Alternate Supreme Courts Thread

[Ricardolindo]

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.



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.

Thanks for the detailed reply
What was the 1981 case?
I was aware of the Vuitch decision.
A related question: What if Blackmun had stuck with the first trimester only?

 

[Jackson Lennock]

Simoupolos v Virginia was the 1982 Supreme Court Case. In 1981 the Virginia case was Simoupolos v Commonwealth (I think).

Chris SIMOPOULOS, Appellant, v. VIRGINIA.

www.law.cornell.edu

People would probably care a lot less if it was just the first trimester. Many pro-lifers would still be fired up, but it would be nowhere near the hot potato as OTL's Roe. There would still be endless litigation on things like parental consent laws, waiting periods, etc. though and there's no clear reason why OTL holdings on that stuff between Roe and Casey would be very different. Casey might actually settle most of the abortion debate a lot, since a lot of the opposition to Roe had as much to do with the Court's interference with laws surrounding abortion as it had to do with laws prohibiting abortion.

Many legal conservatives would still grumble about Roe on doctrinal grounds though.

 

[Ricardolindo]

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.

Where did you read this?
According to The Brethren, it was because Blackmun asked to delay it as he found the opinion hard to write.

 

[Ricardolindo]

Simoupolos v Virginia was the 1982 Supreme Court Case. In 1981 the Virginia case was Simoupolos v Commonwealth (I think).

Chris SIMOPOULOS, Appellant, v. VIRGINIA.

www.law.cornell.edu

People would probably care a lot less if it was just the first trimester. Many pro-lifers would still be fired up, but it would be nowhere near the hot potato as OTL's Roe. There would still be endless litigation on things like parental consent laws, waiting periods, etc. though and there's no clear reason why OTL holdings on that stuff between Roe and Casey would be very different. Casey might actually settle most of the abortion debate a lot, since a lot of the opposition to Roe had as much to do with the Court's interference with laws surrounding abortion as it had to do with laws prohibiting abortion.

Many legal conservatives would still grumble about Roe on doctrinal grounds though.

The big question is: Would Republican Presidents still want to nominate Justices who would overturn this less drastic Roe?

 

[Ricardolindo]

David Tenner discussed this at https://www.alternatehistory.com/forum/threads/mr-justice-ribicoff.436465/.
John F. Kennedy considered Abraham Ribicoff for Frankfurter's seat. What if he nominated him instead of Arthur Goldberg? I think he would have stayed on the Supreme Court for much longer than Goldberg. Miliken v. Bradley would go the other way, which as @Jackson Lennock alluded to, would be a political disaster for the Democrats.

 

[Jackson Lennock]

The big question is: Would Republican Presidents still want to nominate Justices who would overturn this less drastic Roe?

It depends on how much they interfere with other things like parental consent laws and whether later opinions redefine or expand the meaning of the case, I would think.

You could compare it to Griswold. Griswold (1965) was about the right of marital privacy within the home and not wanting intimate marital details coming out in court. Stanley (1969) made sense in this respect because it was also about private reading of pornographic materials in the home. Eisenstadt (1972) was about whether it made sense to discriminate between the married and the unmarried under the Equal Protection Clause. It wasn't until Carey v Population Services International in 1977 that the Court said Griswold was really about a fundamental right to reproductive autonomy ... basically rewriting the meaning of the precedents. Heck, even Roe sort of was about privacy between the doctor and the patient and it wasn't until later that it got recast principally as a matter of women's rights.

Ironically, Bowers v Hardwick is a much easier sell under Griswold and Stanley than Roe is, I think.

 

[Ricardolindo]

It depends on how much they interfere with other things like parental consent laws and whether later opinions redefine or expand the meaning of the case, I would think.

You could compare it to Griswold. Griswold (1965) was about the right of marital privacy within the home and not wanting intimate marital details coming out in court. Stanley (1969) made sense in this respect because it was also about private reading of pornographic materials in the home. Eisenstadt (1972) was about whether it made sense to discriminate between the married and the unmarried under the Equal Protection Clause. It wasn't until Carey v Population Services International in 1977 that the Court said Griswold was really about a fundamental right to reproductive autonomy ... basically rewriting the meaning of the precedents. Heck, even Roe sort of was about privacy between the doctor and the patient and it wasn't until later that it got recast principally as a matter of women's rights.

Ironically, Bowers v Hardwick is a much easier sell under Griswold and Stanley than Roe is, I think.

How so?

