Alternate Supreme Courts Thread

[Elektronaut]

Saying Thomas was the first choice for the Brennan seat, and Garza the first choice for the Marshall seat is stretching the definition of 'first choice' so loosely that it becomes meaningless. In an alternate reality where they were both better-positioned, Thomas may have been more seriously considered for the Brennan seat, and Garza may have been more seriously considered for the Marshall seat. But IOTL, they weren't the first choices or anything close to that.

Thomas was dismissed from serious consideration by everybody in 1990 at the first stage after names had been gathered, because while his politics were very well-known as a former Reagan-Bush official, he had almost no judicial experience to even out the scales at that point, having just started his work on the DC circuit. It was felt that he was too obviously political and could just be criticised as an appointee practically straight from the administration. The serious consideration focused on Edith Jones and Souter, and Souter won out largely because he was seen as much more capable of passing confirmation. They really wanted to avoid another Bork situation, and Edith Jones is/was Edith Jones.

Garza in 1991 was always behind Thomas in the running at every stage, as I outlined above.

Thornburgh left the administration and ran for the Senate in November in 1991. He was generally considered to be someone who might have had presidential ambitions in the right circumstances. He'd previously considered challenging Arlen Specter in 1986 for the Republican Senate nomination, when he was the outgoing governor.

 

[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.

Blackmun was also affected by personal experiences. He joined Rehnquist's homophobic dissent in Ratchford v. Gay Lib in 1978 which compared a group of gay students to people with measles advocating against quarantine. Blackmun changed his views of homosexuality because he found out a law clerk of his was gay. Blackmun was very close to his law clerks. To him, they were like grandchildren.

 

[Jackson Lennock]

@Elektronaut I respect that your position is informed and well-reasoned, but I continue to disagree. I have, however, enjoyed arguing the point with you.

Blackmun was also affected by personal experiences. He joined Rehnquist's homophobic dissent in Ratchford v. Gay Lib in 1978 which compared a group of gay students to people with measles advocating against quarantine. Blackmun changed his views of homosexuality because he found out a law clerk of his was gay. Blackmun was very close to his law clerks. To him, they were like grandchildren.

Perhaps? Skimming the opinions, there are TWO dissents from denial of certiorari. One by Rehnquist (which Blackmun joined) and one by Burger. All the dissents from denial of certiorari say, legally speaking, is that the dissenters though the Court should have heard the case.

Rehnquist's dissent was limited to viewing the issue in terms of policing student speech which may encourage violations of state law (Sodomy laws being constitutional at the time).

It was Burger's dissent, which Blackmun didn't join, that was overtly homophobic and compared being gay to having measles.


*********

Going back to an earlier post, if Powell had retired in 1982 out of satisfaction with the idea that his replacement would be an O'Connor-like Justice... (not that the Reagan Administration would have the same idea...)


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

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


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

A Bork or Wallace nomination would prompt a major fight and may or may not fail. The GOP has a 54-46 majority in 1982. For comparison...

• Rehnquist was confirmed for the position of Chief Justice in a 65–33 vote in 1986 (49 Republicans and 16 Democrats voted in favor; 31 Democrats and two Republicans voted against). Republicans had a 53 to 47 Majority in 1986.
• Bork failed 58-42 in 1987 (40 Republicans and 2 Democrats voted in favor; 52 Democrats and 6 Republicans voted against). Democrats had a 54-46 majority in 1987.

 

[Ricardolindo]

Perhaps? Skimming the opinions, there are TWO dissents from denial of certiorari. One by Rehnquist (which Blackmun joined) and one by Burger. All the dissents from denial of certiorari say, legally speaking, is that the dissenters though the Court should have heard the case.

Rehnquist's dissent was limited to viewing the issue in terms of policing student speech which may encourage violations of state law (Sodomy laws being constitutional at the time).

It was Burger's dissent, which Blackmun didn't join, that was overtly homophobic and compared being gay to having measles.

Thanks for this. I knew Rehnquist's dissent in Ratchford v. Gay Lib was just a dissent from a grant of certioari. The two dissents have been confused. Even Rehnquist's Wikipedia page confuses them at https://en.wikipedia.org/wiki/William_Rehnquist#LGBT_rights. So does The Advocat at https://books.google.pt/books?id=IG...=2ahUKEwjeo9Pyh8L3AhUNvaQKHcj9CIcQ6AF6BAgLEAM. Both sources cite Joyce Murdoch and Deborah Price's book Courting Justice.

 

[Ricardolindo]

What if Frank Murphy and Wiley B. Rutledge had not died in the summer of 1949? The Supreme Court would have been more liberal as Tom C. Clark and Sherman Minton were more conservative than them. The liberal wing of Black, Douglas, Murphy and Rutledge would survive. What cases would go the other way?

