a fifth vote to overturn the case. Instead, it was merely 'narrowed' or 'distinguished' in National League of Cities v Usery (which was overturned in 1983).

I knew about Burger's habit. He even changed his vote in United States v. Nixon so he could write the opinion.
It's argued Rehnquist was less conservative as Chief Justice because he wanted to write majority opinions. Is that true? I know that, unlike Burger, he never changed his conference vote.
Thanks for the explanation about Douglas. I didn't know Stewart had joined his dissent. Wikipedia says National League of Cities v. Ussery overturned Maryland v. Wirz.

 

[Jackson Lennock]

I knew about Burger's habit. He even changed his vote in United States v. Nixon so he could write the opinion.
It's argued Rehnquist was less conservative as Chief Justice because he wanted to write majority opinions. Is that true? I know that, unlike Burger, he never changed his conference vote.
Thanks for the explanation about Douglas. I didn't know Stewart had joined his dissent. Wikipedia says National League of Cities v. Ussery overturned Maryland v. Wirz.

Wirz was about government run facilities like hospitals and schools, but Ussery was about whether central governmnet functions like clerical staff had to abide by labor law. Stewart was too precedent-minded to overturn a recent opinion in Ussery. The court overturned Ussery in 1983 because it thought it was too hard to draw a line between something government-run and something core to government functioning. Why they didn't just overturn Maryland v Wirz instead, I don't know. Later on the Court sort of made Maryland v Wirz meaningless when it said the 11th Amendment barred lawsuits against state governments without their consent.

If Rehnquist ever voted in a particular way to control the opinion, he did it far more rarely and in a far subtler way than Burger did. Maybe Dickerson was an example of this. He was much more respected as a Chief by his colleagues than Burger had been.

It's also possible Rehnquist moderated because he finally had a Court where he could be in the majority. If you're the lone guy on the fringe in an 8-1 opinion, why not shoot for the stars? But if you toning it down makes the difference between a majority and a dissent, you probably tone it down.

 

[Ricardolindo]

Wirz was about government run facilities like hospitals and schools, but Ussery was about whether central governmnet functions like clerical staff had to abide by labor law. Stewart was too precedent-minded to overturn a recent opinion in Ussery. The court overturned Ussery in 1983 because it thought it was too hard to draw a line between something government-run and something core to government functioning. Why they didn't just overturn Maryland v Wirz instead, I don't know. Later on the Court sort of made Maryland v Wirz meaningless when it said the 11th Amendment barred lawsuits against state governments without their consent.

If Rehnquist ever voted in a particular way to control the opinion, he did it far more rarely and in a far subtler way than Burger did. Maybe Dickerson was an example of this. He was much more respected as a Chief by his colleagues than Burger had been.

It's also possible Rehnquist moderated because he finally had a Court where he could be in the majority. If you're the lone guy on the fringe in an 8-1 opinion, why not shoot for the stars? But if you toning it down makes the difference between a majority and a dissent, you probably tone it down.

I just realized, it's Wirtz, not Wirz.
As I said, I know Rehnquist never changed his conference vote, unlike Burger. However, he was less committed to ideological purity than Scalia and Thomas. A 2005 article, https://www.theatlantic.com/magazine/archive/2005/04/rehnquist-the-great/303820/, discussed this. However, I would question the assertion that he saved Miranda v. Arizona. I don't think O'Connor and Kennedy would have voted to overturn it even if he did.

 

[Jackson Lennock]

Even Bork seemed uninterested in upsetting some longstanding precedents, such as the old New Deal Commerce cases, IIRC.

If Douglas had been more stubborn and retired later, there'd have been 5 votes to overturn Maryland v Wirz outright (Burger, Blackmun, Powell, Rehnquist, and Douglas). Stewart either would join the other 5 or concur in the case. State-owned enterprises like universities and hospitals would now be unconstrained by Federal labor law. Maybe New York v United States, on whether the Federal Government can tax a state for selling its own resources would be revisited.

It'd be ironic to see Douglas write opinions limiting Federal Commerce power.

Another possibility, assuming Nixon and Ford nominate the same people as OTL, is William T Coleman being nominated instead of Thurgood Marshall. Coleman was a centrist and supportive of some limits on Federal Commerce Power (he argued the states' rights side in the case that overturned National League of Cities v. Ussery, Garcia v. San Antonio Metropolitan Transit Authority). Ironically, the Reagan Administration argued to expand federal power there, mainly because the Government had an obligation to defend the constitutionality of its own laws. He seems very similar to Powell, and would likely join opinions supporting the right to privacy and moderate affirmative action policies.

 

[Ricardolindo]

I posted this in the Carswell thread, https://forum.sealionpress.co.uk/index.php?threads/carswell-confirmed.4761/, but didn't get any replies. Could Justice Carswell prevent Roe v. Wade? I think Carswell would vote against it and without Blackmun on the Court, I think Burger would also vote against it and I doubt the Supreme Court would have been willing to make such a drastic decision with a mere 5-4 majority. Maybe they would vote to strike down the Texas law, which only allowed abortion in case of threat to the woman's life, but to uphold the Georgia law, which also allowed it in cases of rape and severe fetal deformation.

Burger probably would have gone the other way on Roe v. Wade if not for being outvoted. Because he was outvoted, he switched his vote and then assigned the opinion to Blackmun. It was already a 6-1 vote OTL before the Court voted to allow for reargument so Rehnquist and Powell could participate in the case.