 

[Ricardolindo]

David Tenner discussed this at https://www.alternatehistory.com/forum/threads/mr-justice-ribicoff.436465/.
John F. Kennedy considered Abraham Ribicoff for Frankfurter's seat. What if he nominated him instead of Arthur Goldberg? I think he would have stayed on the Supreme Court for much longer than Goldberg. Miliken v. Bradley would go the other way, which as @Jackson Lennock alluded to, would be a political disaster for the Democrats.

If Blackmun is nominated instead of Rehnquist and still moved to the left, the Supreme Court would have been more liberal.

 

[Jackson Lennock]

How so?

How is Bowers more consistent with Griswold and Stanley than Roe is?

Bowers is about what you get up to in the privacy of your own home (or 'temporary home' like a hotel, motel, etc.).
Griswold was fairly concerned about the intimate sexual details between husband and wife being aired out in court - hence it being described as "spying on the marital couch."
Stanley was about somebody reading pornographic material in the confines of their own home.

You could certainly describe Roe as a matter of medical privacy, but that's a bit different from the privacy-in-one's-own-home aspect of those other three cases.

 

[Jackson Lennock]

If Jimmy Carter had been reelected, I think Carter would have replaced Potter Stewart in 1981 with the first Woman on the Supreme Court. My guess is it would be Shirley Hufsetdler: Secretary of Education from November 1979 to January 1981 OTL, US Court of Appeals for the Ninth Circuit Judge from September 1968 to November 1979, and a judge in the California state system from 1961 to 1969. But other names could include Ruth Bader Ginsburg (US Court of Appeals Judge since June 1980, prominent Supreme Court litigator since 1971, and a professor before that and District Court clerk for two years) or (keeping with Carter's Georgia preferentialism) Phyllis A. Kravitch (US Court of Appeals judge since March 1979, and before that 32 years in private practice and 4 years in the Georgia Court system.

Thurgood Marshall might retire during a second Carter term for health reasons, and Carter may replace him with Solicitor General Wade McCree. McCree died in 1987 historically, so depending on who is President in 1987 that could be a very big difference since McCree died then.

From 1981 onwards, there'd be a liberal majority again of Brennan, Marshall/McCree, Hudstedler/Ginsburg/Kravitch, Blackmun, and Stevens. There would be a centrist cohort of Blackmun, Stevens, Powell, and White too though, especially on criminal and business issues.

If the Republicans win in 1984 (they may or may not, since the booming 80s economy was partly a result of Reagan giving the okay for Volcker to crash the economy to fight inflation in 1981, setting up a low inflation boom throughout the 80s ... but Carter might also do that, as he was a fairly ethical man who probably would decide similarly) I think the Republicans would put a moderate like William T Coleman, Amalya Kearse, or Lawrence W Pierce in the seat as there wouldn't be any sort of Conservative figure to nominate at that point.
If there is still a Bork fight, I'm not sure it would be as intense as historically. Here, Powell wouldn't be the swing vote, so the stakes would be much lower. But I'm not sure Bork would even be nominated, since he was only made a judge in 1982 historically. The same issue applies for Scalia. On the other hand, Doug Ginsburg was only put on the bench in 1986 and he was nominated in 1987 after Bork failed. But my guess is Anthony Kennedy gets looked at sooner, or Senator Hatch gets considered, or maybe Lawrence Silberman gets a look.

If Democrats win in 1984, McCree is replaced by a liberal figure and there are no major changes. Powell and Burger probably delay their retirements until after 1988. Brennan might retire sooner though, but I'm doubtful of that because I think he really enjoyed being on the Court.



In hindsight, other names considered for the Kavanaugh seat in 2018 were Raymond Kethledge (Sixth Circuit), Amul Thapar (Sixth Circuit), and Amy Coney Barrett (Seventh Circuit).
If Kethledge or Thapar are nominated instead of Kavanaugh, it wouldn't be a mess akin to OTL and Democrats might retake the Senate. The controversy surrounding the Kavanaugh nomination caused big poll swings in red states with strong Democratic candidates. OTL races like Indiana, North Dakota, Missouri, Florida, and maybe Tennessee could go the other way here - meaning a 53 to 47 Democratic Senate and the Republicans not getting two more years to fill up the lower courts and the Ginsburg seat not getting filled by Republicans. It would also be a Democratic senate running the impeachment trial, with some consequences there regarding bringing in witnesses.