 

[Ricardolindo]

Going back to an earlier post, if Powell had retired in 1982 out of satisfaction with the idea that his replacement would be an O'Connor-like Justice... (not that the Reagan Administration would have the same idea...)

As you, yourself, noted, though, Sandra Day O'Connor was more conservative at the time than she would be years later.

Going back to an earlier post, if Powell had retired in 1982 out of satisfaction with the idea that his replacement would be an O'Connor-like Justice... (not that the Reagan Administration would have the same idea...)


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

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


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

A Bork or Wallace nomination would prompt a major fight and may or may not fail. The GOP has a 54-46 majority in 1982. For comparison...

• Rehnquist was confirmed for the position of Chief Justice in a 65–33 vote in 1986 (49 Republicans and 16 Democrats voted in favor; 31 Democrats and two Republicans voted against). Republicans had a 53 to 47 Majority in 1986.
• Bork failed 58-42 in 1987 (40 Republicans and 2 Democrats voted in favor; 52 Democrats and 6 Republicans voted against). Democrats had a 54-46 majority in 1987.

Why do you say "perhaps Kennedy"? Was Anthony Kennedy more socially conservative then than he would be years later.

 

[Ricardolindo]

Inspired on https://www.alternatehistory.com/fo...justice-and-hughes-doesnt-run-in-1916.497734/:
What if Taft had nominated Charles Evans Hughes to succeed Melville Fuller as Chief Justice instead of elevating Associate Justice Edward Douglass White?

 

[Jackson Lennock]

Inspired on https://www.alternatehistory.com/fo...justice-and-hughes-doesnt-run-in-1916.497734/:
What if Taft had nominated Charles Evans Hughes to succeed Melville Fuller as Chief Justice instead of elevating Associate Justice Edward Douglass White?

Taft wouldn't accept being Associate Justice later on. Hughes would lead a more progressive Court, which in practice could mean a more Conservative Court later on. Hammer v Dagenhart would go the other way, since White was replaced by Van Devanter as associate Justice. It would be a straightforward application of Champion v Ames. With the Court letting there be more federal regulatory power earlier on, there'd be less pressure later to break down all of the old limits.

US v Butler might also go differently. Hughes was part of the majority but (in a very John Roberts-esque way) thought it was appropriate under the taxing and spending power ... but opted to not write a separate dissent. No Wickard v Filburn.

If Butler and Dagenhart go the other way, the cases overruling them (Wickard and Darby) don't happen. Federal Regulatory power will still be broad, but not as broad as historically.

 

[Ricardolindo]

Taft wouldn't accept being Associate Justice later on. Hughes would lead a more progressive Court, which in practice could mean a more Conservative Court later on. Hammer v Dagenhart would go the other way, since White was replaced by Van Devanter as associate Justice. It would be a straightforward application of Champion v Ames. With the Court letting there be more federal regulatory power earlier on, there'd be less pressure later to break down all of the old limits.

US v Butler might also go differently. Hughes was part of the majority but (in a very John Roberts-esque way) thought it was appropriate under the taxing and spending power ... but opted to not write a separate dissent. No Wickard v Filburn.

If Butler and Dagenhart go the other way, the cases overruling them (Wickard and Darby) don't happen. Federal Regulatory power will still be broad, but not as broad as historically.

Would Hammer v. Dagenhart really go the other way? Willis Van Devanter would presumably be nominated to succeed David Brewer.

 

[Ricardolindo]

Not an alternate history question, but: Today I Learned there may have been a LGBT Justice. There is speculation that Frank Murphy was gay. Did anyone here know this? Do you think he really was gay or at least bisexual?

 

[Jackson Lennock]

Would Hammer v. Dagenhart really go the other way? Willis Van Devanter would presumably be nominated to succeed David Brewer.

Good point. I did not think about that.

It's worth considering that Hammer v. Dagenhart misquoted the tenth amendment.

Tenth Amendment
The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Dagenhart
In interpreting the Constitution, it must never be forgotten that the Nation is made up of States to which are entrusted the powers of local government. And to them and to the people the powers not expressly delegated to the National Government are reserved.


Maybe the astute Hughes would spot the difference and change somebody's mind. Or perhaps it was a deliberate inclusion OTL. I'm not sure.

 

[Jackson Lennock]

At the risk of getting too into current politics ...

If Ginsburg retired in 2013, Obama would have had an easy confirmation. Obama would nominate a woman to replace Justice Ginsburg, of course. OTL women considered for the Scalia seat (Ketanji Brown Jackson, Jane Kelly, and Patricia Millet) aren't options because none were on the bench yet as of January 2013.