Douglas, Brennan, Marshall, and Stewart make a majority even if Burger dissents along with Carswell and White. But my guess is Burger votes with the pro-choice majority and assigns it to Stewart (who he'd trust to rule narrowly). Stewart was much more interested protecting doctors from zealous prosecutors than in establishing a very broad right to abortion.

The big problem with life and health of the mother and rape exceptions that led to Roe v Wade was that zealous prosecutors were bringing cases if they thought hospitals were providing too many abortions to really only be doing it for the reasons they said they were. Many hospitals capped the number of abortions they provided (regardless of medical need) as a precautionary measure keeping the prosecutors away. The medical profession was aghast at prosecutors interfering with their decisionmaking and undermining their medical practices. Roe v Wade without Blackmun probably is much more focused on these particular issues.

Burger had a habit of joining the liberals when he was outvoted in order to write the opinion himself or assign it to the most moderate person in the majority. If he's still outvoted in Roe v Wade with Blackmun not there, he'll still join the majority and give it to Stewart - who is more socially moderate than Douglas, Brennan, or Marshall.

What about if in addition to Carswell instead of Blackmun, we had Richard Poff instead of Lewis Powell? Admittedly, that wouldn't affect the original argument.

 

[Jackson Lennock]

Discounting my 7-Justice analysis, I don't really know how Poff would rule in an abortion case. In 1981 he upheld the conviction of an abortion provider while on the Virginia Supreme Court, but that conviction was also affirmed by the United States Supreme Court 8 to 1.

If he's opposed to the Constitutional right of privacy, then on a nine judge court it's White, Poff, Carswell, Rehnquist, and potentially Burger as the tiebreaker.

It's worth considering that the Court's 1972 abortion case United States v Vuitch was about constitutional requirements regarding prosecution and statutory vagueness. The Court said there (a) 'life and health of the woman' without any further clarification might be vague, it isn't unconstitutionally vague because it's the sort of thing that gets dealt with in medical negligence cases all of the time so it isn't unconstitutionally vague [implicitly, this meant deferring to the standard of a 'reasonable doctor' - i.e., what the medical profession thinks is appropriate - including mental health], (b) that an abortion was not provided for the 'life and health of the woman' is an element to be proven by the prosecution beyond a reasonable doubt, not something the defendant has to prove, (c) the Court did have jurisdiction.

Only Black, White, and Burger joined the Vuitch opinion in full. Douglas and Stewart joined on the jurisdiction question but dissented on the merits (Stewart and Douglas finding the law unconstitutionally vague, Douglas also suggesting a general right to abortion). Brennan and Marshall didn't address the merits, they dissented on jurisdictional grounds. Harlan and Blackmun joined the opinion on the merits question, but thought there wasn't jurisdiction to hear the case.

On the one hand, you can view Vuitch as a case upholding the banning of almost all abortions in DC. On the other hand, it's a case deferring very heavily to the decisionmaking of the medical profession [including saying that a default meaning for life and health of the woman includes mental health]. If there aren't 5 votes for something like OTL's Roe v Wade, Brennan and his ally Marshall might water themselves down a lot to get to 5. The case outcomes might look a lot like Burger's concurrence in Roe.

MR. CHIEF JUSTICE BURGER, concurring

I agree that, under the Fourteenth Amendment to the Constitution, the abortion statutes of Georgia and Texas impermissibly limit the performance of abortions necessary to protect the health of pregnant women, using [410 U.S. 179, 208] the term health in its broadest medical context. See United States v. Vuitch, 402 U.S. 62, 71 -72 (1971). I am somewhat troubled that the Court has taken notice of various scientific and medical data in reaching its conclusion; however, I do not believe that the Court has exceeded the scope of judicial notice accepted in other contexts.

In oral argument, counsel for the State of Texas informed the Court that early abortion procedures were routinely permitted in certain exceptional cases, such as nonconsensual pregnancies resulting from rape and incest. In the face of a rigid and narrow statute, such as that of Texas, no one in these circumstances should be placed in a posture of dependence on a prosecutorial policy or prosecutorial discretion. Of course, States must have broad power, within the limits indicated in the opinions, to regulate the subject of abortions, but where the consequences of state intervention are so severe, uncertainty must be avoided as much as possible. For my part, I would be inclined to allow a State to require the certification of two physicians to support an abortion, but the Court holds otherwise. I do not believe that such a procedure is unduly burdensome, as are the complex steps of the Georgia statute, which require as many as six doctors and the use of a hospital certified by the JCAH.

I do not read the Court's holdings today as having the sweeping consequences attributed to them by the dissenting Justices; the dissenting views discount the reality that the vast majority of physicians observe the standards of their profession, and act only on the basis of carefully deliberated medical judgments relating to life and health. Plainly, the Court today rejects any claim that the Constitution requires abortions on demand.

Litigation surrounding abortion would end up being much more technical:
What constitutes too much interference by a prosecutor with the practice of a licensed professional?
What makes a statute too vague?
What is the maximum allowable criminal penalty for a person found to breach the abortion right?
How clear must a statute be for a court to not infer broad deference to doctors?
At what point is a gun-ho prosecutor just engaging in tortious interference with a hospital's operations?
Given Griswold's and Stanley's emphases on privacy being tied to not airing private details in court, does the right of privacy at least extend to limiting the sort of evidence a Prosecutor can bring in an abortion prosecution?

As a practical matter, even without Roe, abortion activists could pretty effectively secure doctors much more ability to practice medicine in the abortion context and could make the lives of zealous prosecutors very difficult.