If it was Barrett, she might slide through still and be worse for the Democrats than the Kavanaugh blowback was. In 2020 Republicans were very eager to bait Democrats into insulting Catholic voters (as had already seemed to be an issue during Barrett's Court of Appeals nomination/confirmation), and religious and culturally conservative voters would likely be similarly offended by personal smears against Barrett's religion than against Kavanaugh. She'd also fire up Democratic voters a lot less than Kavanaugh did. Despite Collins and Murkowski probably being unwilling to vote for Barrett because of her open position criticizing Roe as a law professor, she likely still slides through because Manchin and Donnelly would vote for her. Voting for Kavanaugh saved Manchin, and I can't see the Democratic Senator from Indiana Joe Donnelly voting down a law professor from Notre Dame. Democrats would be in a better position later though, since it would be a 52-48 Senate instead of a 53-47 Senate. If 2020 goes the same as historically, then Democrats enter 2021 with 51 Senators and not 50. Democrats also wouldn't have as much pressure to support Court Packing without the base being shocked and offended by the Kavanaugh confirmation, which could help them a lot in 2020.

Barrett wouldn't be that different from Kavanaugh, although she's been a bit more liberal on criminal procedure and death penalty cases, and generally has come off as trying to provide more opportunities for the government to save itself in oral arguments (preferring narrower rulings than Kavanaugh). Barrett might be a fifth vote in Fourth Amendment cases (where Breyer is and Kennedy was often somewhat Conservative and pro-police).

 

[Elektronaut]

Stewart retiring under a Democrat isn't a given - he was very Republican and a close friend of George Bush after all - but it's possible. He certainly wasn't interested in going on and on.

A decent part of the reason Marshall didn't retire under Carter OTL and dug his heels in about retirement in general is precisely because he felt he was being railroaded off the court in favour of McCree by a political and legal establishment which had never respected him. It really poisoned Marshall against retirement, and he was pretty furious at McCree personally. It's possible Marshall retires in the 1981-1985 term, but if so he'd only do so on the acceptance by the White House of Leon Higginbotham as his successor, a la Kennedy and Kavanaugh.

 

[Jackson Lennock]

Stewart retiring under a Democrat isn't a given - he was very Republican and a close friend of George Bush after all - but it's possible. He certainly wasn't interested in going on and on.

A decent part of the reason Marshall didn't retire under Carter OTL and dug his heels in about retirement in general is precisely because he felt he was being railroaded off the court in favour of McCree by a political and legal establishment which had never respected him. It really poisoned Marshall against retirement, and he was pretty furious at McCree personally. It's possible Marshall retires in the 1981-1985 term, but if so he'd only do so on the acceptance by the White House of Leon Higginbotham as his successor, a la Kennedy and Kavanaugh.

I think Stewart retires in a Carter second term because he was getting old and wanted to spend time with his grandchildren before he died. He passed in 1985 OTL, so it isn't as if he had much time left.

I didn't know that about Marshall - that's interesting to learn. It's sort of poetic that Marshall and his successor both disliked the political and legal establishment, despite the profound differences on jurisprudence. Might Marshall have felt that his declining health required a retirement though?

 

[Elektronaut]

I think Stewart retires in a Carter second term because he was getting old and wanted to spend time with his grandchildren before he died. He passed in 1985 OTL, so it isn't as if he had much time left.

I didn't know that about Marshall - that's interesting to learn. It's sort of poetic that Marshall and his successor both disliked the political and legal establishment, despite the profound differences on jurisprudence. Might Marshall have felt that his declining health required a retirement though?

Stewart wasn't old, he was sixty-six and had only just qualified for full retirement benefits the year before. His health was fine at the time he retired; he wasn't in a decline or anything by that point. I'm dubious about him retiring under a Democrat, given he was still quite young in court retirement terms. (He was someone who put a high stock on the institution of the court.)

Marshall's health was pretty bad as early as the Nixon years, and was very bad by the Carter years, if he was operating on health grounds alone he would have retired then. As I say, I think it's possible he could retire if the Carter WH gives him an understanding on his successor. But, I mean, I assume everyone on here knows how competent the Carter WH was. If he thinks McCree is still his likely successor, then he will absolutely dig his heels in about retirement.

I note McCree turned sixty in 1980, and it sounds like his health was poor in the years up to his death; it's possible Marshall could retire in 1983 before the election year, when presumably McCree would be considered too old, and Higginbotham would have six years on the appeals court under him.

 

[Ricardolindo]

Stewart wasn't old, he was sixty-six and had only just qualified for full retirement benefits the year before. His health was fine at the time he retired; he wasn't in a decline or anything by that point. I'm dubious about him retiring under a Democrat, given he was still quite young in court retirement terms. (He was someone who put a high stock on the institution of the court.)