Diane Wood is a possibility, but at 63 Obama might opt against that. Garland was 64, but that was trying to replace Scalia (ergo, put an old moderate on who won't be there too long in order to placate Republicans). On the other hand, Ginsburg was 60 when nominated. Other names considered for the seats that went to Sotomayor and Kagan were Jennifer Granholm (54), Leah Ward Sears (58), Janet Napolitano (56).

Obama might just be impressed by Wood personally though. She was interviewed by Obama for the Kagan and Sotomayor seats. Wood by this point has a reputation as a sharp defender of liberal jurisprudence facing off against two different faces of the judicial right: Frank Easterbrook and Richard Posner.

.........

Assuming that the Scalia hubbub is more or less the same as historically and the same goes for the 2016 election; Gorsuch replaces Scalia.

Without the possibility of replacing Ginsburg, Barrett might get the nod to replace Kennedy. The GOP (morbidly) seemed to want to "save" her for the prospect of a sudden Ginsburg seat opening up. But on the other hand, Kennedy seemed to want to be replaced by his favorite former clerk (see here). But it looks like other factors made Trump like Kavanaugh too (see here) and two other finalists (Hardiman and Kethledge) also were Kennedy clerks.

Roberts remains at the Center of the Court.

 

[Ricardolindo]

From David Tenner's thread https://www.alternatehistory.com/fo...first-jewish-us-supreme-court-justice.419139/: There could have been a Jewish Justice much earlier than Brandeis: Judah Benjamin. President Millard Fillmore actually offered him the nomination but he declined. If he had accepted it, he probably would have been confirmed.

 

[Jackson Lennock]

As you, yourself, noted, though, Sandra Day O'Connor was more conservative at the time than she would be years later.

Why do you say "perhaps Kennedy"? Was Anthony Kennedy more socially conservative then than he would be years later.

Kennedy joined Rehnquist's Webster majority, which would have stripped Roe to the bone without overruling it. He also was a fifth vote for overruling Roe in Planned Parenthood v. Casey before flipping.

O'Connor at the beginning also wanted to more or less gut Roe v. Wade without overruling it. The Casey Undue Burden standard + the Webster 'States can adopt whatever definition of compelling life they want' approach was her preference in her Akron dissent.

It's worth considering that the issue of the viability line has never been before the Court until the 2022 Dobbs Case. Even in Roe, it wasn't really briefed or argued, the Court just went with it. O'Connor seemed pretty annoyed in Webster that Rehnquist was going beyond the specific issue before the court (the standard of review for abortion regulations) and Scalia's Webster Concurrence (grumpily denouncing her for her judicial restraint) probably didn't warm her up to the idea of overruling Roe whole cloth. O'Connor liked evolution, not revolution.

You could notice that same year in Michael H v Gerald D (where a majority adopted a formula of substantive due process) O'Connor and Kennedy refused to join the entirety of Scalia's opinion, because its footnote 6 (explaining the theory) was plainly inconsistent with Griswold v. Connecticut and Roe v. Wade.

The idea of an activist majority going beyond the issue before the Court in Casey (abortion regulations), appointed by Presidents who for 12 years had been saying they were going to put up Justices who'd overrule Roe v Wade, clearly irked Kennedy, O'Connor, and Souter since it would paint them as political actors and the Court as a political institution.

From David Tenner's thread https://www.alternatehistory.com/fo...first-jewish-us-supreme-court-justice.419139/: There could have been a Jewish Justice much earlier than Brandeis: Judah Benjamin. President Millard Fillmore actually offered him the nomination but he declined. If he had accepted it, he probably would have been confirmed.

The man who could have been the first Jewish Justice was the Treasury Secretary of the Confederacy. Oomph.

 

[Ricardolindo]

Kennedy joined Rehnquist's Webster majority, which would have stripped Roe to the bone without overruling it. He also was a fifth vote for overruling Roe in Planned Parenthood v. Casey before flipping.

O'Connor at the beginning also wanted to more or less gut Roe v. Wade without overruling it. The Casey Undue Burden standard + the Webster 'States can adopt whatever definition of compelling life they want' approach was her preference in her Akron dissent.

It's worth considering that the issue of the viability line has never been before the Court until the 2022 Dobbs Case. Even in Roe, it wasn't really briefed or argued, the Court just went with it. O'Connor seemed pretty annoyed in Webster that Rehnquist was going beyond the specific issue before the court (the standard of review for abortion regulations) and Scalia's Webster Concurrence (grumpily denouncing her for her judicial restraint) probably didn't warm her up to the idea of overruling Roe whole cloth. O'Connor liked evolution, not revolution.