Marshall's health was pretty bad as early as the Nixon years, and was very bad by the Carter years, if he was operating on health grounds alone he would have retired then. As I say, I think it's possible he could retire if the Carter WH gives him an understanding on his successor. But, I mean, I assume everyone on here knows how competent the Carter WH was. If he thinks McCree is still his likely successor, then he will absolutely dig his heels in about retirement.

I note McCree turned sixty in 1980, and it sounds like his health was poor in the years up to his death; it's possible Marshall could retire in 1983 before the election year, when presumably McCree would be considered too old, and Higginbotham would have six years on the appeals court under him.

Potter Stewart said he wanted to spend more time with his grandchildren and that he wanted to retire while he was still in good health. He actually considered retiring in 1980 but didn't do so as he didn't want to spark controversy as to whether a President should nominate a Justice in an election year.

 

[Vidal]

One draft of a Supreme Court in a world where Jimmy Carter is reelected, which I'm considering for my Jimmy Two timeline:

Bork Court, 1986-1989

1. Chief Justice Robert Bork, 1986-
2. William Brennan, 1956-
3. Byron White, 1962-
4. Harry Blackmun, 1970-
5. Lewis Powell, 1972-
6. William Rehnquist, 1972-
7. John Paul Stevens, 1975-
8. Shirley Hufstedler, 1981-
9. Barbara Jordan, 1983-

I tend to agree with @Ricardolindo about Stewart retiring in 1981 regardless of who is president. Yes, he was an Institutionalist, but he also refused to be considered for Chief Justice and while he was young, he'd been on the Court for more than 20 years, which is a healthy (though admittedly not unheard of for an institution with lifetime appointments) tenure on the Court. I think he was, sort of like Souter, just tired of doing the job.

This was also a point in time when political considerations were less prevalent for justices. IOTL, Marshall and Brennan would both leave office under presidents with whom they had ideological disagreements rather than trying to hold out for someone more in line with their thinking. Especially given that it was the creation of the Federalist Society and electoral success of the Moral Majority that helped to ramp up the ideological fights around the Court, it seems totally likely in a world in which Reagan is defeated, Stewart does not feel the pressure to stay on the Court so a "conservative" can replace him.

As for the possibility of another seat opening up for Carter: Conceivably, you could have Brennan retire in 1982 or 1983, after the death of his wife. His own health started to deteriorate at that point, and he considered leaving the Court. Ultimately, he decided instead to marry his long-term secretary and she inspired him to stay with the Court. He served another nine years. ITTL, it's possible he steps down.

There's also the question of Marshall, who did say later he regretted that he had to step down under a Republican president. Yes, Marshall's health problems were bad, but I do think he might have been motivated to step down under Carter during a second term, because it would have been the only point where his health, a Democratic president, and the "political calculus" lined up. That is to say, from 1977-1979 (the three years he would have considered retiring under Carter), he probably said "I have some more years in me" and assumed there was a good chance Democrats won at least one of the 1980, 1984, and 1988 elections. If it comes to 1983, and his health is still meager, and he thinks through what the future might look like, and Carter's approvals are only so-so (which seems likely), then he's saying, Republicans probably win in '84, and there's a good chance that person gets reelected in '88. Do I really think I can be here until 1993? I think that answer in his head is no. And again, he said before his death he regretted he was compelled to retire under a Republican, so we know he wanted a Democrat to replace him, I just think that in the early years of the Carter administration it seemed unlikely to him that Democrats would fail to hold power for the next 14-16 years.

If the seat that opens up is Marshall, Carter would definitely consider McCree, but as mentioned his health was already unstable, there was also Higginbotham, as mentioned, and then there was Barbara Jordan, considered for the Court by Clinton but she withdrew herself from contention because of her health. In 1983, she was already wheelchair-bound but her health was not debilitating. She was still teaching at the University of Texas and would address the Democratic National Convention nine years later. Given Carter's desire to name diverse nominees to the Court, picking the first African-American woman to the Court would appeal to him as would the ability to say he named two women.

I'm not sure this is the route I'll go, but I'm considering it.

In my estimation, Bork is able to be put in as Chief Justice by a Republican who wins in '84 because the '82 Midterms and '84 General will likely mean Republicans end up with a majority in the Senate, and while Bork lost some Republican votes IOTL, the dynamics here are a little different in that he's not replacing a swing vote, the hearings will be conducted by a Republican-controlled panel, and the crop of possible nominees is small given no Republican president's appointed someone to the federal judiciary in eight years. That said, if the Republicans do not have Senate control, or only a 1-2 seat majority, then I think you're looking at a different nominee (perhaps Orrin Hatch) or a failed Bork nomination followed by a Rehnquist elevation.

 

[Elektronaut]

I'm very doubtful on Brennan retiring when his wife died. It's true that he took an emotional nose-dive with her death, but it seems very out of character for him to retire; IOTL he was very equiovical about retiring even in 1990, nearly pulled his retirement announcement, and that was when his health was really beginning to flag. It sounds like, with a lot of people, his work really kept him going after his wife's death. (He also expressed his wish to still be on the court after his retirement, though that's perhaps not unusual with a lot of retired people)

His wife's death also happened in December, so he'd have half a year to seriously think over a retirement before the end of the court term. By summer 1983 I very much doubt he'd be in a retirement frame of mind.

I think Jordan's health and, let's be honest given we're talking about both the early eighties here and a moderate southerner as the potential nominating president, sexuality both completely rule her out to be honest.

 

[Elektronaut]

Bork having any chance whatsoever of an appointment really depends very much on what type of Republican wins in 1984 btw. Bork's nomination IOTL was very much a product of the Ed Meese justice department taking a very gung-ho approach - and even they turned him down once in favour of Scalia. It's quite possible, even likely IMO, that a Republican elected in 1984 would be much less right-wing than Reagan. If that's so, they'd be looking more at the Ken Starrs and Ralph Winters of the world than the Borks.

I know Ken Starr is much less interesting from an AH perspective than Bork and all, but yeah, there's absolutely no inevitability about Bork even being nominated. He absolutely is not a fixed point in 1980s speculation.

 

[Vidal]

I think Jordan's health and, let's be honest given we're talking about both the early eighties here and a moderate southerner as the potential nominating president, sexuality both completely rule her out to be honest.

It's not clear to me that her sexuality was totally well-known at the time -- and this was still pre-Hart when mentioning that sort of thing was taboo. From what I've read some of her colleagues did not know of her sexuality until her obituary was published and included mention of her partner.

I also don't think there's a lot of evidence that Carter deferred to the Religious Right on sexuality. He was vocally opposed to the Briggs Initiative and mentioned gay Americans in his convention address, and while he was not totally out front on gay issues either, he was certainly not the most conservative in his own party.

 

[Vidal]

Bork having any chance whatsoever of an appointment really depends very much on what type of Republican wins in 1984 btw. Bork's nomination IOTL was very much a product of the Ed Meese justice department taking a very gung-ho approach - and even they turned him down once in favour of Scalia. It's quite possible, even likely IMO, that a Republican elected in 1984 would be much less right-wing than Reagan. If that's so, they'd be looking more at the Ken Starrs and Ralph Winters of the world than the Borks.

I know Ken Starr is much less interesting from an AH perspective than Bork and all, but yeah, there's absolutely no inevitably about Bork even being nominated.

Certainly not inevitable. He fits clearly with the ideology of the Republican I imagine succeeding Carter, though.

I also think your take is a little too narrow in pinning this on "Ed Meese Justice Department" when you consider he was introduced to the Judiciary Committee by Gerald Ford, who certainly does not represent the Religious Right wing of the Party. Sure, Ford himself never appointed Bork to the Supreme Court, but that doesn’t take away from the fact Bork had a sort of grandfatherly figure in the conservative intellectual movement, and he was an oft-speculated about candidate for many years prior to his nomination for a reason.

He's not inevitable, sure, but I also think he would be a favorite for a conservative Republican president elected in '84 after eight years of no Republican judicial appointments.

 

[Ricardolindo]

I'm very doubtful on Brennan retiring when his wife died. It's true that he took an emotional nose-dive with her death, but it seems very out of character for him to retire; IOTL he was very equiovical about retiring even in 1990, nearly pulled his retirement announcement, and that was when his health was really beginning to flag. It sounds like, with a lot of people, his work really kept him going after his wife's death. (He also expressed his wish to still be on the court after his retirement, though that's perhaps not unusual with a lot of retired people)

His wife's death also happened in December, so he'd have half a year to seriously think over a retirement before the end of the court term. By summer 1983 I very much doubt he'd be in a retirement frame of mind.

I think Jordan's health and, let's be honest given we're talking about both the early eighties here and a moderate southerner as the potential nominating president, sexuality both completely rule her out to be honest.

Wasn't homophobia largely aimed against gay men rather than lesbians? From the homophobic speeches of the time I have read, I think they all focus on gay men, specifically. Even today, in some homophobic countries, lesbians are treated differently from gay men.
This is not to say lesbians were accepted, just that they often didn't face the outright hostility that gay men did.