You could notice that same year in Michael H v Gerald D (where a majority adopted a formula of substantive due process) O'Connor and Kennedy refused to join the entirety of Scalia's opinion, because its footnote 6 (explaining the theory) was plainly inconsistent with Griswold v. Connecticut and Roe v. Wade.

The idea of an activist majority going beyond the issue before the Court in Casey (abortion regulations), appointed by Presidents who for 12 years had been saying they were going to put up Justices who'd overrule Roe v Wade, clearly irked Kennedy, O'Connor, and Souter since it would paint them as political actors and the Court as a political institution.



The man who could have been the first Jewish Justice was the Treasury Secretary of the Confederacy. Oomph.

I don't think O'Connor ever wanted to fully overturn Roe v. Wade. In he first years on the Court, she did look like a vote to overturn, though, which is partially why Bork's nomination faced such a strong opposition. As it was erroneously believed that O'Connor would vote to overturn Roe, it was thought that Bork would be the decisive fifth vote to overturn Roe.
Anyways, a quote of his in 1986 shortly following Bowers v. Hardwick at https://en.wikipedia.org/wiki/Anthony_Kennedy#Nomination_and_confirmation in which he gave some indication that he agreed with the decision that laws banning gay sex were constitutional stand out from Anthony Kennedy's later gay rights decisions. What do you think of that?

 

[Ricardolindo]

Posner, Coleman, and perhaps Kennedy would disappoint Social Conservatives.

While liberal on gay rights, isn't Richard Posner anti-Roe?

 

[Jackson Lennock]

I don't think O'Connor ever wanted to fully overturn Roe v. Wade. In he first years on the Court, she did look like a vote to overturn, though, which is partially why Bork's nomination faced such a strong opposition. As it was erroneously believed that O'Connor would vote to overturn Roe, it was thought that Bork would be the decisive fifth vote to overturn Roe.
Anyways, a quote of his in 1986 shortly following Bowers v. Hardwick at https://en.wikipedia.org/wiki/Anthony_Kennedy#Nomination_and_confirmation in which he gave some indication that he agreed with the decision that laws banning gay sex were constitutional stand out from Anthony Kennedy's later gay rights decisions. What do you think of that?

He probably thought about it more.

Bowers is weird. It's most consistent with the Griswold and Stanley 'stay out of my house' approach than Roe was. In Lawrence Kennedy said he wasn't protecting gay sodomy, he was protecting the privacy of all people to have peace in their own home and affairs and rejected the Equal Protection approach because it wouldn't let him do that. Romer v Evans amount to the majority saying the law was so malicious and plainly intended for no other reason than to stigmatize gay people, that it was irrational.

 

[Ricardolindo]

Had the Sixth Circuit ruled in favor of same-sex marriage, would the US Supreme Court have ever made an Obergefell analogue decision, legalizing same-sex marriage nationwide?

 

[Ricardolindo]

Had the Sixth Circuit ruled in favor of same-sex marriage, would the US Supreme Court have ever made an Obergefell analogue decision, legalizing same-sex marriage nationwide?

I know this is not a point of divergence changing the composition of the US Supreme Court but I didn't want to post a separate thread for it. Does anyone have any thoughts?

 

[Ricardolindo]

I'd be interested in book sources I could read in my free time, sure.

My understanding was Thomas was the first choice for the Brennan Seat but the timing didn't work because he'd only been on the DC Circuit for a few months. In his memoir, Thomas says that the sense that he'd been selected to replace Marshall on the basis of race had distressed him, and finding out from Gray a few years later that it probably cut against him (for the Marshall confirmation) because the Administration had publicly opposed affirmative action. To me it seems like Garza was the preferred choice for the Marshall seat, but the shortage of experience prevented his nomination the same way it prevented Thomas's.

What ambitions did Thornburgh have?



Yes, but the cases that year weren't that Conservative.

Rust v Sullivan (a case dealing with abortion) comes up as an example, but that case law-wise had more to do with administrative procedures and what strings the government could attach to grants of money to private actors.

There was Barnes v. Glen Theatre, Inc. in which Souter was the decisive fifth vote in ruling nude dancing was not constitutionally protected, though he concurred on different rationales than Rehnquist's plurality opinion and Scalia's concurrence. Both of those cited Bowers v. Hardwick. Ironically, Byron White who had written the majority opinion in Bowers v. Hardwick also wrote the dissent in Barnes v. Glen Theatre, Inc. Whether that was because of homophobia or him simply taking different views of the First Amendment, on one hand, and substantive due process, on the other hand, is an interesting question.

There was also Harmelin v. Michigan, in which the Supreme Court upheld life imprisonment without parole for possession of 672 grams of cocaine. Souter was also the decisive fifth vote in that case.